Information Note on the Court’s case-law No. 124
November 2009
R.R. v. Romania - 1188/05
Judgment 10.11.2009 [Section III]
Article 8
Positive obligations
Article 8-1
Respect for family life
Exercise of father’s right of access in context of lengthy repeated absences abroad of mother and child: no violation
Facts – Following the applicant’s divorce in 2000, custody of his daughter, then aged four, was awarded to the mother. Several sets of judicial proceedings ensued, concerning in particular the father’s right of access in respect of his daughter, which were fixed finally in November 2005 at three weeks per year during the summer holidays. This right was to be exercised in a context where his former wife often took their daughter to stay for long periods in the United States, where she had remarried. The applicant made numerous requests to the Romanian administrative and judicial authorities to obtain an acknowledgment of the wrongful nature of his daughter’s repeated removal and to secure her return to Romania. He relied in particular on the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980. Apart from two initial decisions by the Romanian courts, the constant position of the Romanian administrative and judicial authorities in response to the father’s requests was that, since he did not have custody of the child, he was not justified in seeking her return. He was, however, entitled to seek the protection of his right of access, and he did so, obtaining the Romanian authorities’ assistance where necessary, in particular when, in the summer of 2008, mother and daughter did not spontaneously return to Romania to allow him to exercise this right.
Law – Article 8: Construed in the light of the Hague Convention, Article 8 did not impose on domestic authorities any positive obligation to ensure the return of a child where the complaining parent only had the right of access. In the circumstances of the case, the Court took the view that after the judgment of November 2005 Article 8, construed in the light of the Hague Convention, obliged the Romanian authorities to adopt measures mainly to secure the child’s return for the three weeks during which the father was to exercise his annual right of access. This was in fact what had happened when the father sought protection of his right of access in the summer of 2008, under the Hague Convention. The response of the Romanian Central Authority had been prompt. The Romanian authorities responsible for the application of the Hague Convention, namely the Ministry of Justice and the courts, had made reasonably appropriate and sufficient efforts to protect the exercise of the parental rights that had been granted to the father and they had not therefore, in the particular circumstances of the case, impaired his right to respect for his family life. Moreover, no act or omission of the other national authorities mentioned by the applicant, namely the border police, national social services, school authorities or penal authorities, could be regarded as having impaired his right to respect for his family life. It was also noteworthy that the relevant decisions had been taken after adversarial proceedings during which the applicant, represented by his lawyer, had been able to submit the observations and evidence he deemed necessary, with arguments in support of his case.
Conclusion: no violation (unanimously).
(See also D.J. and A.-K.R. v. Romania, no. 34175/05, 20 October 2009, Information Note no. 123)
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This summary by the Registry does not bind the Court.
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