A Romanian mother living in England has won her appeal against a ruling that her son be returned to his father in the Eastern European country.
In Re D, the parents, both Romanian, had met while working in England, he as a builder and she as a cleaner. They lived together for two years before marrying back in Romania when the mother fell pregnant. Their son was born in Romania in November 2006 and the family returned to England shortly afterwards.
Later the same year, however, the parents separated and the father returned to Romania. He subsequently remarried. The father returns to England regularly, visiting his son with whom he has a “good relationship”.
Nevertheless, legal proceedings concerning the boy have “continued uninterrupted” since the parents’ separation in November 2007.
Sitting at the High Court in London, Mr Justice Peter Jackson noted:
“Even though [the son] has been habitually resident in England since arriving here, his parents have chosen to litigate about him in Romania and the Romanian court has, with one exception, entertained their litigation.”
“In broad terms, there have been eight main orders over the last six years, with every previous order being subject to appeal or to a rehearing.”
Finally, at a recent hearing in the Romanian Court of Appeal, judges ordered the return of the boy to his father and this order was registered for enforcement in England.
The boy is now seven years of age, does not speak Romanian and has never been back to the country since his birth.
The mother appealed and the Court of Appeal ruled in her favour. The child had not been given the opportunity to take part in the Romanian family court proceedings and that placed them in breach of Brussels II Revised, a European regulation which governs family law cases involving two or more member states.
Article 23(b) of Brussels II Revised states that:
“A judgment relating to parental responsibility shall not be recognised:
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought…”
This was also, said the Court of Appeal,” a violation of the fundamental principles of procedure in this jurisdiction”.
The Romanian court had claimed that the boy “constantly” craved his father’s company, but there was no evidence for this assertion said the High Court.
Read the full judgement here.