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THIRD
SECTION
CASE OF SBÂRNEA v. ROMANIA
(Application
no. 2040/06)
JUDGMENT
STRASBOURG
21 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sbârnea v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2040/06) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Gheorghe Sbârnea
(“the applicant”), on 25 October 2005.
- The
applicant was represented by Ms T. Koletsis and Mr N. Crăciun,
lawyers practising in Bucharest. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that the public authorities had
taken no effective action to enforce a judicial decision defining his
rights of contact with his minor daughter.
- On
30 November 2007, the President of the Third Section decided to
communicate the complaint of non-enforcement of contact arrangements
to the Government. It was also decided to examine the merits of the
part of the application that was communicated at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Bucharest.
A. Background to the case
- The
applicant married M.S. on 19 August 1993. On 9 March 1994 their
daughter E. was born.
- At
the petition of the applicant the marriage was dissolved by a final
decision of 27 January 1998 and M.S. was awarded resident parent
status. The said judgment did not include contact arrangements for
the applicant, as no such request was made.
- According
to the applicant and to the information available in the case file,
in the period following the divorce and until the end of 2002 or the
beginning of 2003, he was able to see E. without any restrictions.
Their relationship was close and affectionate.
- During
the Christmas holiday of 2002 the applicant announced to E. that he
was remarrying and that he and his new wife were expecting a new baby
girl.
- From
that point onward, E. started refusing to meet him on her own,
expressing the wish that her mother also be present during these
meetings. The applicant’s explanation was that M.S. was trying
to punish him by preventing him from having contact with his
daughter, after she realised that he was starting a new life and that
the separation from her was therefore final.
B. Proceedings initiated by the applicant for contact
rights
- On
4 February 2003, the applicant brought an action for the
establishment of his rights of contact with the child. He stated that
M.S. was not respecting his right to spend time alone with their
daughter.
- During
the proceedings, M.S. indicated that, although the divorce decision
did not set out any contact schedule, she had always encouraged E. to
spend time with her father. Nevertheless, lately she had noticed that
the child had a reserved attitude towards meeting her father alone,
and the girl had asked her also to be present during those meetings.
- A
report on the social investigation conducted by social services after
carrying out on 10 April 2003 a home visit to M.S. and discussions
with both the child and the mother indicated that the mother had not
prevented the applicant from visiting the child, but on the contrary
she tried to encourage their relationship, given the fact that the
girl suffered considerably after her parents’ divorce. The
report also indicated that the applicant continued to see E.
- In
a judgment of 25 April 2003, the Bucharest District Court (“the
district court”) concluded that the applicant had the right to
maintain personal relations with the child in the absence of M.S.,
as, on the basis of the evidence adduced, it could not be concluded
that such a visiting schedule would be contrary to E.’s
interests. The court noted further that with wisdom, tact and
affection the new reality could be explained to the child and she had
to be helped to accept the existing situation.
The
court established that the applicant could spend time with E. at his
home every second Saturday between 10 a.m. and 6 p.m., and every
other alternating Sunday between the same hours, as well as for one
month during the summer holiday, half of the winter and spring
holidays and on alternate Christmas, New Year’s Eve and Easter
celebrations.
The
judgment became final, as no appeal was lodged.
C. Criminal complaint against M.S.
- On
10 July 2003, the applicant lodged a criminal complaint against M.S.,
alleging that she had not complied with the final judgment of
25 April 2003, which defined his contact rights with E.
- During
August 2003, the investigating authorities took statements from the
proposed witnesses and the mother. The child also gave a statement on
24 November 2003, stating that she did not want to see her father and
that her mother allowed her to meet him but she did not want to.
- On
2 December 2003, the prosecutor decided not to pursue M.S.
criminally, considering that the non-compliance with the said
judgment could not be imputed to her, but to the child’s
refusal.
- The
applicant lodged a judicial complaint against the prosecutor’s
decision. By a first-instance judgment of 4 March 2004 the Bucharest
District Court referred the case back to the prosecutor for the
investigation to be continued. The court considered that, given her
age, the girl did not have a full understanding of her refusal to
meet her father and under these circumstances, it was expected that
it was M.S.’s duty to inculcate in her a positive attitude
towards the father and that the prosecutor had ignored statements by
M.S. in which she admitted that she had agreed to allow the father to
visit the girl only in her presence. The court also considered that
it was necessary to prepare a psychological expert report (“expertiză
psihologică”) in order to identify the real cause of
the girl’s refusal to meet her father.
- The
file was sent back to the prosecutor. M.S. and one witness indicated
by the applicant were heard again. The mother declared again that she
was not preventing the child from having contact with the father, but
the child was afraid of him and did not want to meet him. The witness
said that on one occasion she had met the three of them and E. had
refused to join her father, pleading with M.S. not to go away.
- E.
gave further statements, on 23 November 2004 and 19 January 2005,
stating that she refused to have contact with the applicant because
he had threatened on several occasions that he would hurt her mother
if she refused to do so.
- The
investigating authorities asked for a psychological assessment
(“evaluare psihologică”) to be prepared. The
assessment, carried out by social services on 12 May 2005, indicated
that the child was suffering from anxiety and sleep problems and that
she needed to be in a harmonious environment, avoiding situations
that could stress her.
No
psychological expert report could be prepared, as several
institutions summoned to carry out such a report declared that it was
not within their responsibilities.
- In
a decision of 13 July 2005, the prosecutor decided not to pursue
criminal proceedings against M.S. because she did not intend to
prevent the applicant from having a personal relationship with the
child. It further held that it was not necessary to conduct a
psychological expert report, taking into account that such a report
could not establish with certainty whether M.S. was in bad faith on
this matter.
- The
applicant was notified of the decision only at a later date during
2006, and he lodged a judicial complaint against it.
- In
a first-instance judgment of 20 June 2006 the Bucharest District
Court dismissed the complaint. The court noted that the prosecutor
heard the witnesses indicated by the parties again and that a
psychological expert report would not have been conclusive for the
outcome of the case. The child had many times expressly stated in
front of the investigating authorities and social workers that she
did not want to see her father. The same state of affairs had been
confirmed by her teacher and by the neighbour taking care of her.
None of the evidence indicated that the child wanted to see her
father and M.S. was preventing her.
The
court further held that the father’s expectation that the child
should understand that state authority prevails over parental
authority was exaggerated; the child only understood his intention to
harm her mother, hence her reaction; M.S.’s failure to attend
some of the meetings with the social workers needed to be assessed in
a general context, and taking into account that this attitude had
been shown only after a number of meetings with social workers,
conducted at their home.
The
court concluded that the decision not to pursue M.S. criminally did
not amount to an incentive not to comply with the final judgment
defining the applicant’s contact rights with the child; this
decision was the result of the conclusion that the conditions
required to attract criminal liability had not been met. The
applicant could pursue the forced enforcement of the said judgment,
according to the procedure regulated by the Code of Civil Procedure;
but regard must be had to the fact that only a responsible attitude
on the part of the parents and of the experts to whom the parents
have turned could lead to a normalisation of the father-child
relations.
- The
Bucharest County Court, in a final decision of 4 August 2006, allowed
an appeal by the applicant against this judgment, holding that the
prosecutors should have listened to other witnesses and should have
conducted a psychological expert report.
- The
case was again referred back to the investigating authorities.
- The
child was assessed psychologically by the psychologists of the
Directorate for Social Assistance and Child Protection during March
2008. The conclusions of the report are presented in paragraph 63
below.
- The
applicant, M.S. and E. made statements before the prosecutor on
different dates in August 2008.
- The
main elements of the girl’s statement were the following:
a) for a while, until 2003, she had a good relationship
with her father. Then he started visiting her at school and sending
letters asking her not to tell M.S. about it; she felt uncomfortable
as she did not have any secrets from her mother;
b) because of the letters she started fearing that he had
something to hide, and this was why she wanted her mother to be
present too; she spoke daily with him on the phone, she did not
understand why he had to send her letters;
c) her father used to call her on the phone to tell her
that he would hurt M.S. badly; he kept her for hours on the phone to
tell her this; she started having nightmares and dreaming about her
mother’s grave;
d) at the beginning of August 2008, he took her by force
and pushed her into his car. She was very upset. He did not even call
to announce that he was coming. Her opinion did not matter to him;
e) maybe in his own way he loved her; but she did not like
it that he had something against M.S.; he acted as if he
intentionally wanted to harm her. If he loved her, he would not do
so. This was her reproach to him. She told him this several times and
he told her that he could not do anything about it, but he had to
lodge judicial actions. She did not understand it;
f) since the previous winter she had not wanted to see him
at all. He did not call her for several weeks, after which he
appeared at their door with the bailiff and several policemen. She
started shaking when she saw so many policemen;
g) she would like her father to stop all his complaints
against her mother;
h) she still cared for her father, but only a little now.
There were things that disturbed her about him. She did not have the
feeling that he tried to make any effort to make things better;
i) she went several times to the child protection
authorities. The people there were nice, but she did not like going
there. Her classmates who had divorced parents did not have to go
there; it was difficult for her to tell them why she was upset,
because they were like foreigners to her.
- By
a decision of 25 August 2008, the prosecutor terminated the criminal
proceedings against M.S., concluding that she was not obstructing the
enforcement of the judgment defining the applicant’s visiting
rights.
- In
respect of the indications given by the Bucharest County Court in its
decision of 4 August 2006, the prosecutor noted that the applicant
had been asked to suggest other witnesses who would support his
allegations. However, he did not produce such witnesses, stating that
“[he] had lost [his] trust in this prosecution unit and
therefore, [he] refused to produce these witnesses. [He] reserved the
right to indicate their name when [he] considered the moment to be
opportune.”
- As
regards the indication to conduct a psychological expert report, the
prosecutor noted that the National Forensic Institute had
responsibility to conduct only psychiatric expert reports, which was
not the type of report needed in the instant case. The prosecutor
nevertheless relied on the conclusions of the psychological
assessment carried out by social services.
- The
prosecutor further took note of the applicant’s statements
according to which “it was the mother’s duty to comply
with the visiting programme. If she had not been able to influence
the child in the direction set by the court (...), she had to pay for
it”. The prosecutor indicated that the crime punished by
Article 307 of the Criminal Code implied an action from the side of
the accused; or the factors for which the applicant held M.S.
responsible were actually a lack of action, namely that she failed to
inspire in the girl positive feelings towards him.
- In
other statements taken into account by the prosecutor in his
decision, the applicant declared that he did not see any harm in the
fact that a child needed to be aware that state authority was above
parents’ authority and that even if a harsh law might frighten
a child, that law should be obeyed. The applicant considered that it
was not in the best interest of the child to take her moods into
account. A child needed to learn that he or she had responsibilities
too. The fact of taking a child away with him, even by force, did not
mean that he was torturing the child.
- As
regards M.S.’s refusal to attend some of the psychological
counselling sessions, the prosecutor underlined that this obligation
had not been set by the final judgment defining the applicant’s
contact rights. The prosecutor then analysed whether this absence
showed M.S. to be in bad faith. The prosecutor relied on the child’s
statements according to which she did not like to go to the social
assistance office. He considered that one could not expect a parent
to remain indifferent to a child’s attitude towards these
meetings, and that this was the reason why M.S. had refused to attend
some of the meetings with social workers.
- The
applicant’s complaint against the prosecutor’s decision
was dismissed by a first-instance judgment of 17 June 2009. This
judgment was upheld by the Bucharest County Court, in a final
decision of 1 October 2009. The county court explained that the crime
under Article 307 § 2 of the Criminal Code implied acts by a
person who had resident status with a child aimed at preventing the
other parent from maintaining a personal relationship with the child.
But in the instant case M.S. had not taken such actions; she had only
expressed her disagreement with forcing the child to do something she
did not want to do. No elements indicated that M.S. was the one who
had induced the negative feelings in the child. It was also concluded
that no other psychological report was needed, in the light of the
reports already conducted and relied upon by the prosecutor and the
first-instance court.
D. Involvement of social services
1. Activities during 2004
- During
2004 the applicant lodged several requests for assistance from social
services, indicating that he still had problems in communicating with
his daughter, who was refusing to meet him. He held that this was due
to the pressure exerted on the child by M.S.
- A
social worker visited the mother and the child at their home on
19 May and 17 June 2004. On both occasions, they noted that the
two had a strong and affectionate relationship. The child declared
she did not love her father and she was afraid of him; the mother
undertook to enrol E. on a counselling programme. Further interviews
were conducted by social services with the neighbour who sometimes
took care of E. after school hours until M.S. returned from work, and
with her school teacher. Both indicated that E. had previously had a
good relationship with her father, but that recently she had refused
to see him any more. According to these statements, E. refused to
meet or talk to her father even when she was alone, without her
mother around. The school teacher indicated that the father had
visited E. several times at the school.
- On
14 July 2004, a written notification was sent to M.S. recommending
her to enrol E. on a counselling programme.
- From
the information available in the case file, it appears that the girl
was enrolled on a counselling programme with a psychologist from an
unspecified date during the summer of 2004.
- Following
a new request from the applicant, by a letter of 27 October 2004
social services informed him of the steps taken and confirming that
they would continue to monitor the situation of the child in the
following months.
2. Activities during 2005
- The
applicant made renewed requests for assistance, indicating that he
was willing to do anything possible to help restore the psychological
balance of the child.
- M.S
and E. were invited for a meeting with social services on 14 March
2005. The report drawn up on that occasion indicated again that E.
did not want to meet her father, that she did not trust him any more
and that she feared that he had tried to hurt her mother. The social
worker proposed a trilateral meeting, but M.S. refused this proposal,
after seeing that E. did not agree with it.
M.S.
informed the social worker that E. visited a psychologist weekly.
- On
17 March 2005, M.S. gave a new statement to social services,
reiterating the same elements. She also mentioned that she had
insisted that E. go to the birthday party of her paternal
grandfather, who was ill. Since then, the girl had seen her father
once, when he came to bring her a birthday gift, but she had refused
to leave with him.
The
mother indicated that all these events in the life of her daughter
had created in her a feeling of fear, and that she had therefore
enrolled the girl in a counselling programme, which she attended
weekly.
- A
new social investigation report was prepared on 31 March 2005,
following a home visit and discussions between the social worker and
E. and the mother. The report concluded that E. was still refusing to
meet her father and she was not prepared to meet him. The child
believed that her relationship with the applicant would have been
better if he had not tried to hurt her mother by making all “his
complaints to the courts, the police and threats”; the mother
reiterated that she was not preventing her daughter from having a
personal relationship with her father, but that she did not want to
force her to meet him against her will.
- During
a visit to the child’s home on 31 March 2005, the social worker
obtained the mother’s approval for more frequent meetings at
their home. The mother refused to have meetings at their
headquarters.
- The
social worker made a new home visit on 11 April 2005. She talked with
the child about the relation between the child and the father, E.
repeating that she did not wish to see him and that she would like to
be left alone.
- On
20 April 2005, M.S. and E. went to social services and they discussed
the counselling programme in which E. was enrolled within the
Institute for the Protection of Mother and Child; the girl refused
the proposal to meet the applicant at their offices.
- On
12 May 2005, the psychologist in charge of E’s case prepared a
psychological assessment (“evaluare psihologică”).
The test concluded that the girl presented certain disorders of a
neurotic character (reactive to stress). It recommended psychotherapy
and a harmonious emotional climate, by avoiding stress and situations
that may cause psychological trauma.
- By
a letter of 8 June 2005 the applicant was informed that the social
worker had come to the conclusion that it was the child’s own
decision not to meet him and that their attempts to set up a meeting
at their office between him and the child had failed because of a
very vehement refusal from E.’s side.
- The
applicant lodged several complaints with the social services office
and with the superiors of the social worker in charge of the case,
expressing the concern that the case had not been handled properly.
- Following
the applicant’s renewed complaints, social services proceeded
to request M.S. to present herself at their office for further
discussions. M.S. did not attend the proposed meetings.
3. Activities since 2006
- During
2006, M.S. was invited several times to attend meetings with the
social worker in charge of the case. She did not attend these
meetings.
- On
23 June 2006, the Bucharest District Court invited the General
Directorate of Social Services and Child Protection (formerly the
Public Service for the Protection of Children in Difficulty or
Handicapped, hereinafter “GDSACP”), to submit a copy of
their file on the case, as well as to state whether they had experts
who could conduct psychological expert reports (“expertiză
psihologică”) on minors.
- By
a letter of 25 May 2006, GDSACP informed the district court of their
activities in respect of E. and that they had employees who were
psychologists whose responsibilities included the psychological
assessment and counselling of children.
- The
county court then asked GDSAPC to specify whether their experts could
determine with certainty whether the rejection of one parent by a
child is due to influence exerted by the parent who is resident with
the child. GDSAPC informed the county court that their experts were
of the opinion that it was not possible to determine with certainty
the influence exerted by the parent with residence in respect of a
child’s attitude towards the other parent.
- On
25 September 2006, the social worker in charge of the case file
closed it, noting that the mother held that she did not oppose the
child having a relationship with her father, but that the child was
continuing to refuse to meet him and that after several complaints
addressed to different public authorities the father had stopped
contacting social services.
- On
12 October 2006 the applicant again contacted social services,
complaining that the situation had worsened. He asked them to reopen
the case. Letters were sent to M.S. on several occasions inviting her
to meetings to discuss the situation of the child. M.S. did not reply
to the invitations, although a few times she telephoned them to
notify them that she would not be able to attend the meetings, either
due to her work schedule or to illness.
- On
24 May 2007 the social worker talked to the maternal grandfather, who
declared that the applicant saw E. often and they went out together
for walks. On 21 August 2007 the social worker had a telephone
conversation with M.S., who informed her that E. had spent the first
part of her summer holidays with her father.
- On
19 December 2007 M.S. and E. visited the office of GDSACP. On that
occasion, E. gave another written statement in front of two social
assistants, declaring that she did not want to meet her father, that
she did not like the way he had behaved towards her during the summer
holidays, when she had had to spend two weeks with him and he had
threatened to harm her mother if she did not agree to go with him.
- On
19 February 2008, at the request of the prosecutor investigating the
case against M.S., GDSACP issued a report on the case. The report
showed that the applicant had lodged a criminal complaint against
M.S., which strengthened the feelings of rejection shown by his
daughter. In respect of M.S. the report concluded that at the
beginning she had cooperated well with them, but that lately her
attitude had changed and she was not responding to their requests for
meetings.
- From
the information submitted by the applicant it appears that during
2008 E. was subjected again to a psychological evaluation by experts
from social services. The assessment report was prepared on
20 March 2008, after three meetings with the child.
- The
report noted that the child was tense during these meetings. In
respect of her relationship with her parents, the report concluded
that her relationship with her mother had an emotional basis, E.
perceiving her mother as a supporting element, while she was
ambivalent in her relationship with the applicant. The girl showed a
strongly negative attitude towards paternity, the report concluding
that the basis of the child-father relationship was insufficiently
structured and consolidated. The current situation had triggered the
development of a latent aggressiveness, the child being “overloaded”
with problems specific to her parents.
The
conclusions of the report were as follows: there was a need to ensure
an emotional basis which would support the development of the child’s
personality. It was necessary for the parents (especially the father)
to respect the child’s rhythm and adapt to its specific
characteristics so that the child could internalise according to her
own feelings both her relationship with her parents and the situation
she was facing. This could allow an adequate and balanced integration
of the maternal and paternal sides of the girl’s life. The
report further recommended psychological counselling for the child,
as well as for the parents, in order for the latter to understand and
assume their roles as parents. It was recommended that a stable
environment be ensured for her, in order to avoid exposing the girl
to situations that could generate inner conflicts and have a negative
impact on her psychological state.
- The
mother, informed of the conclusions of the report, indicated that she
would enrol E. again in a counselling programme, with a psychologist
the girl knew from before and was comfortable with.
- A
note prepared by social services on 21 October 2008 showed that the
relations between E. and the father remained tense, the father having
lodged a new judicial action to obtain residence rights in respect of
the child, despite the fact that she wanted to stay with her mother.
- During
November 2008, M.S. and the child were again invited to social
services to discuss their case further. E. declared that she was
aware that her father had the right to see her, but she did not want
to see him, because she did not feel good in his presence. She said
that when they met he brought along various people to act as
witnesses. One day, in front of her mother and a friend of his
father, the applicant took her by force and put her in his car. Her
father called her almost daily and they could not have a normal
conversation because he did not listen to her and told her she was
not right.
E. Attempts to enforce the final judgment of 25 April
2003
- On
7 December 2007 the applicant made a request to the bailiff for the
enforcement of the judgment setting out his contact rights. He asked
for the necessary actions to be taken so that he could spend the
first two weeks of the winter holidays with E., starting from on 21
December.
- On
12 December 2007 the Bucharest District Court authorised the request
to proceed with the enforcement on a non-working day, a Saturday,
with a view to taking the child away for the first two weeks of the
winter holidays.
- On
22 December 2007 the bailiff, in the presence of M.S., the applicant
and the child, drew up a report noting that she could not proceed
with the enforcement, as E. refused to join her father.
- On
14 January 2008 the applicant made a new request for the bailiff to
continue with the enforcement. The bailiff refused to take further
action, noting that the first request concerned the winter holidays,
which were already over. The bailiff also considered that the
applicant had actually disputed the note prepared on 22 December 2007
because he judged that E.’s refusal to join him did not
constitute an obstacle to the enforcement and that if she tried to
resist “she could be forced, obviously not by slapping or
ill-treatment, but by being firmly taken by the hand by the bailiff
or by the policemen and then passed over to the father”; “[the
father] in principle could be waiting at home and the child be
brought to [him]”.
- The
applicant lodged a judicial complaint against the bailiff, asking
that the note of 14 January 2008 be declared void. The complaint was
dismissed by a final decision of the Bucharest District Court on 7
January 2009, with the reasoning that in his initial request of 7
December 2007 the applicant had limited his enforcement request to
the winter holidays and that that request had been dealt with by the
document of 22 December 2007.
- The
applicant lodged a new request for enforcement with the bailiff in
respect of the summer holidays of 2009. The bailiff lodged a request
with the court for the enforcement to be authorised. A summons was
sent to M.S. on 1 September 2009. The latter replied on 11
September 2009, indicating that E. would be starting school on 14
September 2009 and the holidays were already over. Moreover, she
indicated that E., 15 years old at the time and with the ability to
make her own decisions, was still refusing to meet him.
- On
16 September 2009, M.S. and E. visited the bailiff’s office. E.
declared that she wanted her father to stop spoiling her peace of
mind with his complaints and legal actions. She wanted to clarify all
misunderstandings, as well as to define their future relations. In
this respect she wanted to have these discussions with him at the
bailiff’s office, in the presence of the bailiff, a lawyer and
her mother. It was agreed that E. would propose a date for this
discussion, to be communicated well in advance to the applicant too.
- By
a letter of 18 September 2009 the bailiff informed the applicant that
E. was proposing a meeting on 2 October 2009.
- On
29 September 2009, the applicant emailed the bailiff, indicating that
he could not accept the proposed meeting, because accepting E.’s
invitation would mean teaching her that her moods were superior to
her legal obligations, especially in a vital issue such as relations
with a parent.
- According
to the report drawn up by the bailiff on 2 October 2009, E. declared
that she was disappointed that her father had not come and that he
considered her request to meet him a sign of disrespect. She further
stated that she did not understand why her father had lodged numerous
complaints with the police, the bailiff, the prosecutor and social
services, when no one had ever been opposed to her having a personal
relationship with him, especially given the fact that they
communicated very often by telephone. She declared that she was aware
that her father had the legal right to visit her, but at the same
time she also had the same right to visit him when she wanted to,
without being forced against her will to exert this right. She
further stated that the applicant had said to her that she did not
have the right to choose whether she wanted to be with him or not,
because he was the one who had to decide and she had to listen to
him.
F. Civil action lodged by M.S. for redefinition of
contact rights
- On
28 December 2007, M.S. lodged a civil action on behalf of E. to have
the applicant’s contact rights redefined in the sense that E.
would have the freedom to choose the dates and means of maintaining
the personal links with her father. M.S. indicated that the girl
started to fear that she would be taken by force against her will and
had asked her to do everything possible to avoid such disturbing
events and make sure that her right to meet her father when she
wanted and when she needed it was officially recognised. Hence the
civil action lodged by M.S.
- A
report on the psychological assessment of the child indicated that E.
was suffering from slight emotional immaturity, shyness and social
introversion, and was afraid of being separated from her mother. She
presented feelings of fear in respect of the father, hostility and
aggressiveness. The cause of these feelings proved to be her
emotional identification with the mother but also the methods chosen
by her father to enforce his contact rights with her.
- In
a decision of 10 March 2010, the county court considered that it was
its duty to establish a balance between the necessity to pursue the
best interest of the child against the right of the divorced parent
who did not have residence rights to maintain personal relations with
the child. It then considered that the girl’s wishes could not
represent the only criteria to be taken into account when deciding on
the specific way of maintaining personal links between the parent and
the child. Therefore it concluded that there was no need to modify
the contact schedule.
- No
information is available in the case file as to whether this decision
was appealed against.
G. Civil action lodged by M.S. for increase of child
support
- The
initial quantum of the child support to be paid by the applicant to
the child was set out in the divorce decision of 1998. Since then
M.S. asked twice for an increase in the amount, in proportion to the
increase in the applicant’s income. Her first request was
allowed by a final decision of the Bucharest County Court of 28
February 2008.
- The
second action was allowed in a first-instance judgment of 25 November
2008. The Bucharest District Court increased child support from 1,073
Romanian lei (RON), approximately 284 euro (EUR), to RON 1,136
(approximately EUR 300).
- The
applicant lodged an appeal on points of law, arguing that a child
could not have higher needs than the equivalent of the minimum salary
per economy (RON 350, approximately EUR 90) and it had not been
proven what needs were meant to be covered by this increase. He held
that the fact that the mother had interfered with the child’s
compliance with his right of contact meant that he had no guarantees
that the child support would be spent in the best interest of the
child. There were no guarantees that the mother, in order to satisfy
the momentary wishes of the child and to keep the child on her side,
would not use the money to buy heroin to the girl.
- By
a final decision of 19 March 2009, the Bucharest County Court
dismissed the appeal, by showing that the Family Code provided that
the level of child support was determined according to the financial
means of the debtor and that the obligation to pay child support and
the obligation of the mother to comply with his contact rights were
independent of each other.
H. Other judicial actions
- From
the information submitted by the applicant, it appears that he lodged
a separate civil action in order to obtain residence rights in
respect of E. No information is available as to the final outcome of
these proceedings.
- The
applicant also lodged various civil and criminal complaints against
the prosecutors investigating his complaint against M.S. and against
the lawyer representing her in the different proceedings, accusing
counsel of inciting M.S. to show disrespect to the final judgment of
25 April 2003.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Family and of the Code of Civil
Proceedings are stated in the Court’s judgment in the case of
Lafargue v. Romania, (no. 37284/02, §§ 65 and 68-70,
13 July 2006). The role and responsibilities of the local public
authorities for social assistance and child protection as well as the
relevant provisions of Law no 272/2004 on child protection are
described in the judgment Amanalachioai v. Romania,
(no. 4023/04, § 56 and 59, 26 May
2009).
- Article
307 of the Criminal Code provides:
“It shall be an offence punishable by one to three
months’ imprisonment or a fine for one of the parents of an
under-age child to detain it without the permission of the other
parent ... who lawfully has responsibility for the child.
The same penalty shall be incurred by a person to whom
parental responsibility has been given by a judicial decision who
repeatedly prevents one of the parents from having personal relations
with an under-age child on the terms agreed by the parties or laid
down by the appropriate body.
Criminal proceedings may only be instituted if a
criminal complaint has first been lodged by the victim.
No criminal liability shall be incurred where there has
been reconciliation between the parties.”
- Article
24 § 1 of the Law no. 272/2004 provides that a child who has
attained a degree of maturity has the right to express his/her
opinion freely on any matter concerning him/her. Paragraph 2 of the
same article provides that a child who has attained the age of ten
must be listened to in any judicial or administrative procedure
concerning him or her. Paragraph 4 provides that the child’s
opinions shall be taken into account and relied upon to the necessary
extent, depending also on the age and maturity of the child.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION
- Relying
on Articles 6 § 1 and 8 of the Convention, the applicant
submitted that the public authorities had failed to assist him
effectively to enforce his contact rights in respect of his daughter.
In particular, he complained that the criminal proceedings initiated
by him against his ex-wife had not been properly conducted and had
lasted too long. He submitted that the slow progress of the criminal
proceedings had resulted in the continued non-enforcement of the
civil judgment defining his contact rights with his daughter, and had
thus put him in a position not to be able to exert his parental role.
- The
relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him... everyone is
entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
- Article
8 of the Convention reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Scope of the case
- At
the outset, the Court finds that the alleged failure of the public
authorities to take positive measures to ensure respect for his right
of family in relation to his daughter is at the heart of the
applicant’s complaint. The Court will therefore examine this
part of the application only under Article 8 (see, mutatis
mutandis, Sylvester v. Austria, nos. 36812/97 and
40104/98, § 77, 24 April 2003, and Iosub Caras v.
Romania, no. 7198/04, § 49, 27 July 2006).
B. Admissibility
- The
Court notes that it is common ground that the tie between the
applicant and his child falls within the scope of “family life”
within the meaning of Article 8 of the Convention. It further notes
that this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. As the complaint is not
inadmissible on any other grounds, it follows that it must be
declared admissible.
C. Merits
1. The parties’ submissions
- The
applicant considered that the slow pace of the criminal proceedings
against M.S. had led to a situation where his daughter had begun to
have a disrespectful attitude towards him and their relationship was
constantly deteriorating. He was of the opinion that a criminal
conviction of his ex-wife would have forced her to comply with the
judgment defining his contact rights, by putting more pressure on her
to induce in E. a more positive and respectful attitude towards him,
and would have also been a lesson for the child that one must respect
authority, logic and justice.
- He
considered that state authorities bore the responsibility for the
deterioration of his relations with E., because no effective measures
had been taken to ensure the enforcement of the judgment defining his
contact rights according to the exact schedule set in that judgment.
- The
applicant wanted the Court to recognise his authority as a father.
According to him, the non-enforcement of the contact rights had had
dangerous consequences for the girl, giving her the feeling that she
could do anything she wanted, thus ignoring the father’s
authority and judicial decisions.
- He
noted that the Government, in their observations, had focused on
general principles, without giving details of the specific measures
taken by the authorities. He argued that the Government’ core
submissions were related to the actions taken by social services,
whereas his complaint to the Court concerned mainly the lack of
involvement of the judicial authorities in respect of the criminal
complaint against the mother of the girl.
- As
regards the involvement of social services, the applicant submitted
that the psychological assessment of the child had been done
according to the wishes of the mother and not under the surveillance
of GDSACP. He further underlined the fact, acknowledged by the
Government, that M.S. had failed to attend some of the meetings with
social services. He considered that the girl’s refusal to meet
him could not be used as an excuse, given the fact that she was not
mature enough to understand the implications of this attitude; the
attitude of the child in rejecting him was another proof of the
negative influence of M.S. on the girl.
- The
Government argued that the authorities had acted with diligence and
taken all reasonable measures to assist the applicant in the
enforcement of his contact rights. They referred in this respect to
the actions taken by social services (see paragraphs 37-66 above).
They insisted on the fact that the attempts to organise a joint
meeting between father and child had failed because of the girl’s
refusal. The Government referred also to the different psychological
assessments to which the girl has been subjected. They reiterated the
Court’s case-law, according to which any obligation to apply
coercion in this area must be limited.
- The
Government further indicated that the applicant was at the time
(early 2008) in contact with the girl, E. having spent part of her
previous summer holidays with him and the applicant being freely able
to telephone the girl.
- Finally,
the Government submitted that the applicant himself had failed to
take all measures that were available for the enforcement of the
judgment defining his contact rights, as he had not lodged a civil
action against M.S. for payment of civil penalties for non-compliance
with a final decision.
2. Relevant principles
- The
Court notes that the mutual enjoyment by parent and child of each
other’s company constitutes a fundamental element of “family
life” within the meaning of Article 8 of the Convention (see,
among other authorities, Monory v. Romania and Hungary, no.
71099/01, § 70, 5 April 2005).
- Further,
even though the primary object of Article 8 is to protect the
individual against arbitrary action by public authorities, there are,
in addition, positive obligations inherent in effective “respect”
for family life. In both contexts, regard must be had to the fair
balance to be struck between the competing interests of the
individual and of the community as a whole; in both contexts the
State enjoys a certain margin of appreciation (see Keegan v.
Ireland, 26 May 1994, § 49, Series A no. 290).
- In
relation to the State’s obligation to implement positive
measures, the Court has held that Article 8 includes for parents a
right that steps be taken to reunite them with their children and an
obligation on the national authorities to facilitate such reunions
(see, among other authorities, Ignaccolo-Zenide v. Romania,
cited above, § 94; Nuutinen v. Finland,
no. 32842/96, § 127, ECHR 2000-VIII, and Iglesias
Gil and A.U.I. v. Spain, no. 56673/00, § 49,
ECHR 2003-V). This applies not only to cases dealing with the
compulsory taking of children into public care and the implementation
of care measures (see, inter alia, Olsson v. Sweden (no.
2), 27 November 1992, § 90, Series A no. 250), but also to
cases where contact and residence disputes concerning children arise
between parents and/or other members of the children’s family
(see, for example, Hokkanen v. Finland, 23 September
1994, § 55, Series A no. 299).
- The
obligation of the national authorities to take measures to facilitate
contact by a non-resident parent with children after divorce is
not, however, absolute (see, mutatis mutandis, Hokkanen,
cited above, § 58). The establishment of contact may
not be able to take place immediately and may require
preparatory or phased measures. The cooperation and understanding of
all concerned will always be an important ingredient. While national
authorities must do their utmost to facilitate such cooperation, any
obligation to apply coercion in this area must be limited, since the
interests as well as the rights and freedoms of all concerned must be
taken into account, and more particularly the best interests of the
child and his or her rights under Article 8 of the Convention (see
Hokkanen, cited above, § 58, and Olsson (no. 2), cited
above, § 90).
- What
is decisive is whether the national authorities have taken all
necessary steps to facilitate the execution that can reasonably be
demanded in the specific circumstances of each case (see, mutatis
mutandis, Hokkanen, cited above, § 58;
Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited
above, § 128, and Sylvester, cited above, §
59).
- In
this context, the adequacy of a measure is to be judged by the
swiftness of its implementation, as the passage of time can have
irremediable consequences for relations between the child and the
parent who does not live with the child (see Ignaccolo-Zenide,
cited above, § 102).
- The
Court further reiterates the conclusion it reached in Glaser
v. the United Kingdom, (no. 32346/96, § 70, 19
September 2000) that active parental participation in proceedings
concerning children is required under Article 8 of the Convention in
order to ensure the protection of their interests and that when an
applicant, as in that case, applies for enforcement of a court order,
his conduct, as well as that of the courts, is a relevant factor to
be considered.
3. The Court’s assessment
- In
examining whether the Romanian authorities took all the necessary
steps to facilitate the enforcement of the contact arrangements, the
Court must strike a balance between the various interests involved,
namely the interest’s of the applicant’s daughter and her
mother, those of the applicant himself and the general interest in
ensuring respect for the rule of law (see Kaleta v. Poland,
no. 11375/02, § 53, 16 December 2008).
- In
its analysis of the adequacy of the measures taken by the public
authorities, the Court would take into account three elements which
are specific to the present case.
- Firstly,
it notes that the applicant’s daughter was aged nine when she
started refusing to meet her father on her own. In previous cases
before it, the Court had given a certain importance to the age of the
child involved and to the fact that the child was mature enough to be
able to take his/her own decisions in respect of contacts with the
non-resident parent (see, for example, Kaleta, cited above, §
58).
- Secondly,
the Court is also taking into account the time span of the case as
the various proceedings unfolded and as the girl was growing up and
becoming more mature. Thus, it should be borne in mind that the
applicant’s right of contact was defined in April 2003, within
less than three months of the date he lodged a request in this
respect. The applicant lodged the application with the Court on 25
October 2005, when E. was eleven and a half and their relationship
had deteriorated even more. The first request for enforcement with
the assistance of a bailiff was made in December 2007, when E. was
almost thirteen. The Court underlines in this respect the fact that
according to the Romanian Code of Civil Proceedings, the ordinary
procedure for enforcing civil judgments is through the assistance of
a bailiff, based on a preliminary request from the person holding the
enforceable right.
- Thirdly,
the Court notes that even though the contact rights defined by the
final judgment of 25 April 2003 were not enforced under the exact
terms set by that judgment, the applicant did not at any moment
throughout this period completely lose contact with E. The case file
indicates that they could see each other and they could talk on the
phone and that on different occasions E. did join the applicant at
his home or at various family events.
- In
the light of the applicant’s submissions that his application
to the Court concerns mainly the criminal proceedings against M.S.
(see paragraphs 95 and 98 above), when analysing whether the Romanian
authorities took all the necessary steps to facilitate the
enforcement of the contact arrangements, the Court will examine
firstly the conduct of the authorities in respect of these
proceedings.
- In
that connection, it appears that the applicant considers that the
slow pace of the criminal proceedings against the mother as well as
the lack of a criminal conviction have led to a deterioration of his
relationship with the child and encouraged her to develop a negative
attitude towards him.
- The
Court notes that faced with the girl’s refusal to meet him
alone, the applicant had available different types of judicial
remedies in order to enforce his contact rights. The ordinary civil
remedy is the recourse to the assistance of a bailiff, who may
involve any other public authority in the enforcement procedure,
including the social services. In specific circumstances, when the
resident parent, prevents the other parent from maintaining contact
with the child, recourse could be made either to a criminal complaint
or to a civil claim for payment of civil penalties for non-compliance
with a final civil judgment. In all cases, it is the person who asks
for the enforcement who makes a choice between different types of
remedies.
- In
the instant case, the Court observes that the criminal complaint
against M.S. was lodged four months after the delivery of the
judgment defining the applicant’s contact rights. At the time
the applicant lodged the action, it does not appear that his
relationship with the child was obstructed to the extent that they
had no contact or that the mother has prevented him from seeing or
contacting the girl. Nevertheless, it appears that he gained the firm
belief that M.S. was discrediting him in front of E. and that this
led to the girl’s change of attitude. As he stated, by the
lodging of the criminal complaint he wanted M.S. sanctioned,
considering that this would force her to act in such a way as to
change the girl’s attitude towards him and would also teach the
girl a lesson, that justice must be obeyed.
- The
Court observes that the prosecutors and the domestic courts never
found that the mother had been at fault in connection with the
difficulties in ensuring compliance with the contact rights (see
paragraphs 17, 22, 24, 33, 35 and 35 above). It was never established
that she had taken any steps to thwart the execution of the judgment
defining his contact rights by, for instance, forbidding the
applicant from having contact with the child or by preventing the
child from seeing him.
In
this respect, the Court does not discern any arbitrariness in the
prosecutor’s and domestic courts’ decisions not to pursue
M.S. criminally. Their decisions according to which the fact that the
mother was not able to persuade the girl to join her father according
to the defined contact schedule did not amount to a criminally
punishable act do not appear devoid of merit. The situation might
indeed have been different if there had been evidence in the case
file that M.S. forbade the girl to have contact with her father or
was hiding the girl from him.
- When
the Court had previously held that the use of sanctions should not be
ruled out, it was in the event of unlawful behaviour by the resident
parent (see Ignacollo-Zenide, cited above, § 106).
Nevertheless, this condition does not appear to be met in the instant
case.
- Furthermore,
the Court notes that according to Law no. 272/2004, a child who has
attained a degree of maturity has the right to express his or her
opinion freely in any matter concerning him or her. According to the
same law, once a child has reached the age of ten he or she must be
listened to in all judicial or administrative proceedings concerning
him or her. The lodging of the criminal proceedings against M.S.
therefore opened the way to subjecting the child to numerous
encounters with investigation and judicial authorities, during which
she had to give statements and explain her feelings towards her
father, which cannot have been a comfortable situation for a child of
her age.
- In
the light of the subsequent development or the case and the impact
that these proceedings had, especially on the girl, the Court is of
the view that the applicant’s insistence on the criminal
complaint and on proving the alleged bad faith of M.S. does not
appear to have been the most constructive approach for rebuilding the
emotional contact that the applicant had previously had with his
daughter.
- The
Court notes that the criminal proceedings against M.S. lasted a long
time and the case was referred back to the prosecutor on two
different occasions.
However,
it should also be borne in mind that none of the decisions adopted by
the prosecutor or the domestic courts during this time had found that
the mother had prevented him from having contacts with the child. In
referring the case back to the prosecutor, the domestic courts
answered the applicant’s requests that more witnesses be heard
and expert psychological report be ordered.
- Taking
into account that during this time the social services were
monitoring the case and in the absence of any indication that it was
the mother who had prevented the child from meeting the applicant,
the Court is unable to find that the delay in issuing a final
decision in the criminal proceedings against M.S. amounted to a
breach of the applicant’s right to family life.
- In
its analysis of whether the Romanian authorities took all the
necessary steps to facilitate the enforcement of the contact
arrangements between the applicant and his daughter, the Court should
determine further if social services, to whom the applicant appealed
for assistance, have acted diligently.
- The
Court notes that the applicant contacted them in March 2004, stating
that he was not able to see his daughter. As a result of his
requests, social services followed up on the case, with home visits
to the mother and the child and to the girl’s school.
- During
2004 and 2005 contact between M.S. and E. on the one side and social
services on the other were more frequent (see paragraphs 37-52 above)
E. was visited several times at her home by the social worker and
discussions were held in respect of the relation with her father. On
all occasions the girl held firmly that she did not want to see him.
Following their recommendation that the girl be enrolled in a
counselling programme, M.S. started taking the girl to a psychologist
once a week. It is true that these counselling sessions did not lead
to an improvement in the girl’s attitude towards the applicant.
Nevertheless, the Court reiterates that the public authorities’
obligation to take positive measures is not absolute. Neither is it
an obligation of result, but an obligation of means. Therefore the
Court does not consider that the authorities may be held liable for
the fact that despite counselling the girl still maintained a
negative attitude towards the father.
- The
Court further notes that during 2006 and a great part of 2007 M.S.
failed to reply to invitations to meetings with social services.
Nevertheless,
the Court’s task is to analyse the measures taken by the
authorities in this respect. According to the information in the case
file, they had invited M.S. and E. several times to their offices for
discussions, attempted to visit them at home without success,
telephoned and spoke to the grandfather, and spoke a few times with
M.S.
- In
respect of the mother’s position of not attending the planned
meetings, the Court does not find devoid of merit the reasoning
provided by the prosecutor and the domestic courts in their final
decision not to pursue M.S. criminally, that this attitude might be
explained by the child’s refusal to go to these meetings.
- The
Court further notes that at the end of 2007 M.S. and E.
re established contact with social services, an occasion when E.
declared that she still refused to spend time with her father.
- Considering
the state of the girl’s relationship with the applicant, and
her unchanging position of refusing to meet him, the Court does not
discern what further actions could have been taken by social services
in this respect. When reaching this conclusion the Court also takes
into account the girl’s statements that she did not like going
to their offices and she did not understand why other children with
divorced parents did not have to go to such meetings. The Court
therefore does not find unreasonable the attitude of social services
of trying to limit the pressure on the girl.
- As
regards the applicant’s complaint in respect of lack of action
on the part of the bailiff, the Court would note at the outset that
according to the Romanian Code of Civil Procedure the forcible
enforcement of a civil judgment, including judgments like the one
under discussion in the instant case, is done with the assistance of
a bailiff, on the basis of a preliminary request by the person
holding the enforceable right.
- The
applicant sought the assistance of a bailiff for the first time in
December 2007. The Court considers therefore that in the absence of
such a preliminary request on his part, the applicant cannot complain
of a lack of assistance from the bailiff prior to the date when he
lodged his first request in this respect.
- As
to the period following the first request for enforcement, the Court
observes that at the time, the applicant’s relations with the
daughter, as he admits himself, had already seriously deteriorated.
At the time, the girl was already of an age when she could not simply
be handed over to the applicant if she refused to join him. The
bailiff took account of the girl’s refusal to join her father.
The Court does not find this consideration arbitrary or
inappropriate.
- The
Court further takes into account the report drawn up by the bailiff
in respect of the meeting proposed by E. with the applicant for the
date of 2 October 2009. While understanding the applicant’s
feeling of frustration as he saw his relationship with his daughter
deteriorate gradually, it is reasonable to believe that a more
tolerant approach to the wish expressed by the child would not have
hurt the process of trying to rebuild that relationship.
- Stressing
the fact that the public authorities have positive obligations as
regards securing the enforcement of contact rights and thus
protecting the applicant’s right to family life, the Court
appreciates at the same time that re-establishing contact with a
child in such delicate circumstances requires long-term efforts on
the part of all concerned, including the applicant.
- The
Court finds that the statements given by the girl to different state
authorities and social workers reveal the great deal of effort that
she had to make all this time, by meeting different state
authorities, visiting a psychologist and trying to explain to the
applicant her views on their relationship and what she did not like
and wanted to change. The applicant’s efforts, as he himself
explained, appear to have been focused on obtaining an official
acknowledgement of his firm belief that M.S. was exerting a negative
influence on the child. The Court notes in this respect the girl’s
statements (see in particular paragraphs 29 and 76 above) that she
did not feel that he attempted to understand her point of view or to
respond to the wishes that she had expressed so many times.
Considering
that one must always keep in mind the best interest of the child and
be mindful that the positive actions of the authorities in protecting
the right to family life for one of the parents do not interfere with
the child’s own right to family life, it cannot be concluded
that the national authorities should have interfered, in this
emotionally fraught situation, to a greater extent than they have
done.
- All
the foregoing considerations are sufficient to enable the Court to
conclude that in the very difficult circumstances of the instant
case, the authorities struck a fair balance between the competing
interests and did not fail in their responsibilities to protect the
applicant’s right to family life with his daughter. Accordingly
there has been no violation of Article 8 of the Convention.
II. OTHER COMPLAINTS
- The
applicant also alleges a violation of Article 6 § 1 of the
Convention in respect of the various criminal and civil proceedings
initiated against the bailiff, the lawyer representing M.S. and the
prosecutors investigating the case. He also complained, under Article
6 § 1 of the Convention, that the domestic decisions defining
the level of child support were not well reasoned. He further
submitted that the same facts as constituted the alleged violation of
Article 8 of the Convention also gave rise to a breach of Article 5
of Protocol No. 7.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
failure to protect the applicant’s right to respect for family
admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Section Registrar President
