Information Note on the Court’s case-law 182
February 2015
Penchevi v. Bulgaria - 77818/12
Judgment 10.2.2015 [Section IV]
Article 8
Article 8-1
Respect for family life
Refusal to allow child to travel abroad to join his mother without the consent of the father: violation
Facts – The first applicant was the mother of the second applicant, a minor child. In 2010, following the breakdown of the first applicant’s marriage to the child’s father, the applicants left the matrimonial home in Bulgaria. The first applicant subsequently requested the father’s consent to allow their son to travel from Bulgaria to Germany where the first applicant was completing a postgraduate course, but he refused. She sought a court order, but the proceedings, which lasted almost two years and two months for three levels of jurisdiction, ended with the refusal of the Supreme Court of Cassation to allow the child to travel outside Bulgaria with only his mother. The applicants brought further proceedings in July 2012 which ended in a decision of December 2012 allowing the child to travel with his mother.
Law – Article 8: For the applicants, who were mother and child, the possibility of continuing to live together was a fundamental consideration which clearly fell within the scope of their family life within the meaning of Article 8 of the Convention. The Supreme Court of Cassation’s refusal, and the time it took the courts to decide the case, had prevented the applicants from being together while the first applicant pursued her studies in Germany. There had thus been an interference with both applicants’ right to protection of their family life. The interference was “in accordance with the law” as the consent of both parents was required for all questions related to the exercise of parental rights, including the child’s travel abroad, and it pursued the legitimate aim of protecting the rights of the child’s father.
The requirement for both parents’ consent for any type and duration of travel abroad by their child did not appear to impose either an unreasonable or a disproportionate limitation on the applicants’ right to family life, given that the State is called upon to ensure a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life under Article 8 even when the relationship between the parents has broken down.
In the present case the two lower instance courts had allowed the child’s travel abroad in the absence of the father’s agreement after carrying out a detailed analysis of the family situation and establishing that travel would be in the child’s interest. Their decisions were, however, overruled by the Supreme Court of Cassation on the basis of its well established case-law according to which permission for a child’s unlimited travel abroad with one parent only could not be granted. The Supreme Court did not, however, take into account the circumstances of the case such as the father’s and mother’s ability to take care of the child, the elements of a psychological, emotional, material or medical nature or whether there was any real and specific risk for the child if he travelled with his mother abroad. In addition, it based its refusal on a technical error made by the mother when submitting her application and, more specifically, her failure to specify in writing Germany as the country of destination. Finally, despite prompting by the first applicant, it refused to define of its own motion concrete boundaries within which travel could be permitted. These factors, taken together, cast doubts on the adequacy of the Supreme Court’s assessment of the child’s best interests. In these circumstances, its analysis was not sufficiently thorough and its approach was overly formalistic.
In addition, the domestic proceedings had lasted more than two years and eight months. Throughout that period the child was unable to travel to join his mother. Given that the proceedings were decisive for both applicants’ right to family life under Article 8 and in particular for their ability to continue to live together and enjoy each other’s company, they should have been conducted with particular diligence. In view of the second applicant’s very young age and close attachment to the first applicant, some urgency had been required in the national authorities’ handling of the request for travel.
In sum, the decision-making process at domestic level had been flawed in that the Supreme Court had dismissed the travel request on what appeared to be formalistic grounds without any real analysis of the child’s best interests and the proceedings had lasted too long.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 jointly in respect of non-pecuniary damage; EUR 1,101 jointly in respect of pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy