BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF PASCAL v. ROMANIA
(Application
no. 805/09)
JUDGMENT
STRASBOURG
17
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Pascal v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Ineta Ziemele,
Mihai
Poalelungi,
Kristina Pardalos, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 805/09) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a French national, Mr David Denis Pierre Pascal
(“the applicant”), on 16 December 2008.
- The
applicant was represented by Mr Radu Gabriel Revnic, a lawyer
practising in Cluj Napoca. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
- As
Mr Corneliu Bîrsan, the judge elected in respect of Romania,
had withdrawn from the case (Rule 28 of the Rules of
Court), the President of the Chamber appointed Mr Mihai Poalelungi to
sit as ad hoc
judge (Article 26 § 4 of the Convention and
Rule 29 § 1 of the Rules of Court).
- The
applicant alleged, in particular, that the Romanian authorities had
failed to ensure the enforcement of judicial decisions granting him
visiting rights in respect of N.M.E.P., his under age daughter.
- On
21 September 2010 the President of the Third Section
decided to give notice of the application to the Romanian Government
and to invite the French Government to state whether they wished to
exercise their right to submit written comments in respect of the
case (Article 36 § 1 of the Convention). It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1 of the Convention).
- On
11 January 2011 the French Government informed the Court
that they did not wish to exercise their right to submit written
comments in respect of the present case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Cluj Napoca, Romania.
- The
applicant was married to O.M.M. and the couple had one daughter,
N.M.E.P., who was born on 8 June 2004.
A. Proceedings for interim and exceptional visiting
rights
- On
1 August 2006, following the applicant’s and O.M.M.’s
separation, he brought proceedings against O.M.M., seeking an
injunction for interim contact rights with his daughter.
- By
a judgment of 3 August 2006 the Cluj Napoca District
Court allowed the applicant’s action of 1 August 2006.
It held that the applicant could see his daughter every Sunday
between 10 a.m. and 1 p.m. at her mother’s house or
elsewhere. O.M.M. appealed against the judgment.
- By
a final judgment of 19 October 2006 the Cluj County Court
allowed an appeal by O.M.M. against the judgment of 3 August 2006
and ordered a retrial.
- By
a final judgment of 29 November 2006 the Cluj Napoca
District Court, in a second set of proceedings, allowed the
applicant’s action of 1 August 2006. It held that the
applicant could see his daughter every Sunday between 10 a.m.
and 1 p.m., at her mother’s house or elsewhere.
- On
7 March 2007 the applicant brought proceedings against
O.M.M., seeking an injunction for exceptional contact rights on 28,
29 and 30 March 2007 between 10 a.m. and 1 p.m.
- By
a final judgment of 8 March 2007 the Cluj Napoca
District Court allowed the applicant’s action in part and
acknowledged his right to visit his daughter exceptionally on
29 March 2007 between 10 a.m. and 1 p.m. at
O.M.M.’s home or elsewhere, on the ground that it was in the
best interest of the child to preserve family ties with her father
and her relatives.
- On
an unspecified date in 2007 the applicant brought proceedings against
O.M.M., seeking an injunction for exceptional contact rights on 29,
30 and 31 May and 1 June 2007 between 10 a.m. and
1 p.m.
- By
a final judgment of 24 May 2007 the Cluj Napoca
District Court allowed the applicant’s action in part and
acknowledged his right to visit his daughter exceptionally on 30 May
and 1 June 2007 between 10 a.m. and 1 p.m., at
O.M.M.’s home or elsewhere, on the ground that it was in the
best interest of the child to preserve family ties with her father
and her relatives.
- On
an unspecified date in 2007 the applicant brought proceedings against
O.M.M., seeking an injunction for exceptional contact rights for the
2007 Christmas holiday.
- By
a judgment of 20 December 2007 the Cluj Napoca
District Court allowed the applicant’s action for exceptional
contact rights for the 2007 Christmas Holiday. It held that given the
tense relationship between the parents it would be in the best
interest of the child and less stressful for her if she could meet
her father away from her mother’s home. Consequently, it
allowed the applicant to take the child away from her mother’s
home for seven days, starting on 22 December 2007. O.M.M.
appealed against the judgment.
- By
a final judgment of 1 February 2008 the Cluj County Court
dismissed O.M.M.’s appeal against the judgment of
20 December 2007. It held that the appeal was moot, as the
injunction of 20 December 2007 was enforced and her
daughter was returned to her after seven days.
B. Divorce and custody proceedings
- On
23 August 2006 the applicant brought divorce and child
custody proceedings against O.M.M.
- By
a judgment of 15 February 2007 the Cluj Napoca
District Court allowed the applicant’s action for divorce,
awarded sole custody of the child to O.M.M., and ordered the
applicant to pay monthly child support. By relying on witness
statements and on the Cluj Guardianship Authority’s
(Autoritatea Tutelară Cluj) social investigation and
recommendation the court held that the mother was the child’s
main caregiver. Consequently, it considered that the mother was able
to ensure N.M.E.P.’s emotional and physical development, and
that her presence was still essential, given the young age of the
child. The judgment was final, as neither the applicant nor O.M.M.
appealed against it.
C. Reports produced by the Centre for Abused Children
attached to Child Social and Protection Services
- On
25 September 2006 the County Centre for Abused Children
attached to the Child Social and Protection Services (Direcţia
Generală de Asistenţă Sociala şi Protecţia
Copilului – Centrul Judeţean de Intervenţie pentru
Copilul Abuzat) produced a psycho social report in respect
of N.M.E.P. According to the report the Centre for Abused Children
carried out an investigation into the case after they were informed
by O.M.M. that the child’s father had behaved inappropriately
towards his daughter by bathing with her without wearing underwear,
and had neglected the child when she was left alone with him. The
report also stated that following a discussion with both parents they
accused one another of inappropriate behaviour towards the child
which negatively influenced the minor’s behaviour. In addition
O.M.M. also accused the applicant of being physically aggressive
towards her in January 2006. Consequently, both parents were
invited, and agreed, to attend psychological counselling sessions at
the County Centre for Abused Children. The child’s father was
informed on several occasions that his behaviour in bathing naked
with his daughter could influence his relationship with her and could
have unforeseen negative consequences. The report concluded that the
child’s situation needed to be monitored and that the parents
needed to continue the psychological counselling sessions within the
centre.
- On
5 December 2007 the Centre for Abused Children attached to
the Child Social and Protection Services produced a psychological
evaluation report in respect of N.M.E.P. The report stated, inter
alia, that the child was developing normally for her age. She
felt closer to her mother and evaluated her in positive terms. She
started being upset when she was asked about her father. The father
was represented in a negative way because of the tense situation
between the parents. None of the father’s actions were received
positively, and she did not wish her father to visit, because of the
tense situation with her mother. She considered her father’s
visits to be a negative process. Her father was excluded from the
description of her family, which in her opinion consisted of her
mother and her maternal grandparents. She refused to discuss any
potential sexual abuse by her father. The report concluded that the
child was scarred by the tense situation between her parents, and
that consequently she did not wish to receive visits from her father.
Moreover, there was no clear evidence that she had been sexually
abused by either of her parents.
- On
6 December 2010 the Centre for Abused Children attached to
the Child Social and Protection Services informed the Government,
inter alia, that attempts were being made to mediate the
relationship between the applicant and his former wife to help them
protect the best interest of their child. In 2006 the parents were
asked to attend psychological counselling sessions. After four
meetings the applicant decided that the sessions were useless and
discontinued attending them.
D. Proceedings for permanent visiting rights
- On
an unspecified date in 2007 the applicant brought injunction
proceedings against O.M.M., seeking to establish a schedule for
visiting rights. He requested the court to order O.M.M. to allow him
to see his daughter on Sundays, on 8 May, 8 June, 14 July,
11 and 24 November; one week for Orthodox Easter and one for
Christmas every two years; in August; one week between
October December, January March and April June; and to
allow him to leave the country with the child for at least a week
during the time they spent together and in August 2007.
- By
a judgment of 7 June 2007 the Cluj Napoca District
Court allowed the applicant’s action in part, seeking to
establish a schedule for visiting rights. Relying on the statements
of the parties’ witnesses and on the report produced by the
County Centre for Abused Children attached to the Child Social and
Protection Services, the court held that the father could visit the
child and spend a few hours per week with her in the mother’s
absence. The absence of her mother would avoid any stressful
situation for the child caused by the tension between the parents.
Also the contact with her father would be welcomed by and beneficial
for the child as long as N.M.E.P. needed the attention of both
parents for her balanced emotional and physical development, which
could not be achieved in the presence of both parents. According to
the social investigation carried out at the applicant’s home,
his living conditions were appropriate. The fact that the supplement
to the social investigation, which the court did not order, mentioned
that the rooms of his home looked unwelcoming, without providing
details on why they would be unfit to host a child, could not be
considered a well-grounded reason for refusing the applicant contact
with his daughter. Moreover, O.M.M.’s arguments that the
applicant was not capable of taking care of the child were rebutted
by the available witness statements.
- In
respect of the applicant’s request to be allowed to
occasionally take the child out of the country the district court
held that regardless of the parent’s position, the minor had a
legal right to meet her relatives, including the paternal ones. The
paternal relatives met the child and had her well being at
heart. In N.M.E.P.’s case, she enjoyed ties with both Romanian
and French cultures, and she could not be denied the right to
maintain those direct contacts with the two countries. In addition,
no evidence supported O.M.M.’s argument that the applicant
would fail to return the child to Romania. The child had been left
alone with the applicant before and he had always returned her to her
mother. Moreover, the witnesses stated that whenever O.M.M. did not
agree to leave the child alone with him he did not insist on O.M.M.
doing so. Also, she never expressed concern that the applicant would
fail to return the child to her. The applicant’s failure to
indicate the dates for travelling abroad and for returning to Romania
by providing plane tickets could not be considered arguments for the
dismissal of his request, as it was the court’s task to set
those dates. Also, the applicant had provided the names and addresses
of all his relatives, where he would like to take the child.
Consequently, after it had been established that the schedule
suggested by the applicant was not in the minor’s best
interest, the court set a contact rights programme for the applicant
and allowed him to take the child away from O.M.M.’s home, even
in her absence and without her consent: on Sundays, on 14 July
and between 1 and 15 August; every second year on 8 June, a
week at Easter and a week at Christmas. In addition, the court
allowed the applicant to take the child out of Romania, even without
O.M.M.’s consent, every second year for a week at Easter and
for Christmas and yearly between 1 and 15 August. The parties
appealed against the judgment. O.M.M. asked the court, inter alia,
to order a psychological evaluation of the child, but the applicant
contested O.M.M.’s request.
- By
a judgment of 14 November 2007 the Cluj County Court
dismissed O.M.M.’s request for a psychological evaluation of
the child, on the ground that it would be inconclusive for the case,
and allowed the applicant’s appeal in part. It also allowed the
applicant to take the child away from O.M.M.’s home every year
on 24 November, even in her absence, and upheld the judgment of
7 June 2007. The judgment became final on 5 April 2008, as
the parties’ appeal on points of law (recurs) was
dismissed by the Cluj Court of Appeal.
- On
an unspecified date in 2009, following O.M.M.’s and his
daughter’s move to the United Kingdom on an unspecified date in
2009, the applicant brought proceedings against O.M.M., seeking a new
contact schedule and an injunction for his daughter to be brought to
his home at O.M.M.’s expense under the penalty of 50 new
Romanian lei (RON) (approximately 13 euros (EUR)) in daily
compensation for any delay on the following dates: every second
Sunday; every second year on 8 June, at Orthodox Easter and at
Christmas; and yearly between 1 and 15 August.
- By
a judgment of 12 November 2009 the Cluj Napoca
District Court allowed the applicant’s action in part. It held
that the change of the child’s residence to a different country
justified the applicant’s action for a new contact schedule.
However, the court considered that the schedule suggested by the
applicant was too tiring for the child, taking into account her young
age and her need to attend school. In this respect the court held
that the Orthodox Easter period would prove a good opportunity for
the applicant to visit his daughter at her home and would give him
the opportunity to meet the child in a familiar environment for the
latter. For the winter and summer holidays, when the applicant and
his daughter could spend more time together, he was allowed to take
his daughter away from her mother’s home, since there would be
enough time for the child to rest and play. Moreover, the court
considered that the parents must share the child’s travelling
expenses for the summer and winter holidays, while the travelling
expenses for Easter would be incurred by the father. Furthermore, on
account of O.M.M.’s previous obstructive behaviour with regard
to the enforcement of judgments, the court ordered her to pay a
RON 50 (approximately EUR 13) daily compensation for any
delay if she failed to comply with the contact schedule established
by the court, as follows: yearly at Orthodox Easter at the child’s
home in the United Kingdom, at the applicant’s expense and
between 1 and 15 August at both parents’ expense; and one
week every two years for Christmas at both parents’ expense.
The applicant appealed against the judgment.
- By
a judgment of 23 February 2010 the Cluj County Court
allowed the applicant’s appeal against the judgment of
12 November 2009, in part. It held that every two years at
Orthodox Easter, the child was to travel to Romania and stay at the
applicant’s home. The expenses would be borne by both parents
and the child would be accompanied by the mother on the outbound
flight from the United Kingdom and by the father on the return flight
home. Moreover, the father could travel to visit his daughter every
second month for the last weekend of the month, while the mother had
to bring the child to Romania to her father’s home every second
month for the last weekend of the month. Both parents had to pay
their own travelling expenses. The monthly travel visits could not
take place around the Easter and the Christmas period, when the
contact schedule established by the first-instance court applied.
Lastly, it upheld the remaining provisions of the judgment of
12 November 2009.
- The
applicant informed the Court on an unspecified date in 2011 that
O.M.M had appealed on points of law (recurat) against the
judgment of 23 February 2010, and that her appeal (recurs)
had been allowed. He submitted that the contact schedule had been
changed by the final judgment, in so far as he was forced to travel
to the United Kingdom on the last Sunday of every month to see his
daughter. Moreover, according to him the judgment did not refer to
the mother’s duty to bring his daughter to him for the
Christmas and summer holidays. Furthermore, for Easter he would be
able to see his daughter once every two years starting from 2010, but
only for two days and not for a week. The Easter holiday was the only
time the courts had ordered the mother to bring N.M.E.P. to him. The
applicant did not submit a copy of the alleged final judgment to the
file.
E. Enforcement proceedings
- On
20 August and 15 October 2006 a bailiff employed by
the applicant attempted to enforce the judgment of 3 August 2006.
The enforcement reports produced by the bailiff on the same dates
stated that O.M.M. had left her home with the intention of preventing
the enforcement of the judgment, although she had been notified of
the bailiff’s visits; and also that she allowed the applicant
to see his daughter at her home and in her presence but did not agree
for him to take her away.
- On
10 and 17 December 2006 a bailiff employed by the applicant
attempted to enforce the judgment of 29 November 2006. The
enforcement reports produced by the bailiff on the same dates stated
that O.M.M. allowed the applicant to see his daughter at her home but
did not agree for him to take her away.
-
On 29 March 2007 a bailiff employed by the applicant
attempted to enforce the judgment of 8 March 2007. The
enforcement report produced by the bailiff on the same date stated
that O.M.M. had allowed the applicant to see his daughter at her home
but did not agree that he could take her elsewhere, because N.M.E.P.
refused to leave with her father. Eventually, the two parents agreed
that their daughter could leave if she was accompanied by her mother.
- On
16 April 2008 a bailiff employed by the applicant attempted to
enforce the judgment of 7 June 2007. On the same date the
bailiff notified O.M.M. that on 25 April 2008 the applicant
wanted to take N.M.E.P. to France for a week at Easter.
- On
an unspecified date in 2008 O.M.M. contested the enforcement
proceedings opened against her on 16 April 2008.
- On
22 April 2008 the bailiff requested the Cluj Social
Assistance and Child Protection Agency to delegate a representative
to accompany him to O.M.M.’s home on 25 April 2008 on
account of O.M.M.’s previous repeated refusals to allow the
applicant to have contact with his daughter.
- On
25 April 2008 the bailiff accompanied the applicant to
O.M.M.’s home. The enforcement report produced by the bailiff
on the same date stated that it was impossible to enforce the
judgment, as neither the mother nor the daughter were present, and
O.M.M. had written to the applicant that she had gone on holiday for
Easter.
- On
12 May 2008 the Cluj Social Assistance and Child Protection
Agency informed the bailiff’s office that so far as the
enforcement proceedings were concerned the Agency was not party to
the proceedings, did not have legal standing and it did not have any
record of the child being placed under special protection measures.
- By
a judgment of 18 June 2008 the Cluj Napoca District
Court dismissed O.M.M.’s action contesting the enforcement
proceedings opened against her on 16 April 2008, on the ground that
they were lawful. There is no evidence in the file that O.M.M.
appealed against the judgment.
- On
15 July 2008 the bailiff made a second attempt to enforce
the judgment of 7 June 2007. On the same date the bailiff
notified O.M.M. that the applicant would visit her home on
1 August 2008 at 11 a.m. to take the child away for
the period between 1 and 15 August 2008.
- On
1 August 2008 the bailiff accompanied the applicant to
O.M.M.’s home. The enforcement report produced by the bailiff
on the same date stated that the child refused to leave with her
father and consequently O.M.M. did not agree to allow her to go.
F. Other judicial proceedings
- On
an unspecified date in 2006 the applicant brought proceedings against
O.M.M., seeking an injunction for a fine of between RON 20 and
RON 50 (approximately EUR 5 to 13) for every Sunday O.M.M.
refused to allow him to see his daughter as required by the final
judgment of 29 November 2006.
- By
a final interlocutory judgment of 30 January 2007 the
Cluj Napoca District Court dismissed the applicant’s
action for a fine. It held that according to the enforcement report
produced by the bailiff on 10 December 2006 O.M.M. had
allowed the applicant to see his daughter at her home and in her
presence, but that she had refused to allow him to take the child
away. In these circumstances the Court considered that O.M.M. had not
obstructed the enforcement of the judgment of 29 November 2006.
- On
4 February 2008 the applicant brought proceedings against
O.M.M., seeking an injunction for a RON 5,000 (approximately
EUR 1,250) security deposit and a civil fine of RON 50
(approximately EUR 13) for every day she prevented him from
enforcing the judgment of 7 June 2007.
- By
a judgment of 10 July 2008 the Cluj Napoca District
Court allowed the applicant’s action of 4 February 2008
in part. It ordered O.M.M. to pay a RON 30 fine for every day
she prevented the applicant from enforcing the judgment of
7 June 2007. In this respect it held that O.M.M. had
prevented the applicant on several occasions in 2008 from seeing his
daughter, either by not being at home or by refusing to allow him to
take his daughter away from her home. However, the court dismissed
his claim for a security deposit, on the ground that it had already
ordered O.M.M. to pay a fine for obstructing the enforcement of a
final judgment. The applicant appealed against the judgment.
- By
a judgment of 11 November 2008 the Cluj County Court
dismissed the applicant’s appeal against the judgment of
10 July 2008, on the ground that the applicant had already
been ordered to pay a fine. Moreover, forcing her to pay an
additional RON 5,000 penalty would be disproportionate, and
might affect the child due to the financial burden imposed on her
mother. The applicant appealed on points of law (recurs)
against the judgment.
- By
a final judgment of 18 February 2009 the Cluj Court of
Appeal allowed the applicant’s appeal on points of law against
the judgment of 11 November 2008 in part and ordered O.M.M.
to deposit on a bank account a payment of RON 3,000
(approximately EUR 750) in the applicant’s name. In also
upheld the remaining part of the judgment of 11 November 2008.
It held that while the mother’s financial stability had to be
considered, the child had a right to spend time with her father.
Moreover, the mother had a good income and the amount established by
the court for the warranty maintained a balance between the financial
burden imposed on O.M.M. and the aim of preserving family ties.
- On
17 April 2009 the applicant brought proceedings against
O.M.M., asking the court to establish the amount of the fine O.M.M.
had to pay following the judgment of 10 July 2008 and seeking an
injunction for O.M.M. to pay him RON 8,000 (approximately
EUR 2,000) in compensation for non pecuniary damage
following her repeated refusals to accept the enforcement of the
judgment of 7 June 2007.
- By
a judgment of 22 October 2009 the Cluj Napoca District
Court dismissed the applicant’s action of 17 April 2009.
It held that the court could not establish the amount of the fine
due, as the applicant had not been able to show how many times he had
been obstructed in the enforcement of the judgment of 7 June 2007
after O.M.M.’s duty to pay a fine was set by the court on
10 July 2008. Moreover, the tense relationship between the
parents, reflected also in his relationship with his daughter, did
not allow the applicant always to see his daughter in the
circumstances he would have wished. While separation from one’s
child after divorce implied a certain suffering, this was not of such
a level as to engage O.M.M.’s civil liability. The problems
faced by the applicant, in particular his former wife’s
behaviour, had already been punished by the courts, which had obliged
her to set up a security deposit in his favour. In addition, the fact
that his daughter had left Romania and he had not been able to see
her since February 2009 could not have caused him additional
suffering, since he was notified about his ex-wife’s decision,
was informed of his daughter’s address in the United Kingdom,
and had brought proceedings for the contact rights schedule to be
changed. Consequently, pending those proceedings, his only discomfort
was caused by the fact that he did not live in the same country as
his daughter any more. The applicant appealed against the judgment.
- By
a final judgment of 5 May 2010 the Cluj County Court
dismissed the applicant’s appeal against the judgment of
22 October 2009 as time barred.
G. Criminal proceedings brought by the applicant
against O.M.M.
- On
15 January 2008 the applicant brought criminal proceedings
against O.M.M. for obstructing the enforcement of the judgments
allowing him contact rights with his daughter. He argued that
although he had attempted repeatedly to enforce the judgments of
29 November 2006, 7 June and 20 December 2007
and the judgments allowing him exceptional contact rights with his
daughter for 29 March, 30 May and 1 June 2007, he
had been unable to do so because of O.M.M.’s behaviour.
- By
a judgment of 11 March 2008 the Cluj Napoca District
Court dismissed the applicant’s criminal complaint of
15 January 2008, on the ground that O.M.M.’s
behaviour could not be classified as criminal. However, the court
applied an administrative sanction, issuing O.M.M. with a warning. It
held, inter alia, that although O.M.M. had obstructed the
enforcement of final court judgments, her conviction would not serve
and adequate purpose considering that the parties have a child
together and a conviction could also influence the future of the said
child, particularly if O.M.M. did not change her behaviour. The
applicant appealed against the judgment.
- By
a final judgment of 2 July 2008 the Cluj County Court
dismissed the applicant’s appeal against the judgment of
11 March 2008. It underlined, inter alia, that,
according to a report produced by the County Centre for Abused
Children attached to the Child Social and Protection Services
following counselling sessions with the parties which were quit by
the father, the child was affected by the conflict between her
parents and considered her mother to be “good” and her
father to be “bad” and wanted him to “leave her
alone” and to stop visiting her. The child was closer to her
mother and was somewhat detached from her father, even rejecting him
of her own accord, whether or not induced to do so by her mother. In
this context, the court held that although O.M.M. obstructed the
enforcement of final court judgments it could not be argued that she
did not have in mind the best interest of her child. She allowed the
father to visit the child at her home and in her presence.
Consequently, given the tense relations between the parents and the
need of the child, convicting O.M.M. would not serve any purpose, as
it would preserve, inter alia, the child’s feelings
of uncertainty.
H. The applicant’s letters to the Court
- In
a letter addressed to the Court in December 2008 the applicant
stated that from July 2006 until December 2008 he had
attempted to exercise his acknowledged visiting rights 108 times. All
the attempts of the applicant to visit his daughter according to the
schedule established by final judgments were obstructed by the
categorical refusal of O.M.M. to let him take the minor away from her
home, and whenever he was allowed to see his daughter he was
compelled to agree to the visits taking place in her presence, or
else in the presence of the minor’s maternal grandmother.
Consequently, he lodged 107 criminal complaints against O.M.M. for
non compliance with the provisions of the final judgments
allowing him personal contact with his daughter.
- In
a letter addressed to the Court on an unspecified date in 2011 the
applicant stated that he had no knowledge of his daughter’s
whereabouts and that he had not seen her for a year and a half. His
former wife had allegedly moved from the address he had known in the
United Kingdom and had not notified him of the new address. Moreover,
although the domestic courts had been informed about the mother’s
failure to notify him of his daughter’s new address during the
proceedings seeking to change the contact rights schedule, they did
not order her to disclose it to him. Consequently, he was unable to
contact or see his daughter.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic legal provisions are set out in the Court’s
judgments in the cases of Lafargue v. Romania (no. 37284/02,
§§ 64-69, 13 July 2006), and Costreie v.
Romania (no. 31703/05, §§ 55-58,
13 October 2009). The role and responsibilities of the
local public authorities in respect of social assistance and child
protection, as well as the relevant provisions of the Child
Protection Act (no. 272/2004), are described in the judgment in
the case of Amanalachioai v. Romania, (no. 4023/04,
§§ 56 and 59, 26 May 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that his right to respect
for his family life had been infringed as a result of the
non enforcement of the final judgments granting him visiting
rights in respect of N.M.E.P., his minor child. He relied on
Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
Submissions of the parties
(i) The applicant
- The
applicant submitted that although he had used all the legal remedies
available to him in order to enforce the judgments granting him
visiting rights to his daughter they all proved ineffective. He
argued that the authorities had refused to enforce the judgments,
mainly as a result of the obstructive behaviour of the mother and the
passivity of the bailiff and of the police. The authorities also
failed to take additional preparatory measures to facilitate his
visits. Moreover, he lodged more than a hundred criminal complaints
against his former wife for obstructing the enforcement proceedings,
but some of those complaints are still pending before the domestic
authorities. Furthermore, although his former wife was sentenced to
pay fines and a security deposit for obstructing the enforcement
proceedings, the situation did not change.
- He
argued that between 2006 and 2009, in spite of all the judgments
granting him more extensive visiting rights, he succeeded in visiting
his daughter only a few times very briefly, and only at his former
wife’s home and in her presence. From 2009 he was unable to see
his daughter any more as she was taken to the United Kingdom by her
mother. He obtained an injunction changing his contact rights
according to his daughter’s present living situation, but he
was unable to see her as he was unaware of her new address, and the
domestic courts allegedly failed to oblige his wife to notify it to
him.
- By
relying on the Court’s case-law (see inter alia,
Lafargue, cited above; Costreie, cited above; and
Ignaccolo-Zenide v. Romania, no. 31679/96, ECHR 2000-I)
the applicant concluded that he had been de facto
deprived of his parental rights without any legal basis as a result
of the domestic authorities’ failure to quickly and effectively
enforce the judgments granting him contact rights and to punish his
former wife’s obstructive behaviour towards the enforcement
proceedings.
The Government
- While
acknowledging that the non enforcement of a judgment granting
contact to a parent may generally constitute an infringement of the
rights guaranteed by Article 8 of the Convention, the Government
contended that in the present case the State’s positive
obligations needed to be assessed in the light of the best interests
of N.M.E.P., while also taking into consideration the particularities
of the case, namely the tense situation between the parents and the
child’s negative views about her father.
- They
argued that the authorities acted diligently and accomplished their
duties related to the enforcement of the judgments. The applicant was
granted regular contact with his daughter by way of judicial
decisions and the bailiff took immediate action to enforce the said
decisions by issuing summons and accompanying the applicant to the
child’s home on the dates of his visits. While the government
acknowledged that the enforcement attempts were not successful, they
underlined that the mother’s obstructive behaviour was not the
sole reason for the failed visits. The reports prepared by the
bailiff on several occasions indicate that the enforcement attempts
had also failed due to the child’s reluctance to join her
father.
- By
relying on the case of Fuşcă v. Romania,
no. 34630/07, § 43, 13 July 2010,
they argued that the situation in the present case was delicate and
it was unlikely that the focus on civil enforcement proceedings could
have improved the situation. Consequently, a more sensitive approach
towards the child was needed for the successful enforcement of the
contact rights. Therefore, in this context, and having regard
to the child’s attitude of rejection towards her father, the
State authorities had complied with their positive obligations under
Article 8.
The Court’s assessment
(i) Relevant principles
- The Court reiterates at the outset that the mutual
enjoyment by parent and child of each other’s company
constitutes a fundamental element of “family life” within
the meaning of Article 8 of the Convention (see, among other
authorities, Monory v. Romania and Hungary, no. 71099/01,
§ 70, 5 April 2005).
- The
Court further reiterates that the essential object of Article 8
is to protect the individual against arbitrary action by public
authorities. In addition, there may be positive obligations inherent
in effective “respect” for family life. In both contexts
regard must be had to the fair balance that has to be struck between
the competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation (see Keegan v. Ireland, 26 May 1994,
§ 49, Series A no. 290).
- In
relation to the State’s obligation to take positive measures,
the Court has held that in cases concerning the implementation of the
contact rights of one of the parents, Article 8 includes a
parent’s right to the taking of measures with a view to his
being reunited with his child and an obligation on the national
authorities to facilitate such reunion, in so far as the interest of
the child dictates that everything must be done to preserve personal
relations and, if and when appropriate, to “rebuild” the
family; the State’s obligation is not one of result, but of
means (see, among other authorities, Ignaccolo-Zenide, cited
above, § 94; Nuutinen v. Finland, no. 32842/96,
§ 127, ECHR 2000 VIII; Hokkanen v. Finland,
23 September 1994, § 55, Series A no. 299 A;
Gnahoré v. France, no. 40031/98, § 59,
ECHR 2000 IX; and Nistor v. Romania, no. 14565/05,
§§ 70, 109, 2 November 2010).
- In
cases concerning the enforcement of decisions in the sphere of family
law, the Court has repeatedly held that what is decisive is whether
the national authorities have taken all necessary steps to facilitate
the execution, as far can reasonably be demanded in the special
circumstances of each case (see Hokkanen, cited above, § 53;
Ignaccolo-Zenide, cited above, § 96; Nuutinen,
cited above, § 128; and Sylvester v. Austria,
nos. 36812/97 and 40104/98, § 59, 24 April 2003).
The adequacy of the measures taken is to be judged by the swiftness
of their implementation, as the passage of time can have irremediable
consequences for the relationship between the child and the parent
who does not live with him or her; at the same time the use of
sanctions must not be ruled out in the event of unlawful behaviour by
the parent with whom the children live, even though coercive measures
against the children are not desirable in this sensitive area (see
Ignaccolo-Zenide, cited above, §§ 102 and 106).
- The
Court further reiterates that active parental participation in
proceedings concerning children is required under Article 8 of
the Convention in order to ensure the protection of their interests,
and that when an applicant applies for enforcement of a court order,
his conduct as well as that of the courts is a relevant factor to be
considered (see Glaser v. the United Kingdom, no. 32346/96,
§ 70, 19 September 2000).
- Finally,
as the Court has repeatedly held, in matters relating to their
custody, the interests of children are of paramount importance. The
child’s best interests must be the primary consideration (see,
to that effect, Neulinger and Shuruk v. Switzerland [GC],
no. 41615/07, § 134, 6 July 2010, and Płaza
v. Poland, no. 18830/07, § 71,
25 January 2011) and may, depending on their nature
and seriousness, override those of the parents (see Sahin
v. Germany [GC], no. 30943/96, § 66,
ECHR 2003-VIII).
(ii) Application of the above principles
to the present case
- The
Court notes that the enforcement proceedings at issue clearly concern
the applicant’s “family life” within the meaning of
Article 8 of the Convention (see H. v. the United
Kingdom, 8 July 1987, § 90, Series A
no. 120).
- The Court’s first task in the present case is
therefore to consider whether, in the light of the relevant
principles in its case law, the measures taken by the Romanian
authorities were as adequate and effective as could reasonably have
been expected in the circumstances of the case for the facilitation
of reunion between the applicant and his child, N.M.E.P., so as to
comply with the provisions of the final judgments awarding him
contact rights. Also, in determining whether the non enforcement
of the contact arrangements amounted to a lack of respect for the
applicant’s family life, the court must examine whether a fair
balance was struck between the various interests involved, namely the
interests of the child and her mother, those of the applicant
himself, and the general interest in ensuring respect for the rule of
law (see also D. v. Poland (dec.), no. 8215/02,
14 March 2006).
- The
Court notes that the domestic courts granted sole custody of the
child to the mother and that the applicant failed to appeal against
this decision. The Court also observes that the applicant was granted
by way of judicial decisions a right to regular contact with his
daughter. The problems concerning the implementation of those contact
rights arose immediately after the rights in question had been
determined by the domestic courts; the applicant thus had to request
the services of a bailiff in order to enforce the execution of his
contact rights.
- In
its assessment of the domestic authorities’ conduct in respect
of the enforcement of the judgments granting the applicant visiting
rights, the Court notes that the domestic courts allowed the
applicant’s requests for interim or permanent visiting rights
without any undue delay; the requests lodged on 1 August 2006
and in 2007 were allowed on 3 August 2006 and on
14 November 2007 respectively, for example.
- The
bailiff took immediate action to enforce the judgments by issuing the
first summons on 20 August 2006; he subsequently issued
several further summonses, following each of the applicant’s
requests, and accompanied the applicant to the child’s home on
each of the dates set for his visits.
- In
addition, the applicant has never complained before the domestic
courts about any action and/or potential omission on the part of the
bailiff.
- While
it is true that the enforcement attempts were less than successful
(see paragraphs 33 35 above), the Court notes that the
attitude of the mother, even though a determining factor in the
applicant’s inability to fully enforce the judgments awarding
him contact rights, was also caused by the child’s
unwillingness to see her father. Indeed, this is what the domestic
authorities held in reply to the applicant’s criminal complaint
regarding the mother’s behaviour (see paragraph 55 above).
In this respect, the Court does not discern any arbitrariness in the
authorities’ decisions not to pursue O.M.M. criminally.
Moreover, their reasoning, stressing that O.M.M.’s behaviour
concerned the best interest of the child, does not appear devoid of
merit (see, mutatis mutandis, Sbârnea v.
Romania, no. 2040/06, § 119,
21 June 2011). In this context, even assuming that
the applicant’s allegation of an additional pending 107
criminal complaints lodged by him against his former wife were true,
the Court does not discern how the alleged failure of the domestic
authorities to deal with all those complaints or with some of them
would have influenced his ability to enforce the judgments awarding
him contact rights in respect of his daughter or improve his
relations with the daughter.
- The
Court further notes that in 2009, the civil courts also fined the
mother for every day that she failed to comply with the contested
judgments and ordered her to place a sum on deposit in the
applicant’s name (see paragraphs 30 and 48 above).
- In
this context, the Court considers that the conflict between the
applicant and O.M.M. made it particularly difficult for the domestic
authorities to act in order to fully enforce the applicant’s
visiting rights. Consequently, the Court finds that the authorities
diligently examined the applicant’s successive complaints
against O.M.M., and that the fines and security deposit ordered could
not be considered unreasonably low, regard being had to the fact that
larger fines and a higher deposit might have threatened the
well being of the child and the aim of building closer family
ties (see D. v Poland, cited above, and Fuşcă,
cited above, § 48).
- The
Court further observes that the child’s reluctance to see her
father was a constant element throughout the years, as evidenced not
only by the reports prepared by the bailiff (see paragraph 43
above), but also by the reports prepared by the County Centre for
Abused Children attached to Child Social and Protection Services (see
paragraph 23 above) and by the findings of the criminal and civil
courts (see paragraphs 51 and 54 above). However, whatever the
reason for N.M.E.P.’s attitude, her reluctance cannot be
imputed to the domestic authorities.
- Moreover,
the tense situation between the parents and O.M.M.’s
obstructive behaviour with regard to the enforcement of the judgments
was constantly acknowledged by the domestic authorities (see
paragraphs 18, 26, 30, 46, 50 and 54 above) who repeatedly
delivered reasoned judgments that gave primary consideration to the
best interest of the child.
- In
the light of the delicate family situation presented by the instant
case, the Court finds it very difficult to accept that ordinary civil
enforcement proceedings could in themselves have improved the
situation at hand. It considers that the facts of the case indicated
clearly that a more sensitive approach towards the child was needed
for the successful enforcement of the applicant’s contact
rights. In this connection, the Court notes that the applicant
did not request the assistance of social services or of a
psychologist with a view to exploring other possibilities of
approaching his estranged daughter, and when he had the opportunity
to attend psychological counselling sessions with his former wife
(see paragraph 24 above) he discontinued attending them after
four sessions (see, by contrast, Nistor, cited above,
§ 105).
- The
Court is aware that in difficult situations as the present one,
involving unresolved issues between parents, a certain amount of time
has to pass for the parents to be able to overcome emotional hurdles
and establish a mature relationship focusing on the best interests of
the child (see Trdan and Ć. v. Slovenia, no. 28708/06,
§ 96, 7 December 2010). However, re establishing
contact with a child in such delicate circumstances requires
long term efforts on the part of all those concerned
notwithstanding the public authorities’ positive obligations to
ensure the enforcement of contact rights, thereby protecting the
applicant’s right to respect for his family life. The Court
reiterates in this connection that the obligation to take measures to
facilitate contact is not absolute; moreover, it is an obligation of
means, and not one of result.
- As
regards the applicant’s allegations that from 2009 he had been
unable to visit his daughter because he was not informed about his
daughter’s alleged new address in the United Kingdom, the Court
notes that, even if it was appropriate for the mother to inform the
applicant about the address, there is no evidence in the file that
the applicant made any attempts to approach either the Romanian or
the British authorities in order to obtain the new address and the
enforcement of the judgment establishing his changed contact
schedule.
- As regards the applicant’s allegations that the
domestic courts dealt with the enforcement applications brought
before them with unreasonable delay, thus obstructing his parental
rights with respect to his daughter, the Court notes that in spite of
the numerous proceedings of a civil and criminal nature relating to
the applicant’s contact with his child, the actual enforcement
proceedings relating to the impugned judgments were never stayed by
any court, and thus those proceedings cannot be regarded as having
per se obstructed the exercise of the applicant’s
rights of contact.
- In
the light of the foregoing and in view of the margin of appreciation
afforded to the national authorities, the Court considers that their
handling of the applicant’s case had due regard to the best
interests of the child in question and of the family as a whole,
while taking all the steps to enforce the applicant’s contact
rights which could reasonably have been required in the very
difficult situation at hand.
Accordingly,
in the circumstances of the case there has been no violation of
Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the
Convention of the outcome of the criminal proceedings brought by him
against his former wife in so far as he stated that the authorities
had shown themselves to be partial and to favour his wife, and that
the same facts as those which constituted the alleged violation of
Article 8 of the Convention also gave rise to a breach of
Articles 13 and 5 of Protocol No. 7 to the Convention.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as they fall within its jurisdiction, the Court finds that
these complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaint under
Article 8 of the Convention concerning the non-enforcement of the
final judgments granting him visiting rights in respect of his
daughter admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
