FOURTH SECTION
DECISION
Application no. 39398/20
Mariana-Dana CIOCÎRLAN
against Romania
The European Court of Human Rights (Fourth Section), sitting on 7 February 2023 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 39398/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 August 2020 by a Romanian national, Ms Mariana-Dana Ciocîrlan, who was born in 1984 and lives in Horpaz (“the applicant”) who was represented by Ms C.B. Dumitriu, a lawyer practising in Iaşi;
the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by Mr Sergiu Ciocîrlan, who was granted leave to intervene by the President of the Section;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns an alleged infringement of the applicant’s right to respect for her family life, by a court ordering that her children return to their father’s home in the Netherlands.
THE FAMILY BACKGROUND2. The applicant married Mr Ciocîrlan in 2010. In April 2012 they moved to the Netherlands together with their daughter, X, born in 2011. Their son, Y, was born in the Netherlands in 2016.
3. According to the applicant, from December 2018 when she lost her job, Mr Ciocîrlan was physically and verbally abusive towards her and encouraged the children to behave in the same way. These assertions were contested by Mr Ciocîrlan, who admitted to three episodes of domestic violence and explained that each had been caused by the applicant who had been physically and verbally abusive towards him.
4. In March 2019 X told the school counsellor that her father was violent towards the applicant. The authorities started an investigation into the family situation. Mr Ciocîrlan talked about the incidents of domestic violence (see paragraph 3 above) and informed the authorities that the applicant had been violent towards the children.
5. On 17 April 2019, when the family were scheduled to leave for their planned vacation in Romania, Mr Ciocîrlan decided to stay in the Netherlands with X who would otherwise have missed one week of school. He allegedly told the applicant not to return with Y to the Netherlands and asked her to seek a divorce.
6. On 28 April 2019 the applicant and Y returned to the Netherlands, but on 4 May 2019 she left permanently for Romania, taking both children with her. They lived first in the family home in Romania, which was owned by Mr Ciocîrlan, and in May 2019 they moved to a rented flat.
7. On 15 May 2019 the applicant lodged an application for divorce and custody of the children which is currently pending with the Iaşi County Court. She also sought at least two interim orders establishing the children’s residence with her during the divorce proceedings. The latter requests were dismissed for lack of jurisdiction on 12 March 2020 by the Iaşi County Court and on 28 July 2020 by the Iaşi District Court.
PROCEEDINGS FOR THE CHILDREN’S RETURN8. On 14 June 2019 Mr Ciocîrlan filed an action with the Bucharest County Court seeking the return of the children to their habitual place of residence in the Netherlands. He relied on the provisions of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”).
9. The applicant, assisted by counsel, opposed the request and retorted that she had left with the children because her husband had been violent and had posed a threat to their children.
10. In a decision of 3 October 2019 the County Court dismissed the request for return. It established that the children’s habitual residence was in the Netherlands and that they had been retained in Romania without their father’s consent. However, it considered that if returned, they would face a grave risk of physical or psychological harm, as Mr Ciocîrlan had admitted that he had hit his wife in the children’s presence (Article 13 § 2 of the Hague Convention). The court considered that, bearing in mind the children’s best interest, those findings overrode the conclusions of a psychological evaluation which had been undertaken in an unrelated set of proceedings concerning the parents, and in which it had been noted that X did not like living in Romania, was sad and missed her home, friends and activities in the Netherlands.
11. On 13 November 2019 Mr Ciocîrlan returned temporarily to the family home in Romania. On 14 November 2019 X moved in with him.
12. On 2 December 2019 Mr Ciocîrlan appealed against the County Court’s decision (see paragraph 10 above). The applicant reiterated that the children faced a grave risk in their father’s presence.
13. The Bucharest Court of Appeal (hereinafter “the Court of Appeal”) decided to hear X, thus overruling opposition from the applicant’s counsel. On 20 February 2020, in the presence of a psychologist, X told the judge from the Court of Appeal that the applicant had beaten her in the past but her father had never done so. She said that she wanted to return to live with her father and brother in the Netherlands and that she liked school better in that country.
14. In a final decision of 24 February 2020 the Court of Appeal ordered the children’s return to the Netherlands. It considered that the applicant had failed to demonstrate that the children would be subject to a grave risk of harm in the Netherlands. The court took note of X’s statements from the psychological evaluation (see paragraph 10 in fine above) and from the interview with the judge which showed that she was unhappy in Romania and wished to return to the Netherlands. The court considered that her attitude clearly indicated that she had not been traumatised by witnessing her parents fighting. It further noted that the Dutch authorities were already inquiring into the situation and were assisting and counselling the family.
15. On 6 March 2020 Y left his mother’s flat and moved in with his father and sister.
16. On 17 June 2020 Mr Ciocîrlan took the children back to the Netherlands.
17. The applicant complained, under Article 8 of the Convention, that the Romanian courts ordered the children’s return to the Netherlands and that by so doing, they had deprived her of the possibility to maintain personal relations with them.
THE COURT’S ASSESSMENT
18. The relevant principles regarding the interference with the right to respect for family life as well as the State’s positive obligations under Article 8 of the Convention in cases concerning the return of a child under the Hague Convention are summarised in X v. Latvia ([GC], no. 27853/09, §§ 92‑108, ECHR 2013) and have been reiterated in Michnea v. Romania (no. 10395/19, §§ 35-39, 7 July 2020).
19. The final decision of 24 February 2020 of the Court of Appeal ordering the children’s return to the Netherlands (see paragraph 14 above) constituted an interference with the applicant’s right to respect for her family life, which was however provided for by the domestic law and pursued the legitimate aim of protecting the children’s rights and freedoms (see Voica v. Romania, no. 9256/19, §§ 54-57, 7 July 2020).
20. As for the justification, it was uncontested that when she moved to Romania with the children, the applicant, who at the time was still married to Mr Ciocîrlan, shared parental authority with him (see paragraph 7 above) and that the children’s habitual residence was in the Netherlands (see paragraph 10 above).
21. What was contested was the manner in which the domestic courts examined the exceptions to return relied upon by the applicant under Article 13 of the Hague Convention (see paragraph 9 above). However, when ordering the return of the children, the Court of Appeal examined in detail the case, assessed the risk faced by the children in their father’s presence and took into account the psychological evaluation and the opinions expressed by X, who was 9 at that time, during the interview with the judge who in charge of the case (see paragraphs 2 and 13-14 above).
22. Moreover, the Court of Appeal did not downplay the alleged risk of domestic violence, but noted that the Dutch authorities were already monitoring the family (see paragraph 14 above in fine, as well as paragraph 4 above). On this point, the Court notes that as member States of the European Union (“the EU”), both States are parties to the Brussels II bis Regulation, which is thus applicable to the case (see K.J. v. Poland, no. 30813/14, § 58, 1 March 2016). That Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States (see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018) which, in the circumstances of the present case, was sufficient to justify deference to the Dutch authorities and their commitment to protect the children properly when they returned to the Netherlands.
23. Furthermore, the present dispute was determined following adversarial proceedings, throughout which the applicant, legally represented, had the opportunity to present her case fully (see paragraphs 9, 12 and 13 above, and Blaga v. Romania, no. 54443/10, § 67, 1 July 2014).
24. The Court finds that the Court of Appeal’s reasoning is specific in the light of the very particular circumstances of the applicant’s case (ibid., § 70, and, in contrast, Michnea, cited above, §§ 48-50). It has thus no strong reasons to substitute its own assessment of the facts and the evidence for that of the Romanian authorities (see Voica, cited above, § 53).
25. Moreover, the outcome of the proceedings for the return of the children does not preclude the parents from seeking custody and contact arrangements before the courts with jurisdiction in the matter.
26. Having regard to all of the above, the Court considers that the present case does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 March 2023.
Crina Kaufman Faris Vehabović
Acting Deputy Registrar President