Communicated on 29 March 2017
FOURTH SECTION
Application no. 61282/16
D.D.F. and Others
against Romania
lodged on 10 October 2016
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix. They are Italian nationals and are represented before the Court by B. Randazzo, a lawyer practicing in Milan.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The first applicant is the father of the second applicant, born in Italy in April 2013. The second applicant’s mother, T.G.S., is a Romanian national. On 13 June 2013 the first applicant agreed that the second applicant may travel to Romania without him. On 15 June 2013, the first applicant and T.G.S. went to Romania with the second applicant to spend holidays. On 21 July 2013 the first applicant returned to Italy. T.S.G. was expected to return with the second applicant on 27 July 2013; however, she informed the first applicant that she and the baby would remain in Romania, because she did not benefit from a calm environment in Italy to take care of the infant.
4. On 31 October 2014 the Bucharest Court of Appeal dismissed the request lodged by the first applicant under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), as it considered that the child’s residence had been lawfully established in Romania.
5. On 6 February 2015 the Bucharest District Court of the Sixth Precinct granted joint custody to the first applicant and T.G.S. and established that the second applicant would live with his mother; the first applicant was ordered to pay alimony in favour of his son.
A. Visiting rights
6. On 7 January 2015 the first applicant lodged a request with the Bucharest District Court of the Sixth Precinct seeking to have personal relations with the second applicant, notably to visit with him according to a proposed schedule and to communicate with him via e-mail and Skype every day. He explained that T.G.S. had denied him the possibility to maintain contact with his son and that the situation had worsened because of the legal disputes between them. The few visits he managed to have with his child were always strained and the Child Protection Agency had to be involved. T.G.S. agreed in general with a visiting programme in favour of the first applicant, but contested the schedule he proposed. She also reiterated that the child was not used to spending time without his mother and that forcing him to travel to Italy on weekends to see his father was unpractical at his age.
7. On 6 August 2015 the District Court allowed the request and set a visiting schedule in favour of the first applicant. It considered that it was important for the second applicant to build a direct relationship with his paternal family; it therefore set a detailed visiting schedule, but denied the request to establish daily Skype and telephone contacts between the first and second applicants on the ground that the child was too small to use the telephone and the internet and that imposing such an obligation on the mother would encroach disproportionately on her right to use or refrain from using technology.
8. The parties appealed and on 19 February 2016 the Bucharest Court of Appeal allowed a request made by T.G.S. and stayed the execution of the decision of 6 August 2015 until the end of the appeal proceedings.
9. On 27 June 2016 the Bucharest County Court dismissed the appeal lodged by the first applicant, allowed partially the appeal lodged by T.G.S. and set a new visiting schedule for the first applicant. Notably, the latter could see his son on the following dates: every other weekend, two weeks in August, one week during the winter holidays, the Catholic Easter weekend and one day for the second applicant’s birthday. In view of the second applicant’s age, all these meetings were to take place in Romania where the first applicant was residing.
B. Attempts at enforcing the visiting rights
10. The attempts made by the first applicant and his family to see the second applicant were unfruitful despite the intervention of the Child Protection Agency.
11. In particular, according to the first applicant, in July 2015 he spent all his weekends in Romania, but T.G.S. refused to allow him to see his child. In August 2015 the second applicant underwent a surgical intervention and the applicant was only allowed to visit him after making an express request with the hospital administration and only in the presence of a hospital security team and of the mother.
12. On 19 December 2015 while the second applicant was in his father’s flat in Bucharest, two police officers showed up with T.G.S. in order to check on the child. No court order was produced to justify that visit.
13. On 29 December 2015 as well as on 15 January and 5 February 2016 T.G.S. refused to allow the first applicant to see his son. From 5 February to 27 June 2016 his visits were restricted to two hours per week. On 15 and 17 August and on 2 September 2016 the first applicant did not find anyone at T.G.S.’s home at the allotted visiting times.
14. The authorities remained passive despite the first applicant’s repeated complaints about the situation.
15. In 2015 the first applicant lodged a criminal complaint against T.G.S. On 19 May 2016 the Bucharest District Court of the Sixth Precinct quashed a prosecutor’s office order of 14 December 2015 (upheld by the prosecutor in chief on 26 February 2016) whereby it was decided not to prosecute T.G.S. for alleged non-compliance with a judicial decision. The court invited the prosecutor’s office to continue the investigations. The proceedings are currently pending.
16. On 16 August 2016 the first applicant made a request for interim measures pursuant to Rule 39 of the Rules of Court. He notably asked the Court to assist him in enforcing the judgment of 27 June 2016 (see paragraph 9 above). On the same day the Court refused to indicate the interim measures requested by the applicant.
C. Request for physical custody of the child
17. On 13 October 2013 the first applicant requested that the second applicant be placed with him on a permanent basis. It appears that the proceedings are still pending with the domestic courts.
COMPLAINTS
18. The applicants complain under Article 8 of the Convention that they cannot see each other despite the fact that a court set a visiting schedule in their favour. They consider that the Romanian authorities had neglected their obligation to assist them in the enforcement of the court orders setting their rights to visit each other.
19. They also complain about the fact that the telephone contacts were not allowed and that the second applicant was not permitted to travel to Italy with/to his father. Because of this prohibition the third applicant, who is 80 years old and blind, would never be able to establish a relationship with her grandson.
20. Relying on Article 8 of the Convention, the applicants further complain about the length of the various proceedings engaged with the Romanian authorities in order to allow them to maintain contact.
21. The first applicant further complains that the difficulties in seeing his child and the lack of help from the authorities caused him stress and depression amounting to an additional infringement of his Article 8 rights.
22. Lastly, the first applicant complains, under Article 14 of the Convention read in conjunction with Article 8, that the Romanian authorities adopted a discriminative attitude towards him because he is not Romanian and thus gave T.G.S. preferential treatment.
QUESTIONS TO THE PARTIES
1. Has the third applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention? In particular,
- has the respondent State complied with its positive obligations to assist the applicants in maintaining and cultivating their family ties, both in terms of the manner in which the visiting rights have been assessed and in terms of manner in which the enforcement of the final decisions establishing a visiting schedule has been ensured?
- have the proceedings for establishing visiting rights and those for granting the first applicant physical custody of the second applicant been conducted in an effective and timely manner, thus efficiently protecting the applicants’ right to respect for their family life?
The Government are invited to submit all relevant information concerning the proceedings initiated by the first applicant in order to obtain physical custody of his child.
3. Has the first applicant suffered discrimination in the enjoyment of his family life on the ground of his nationality, contrary to Article 14 of the Convention read in conjunction with Article 8?
In particular, in deciding custody rights, has the first applicant been subjected to a difference in treatment on the ground of his nationality
vis-à-vis his child’s mother?
If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
Appendix
(anonymity has been granted)
1) D.D.F. was born in 1973 and lives in Naples
2) C.D.D.F. was born in 2013 and lives in Bucharest
3) M.R.M. was born in 1936 and lives in Naples
Full & Egal Universal Law Academy