Published on 3 May 2021
FOURTH SECTION
Application no. 46263/20
Diana-Camelia BERCUCI
against Romania
lodged on 12 October 2020
communicated on 16 April 2021
SUBJECT MATTER OF THE CASE
The application concerns the proceedings for the return of the applicant’s child to the United Kingdom, where he was born (in July 2017) and where his father is still living. The child lived with the applicant since birth, and the father, who had not recognised the child at birth, was only granted parental authority in January 2018 and contact rights on 7 June 2018. On the latter date, the child’s residence was also set with the applicant.
The applicant, who claimed that her residence had always been in Romania, despite her occasional stays abroad while she was working under temporary contracts, was ordered to return the child to the United Kingdom by a decision of 14 June 2019 of the Bucharest County Court.
On 10 November 2019, upon her return to London for a work training, the applicant was remanded in custody having been charged by the British authorities with child abduction. On 28 November 2019 the applicant’s mother took the child back to his father in London.
In a final decision of 9 December 2019 the Bucharest Court of Appeal dismissed the appeal lodged by the applicant against the return order, on the grounds that it no longer needed to examine the initial request for the return of the child, in so far as father and child had been reunited.
Since her arrest in London, the applicant has been unable to see her child. On 9 September 2020, while the applicant was still in custody, the Central Family Court set the child’s residence with his father and granted the applicant supervised direct contact monthly for up to two hours, in the father’s home after she would be released from custody.
The applicant complains under Articles 3 and 8 of the Convention.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention, in the light of the proceeding for the return of her child to London, where his father lived, giving rise to the decision of 14 June 2019 of the Bucharest County Court and that of 9 December 2019 of the Bucharest Court of Appeal? In particular:
(a) is the County Court’s interpretation of the notion of “habitual residence” in the present case consistent with the requirements of Article 8 of the Convention (see, mutatis mutandis, Michnea v. Romania, no. 10395/19, § 46, 7 July 2020)?
(b) in assessing the possible exceptions to return, did the domestic courts take into account:
(i) the child’s particular situation (notably that he was raised exclusively by his mother, only spoke Romanian, and did not have any contact, or a common language, with his father); or
(ii) the risk that the applicant would face criminal sanctions if she returned to London and thus loose contact with the child whose residence had been set with her (see, notably, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 149, ECHR 2010)?
(c) was the refusal of the Court of Appeal to examine the applicant’s appeal against the return order consistent with the applicant’s right to respect for her family life?
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