Strasbourg backs father’s ‘right to family life’

Family|May 8th 2015

Romania breached a father’s rights to family life by taking more than a year to resolve a claim for the return of his child, a European Court has ruled.

Ferrari v Romania concerned a pilot in the Argentinian military, who was married to a woman with a Romanian background. They had one child. In 2006 the father was transferred to Cyprus on a UN mission, and his family joined him there.

Once settled on the Mediterranean island, the wife decided to visit her sister in Spain. The parents signed a form giving each party permission to travel abroad with the child. A few months later, as the father approached the end of his period in Cyrus, the wife again decided to take their son to visit relatives, this time in Romania. She agreed to rejoin the father in Buenos Aires following his return to Argentina.

However, following a disagreement over the child’s passport, the mother announced that she in fact did not intend to return to Argentina after all. The pilot responded by withdrawing the travel authorization and filing a request with the Argentinian courts for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction.

The wife responded by filing for divorce and custody of the child in Romania. But the courts in the eastern European country were obliged to respond to the father’s Hague Convention request as both Romania and Argentina are signatories to the treaty. She was ordered to return to Argentina within two weeks. She unsuccessfully appealed.

Later, however, the Romanian courts changed their view of the case. Following a rehearing, they found that the child had been brought into the country legally and had now fully settled. As the father travelled frequently, he would not be able to properly care for the child, the courts declared. They awarded custody to the mother, with the father only receiving contact rights.

The father took his case to the European Court of Human Rights (ECHR), claiming that the lengthy delay in responding his case under the Convention had meant the child’s attachment to this father had been broken, breaching his rights under Articles 6 and 8 of the European Convention on Human Rights. Article 6 covers the right to a fair trial while Article 8 governs the right to respect for family life.

The ECHR ruled that the father did have a case under Article 8. The decision by the Romanian authorities to re-examine the case had been in breach of case law, and the Appeal Court had been wrong to quash the return on the basis of opposing points of view. It had also, the ECHR ruled, not properly considered the effects of the boy’s retention in the country.

The Romanian courts had also been wrong to claim the father’s work was relevant to the Hague claim. They had taken 13 months to rule on the application, and five months before attempting to enforce the initial return order.

The Court concluded:

“The foregoing considerations are sufficient to enable the Court to conclude that in not giving sufficient reasons for the non-return order, in allowing for the procedure to last for thirteen months and in protracting the enforcement proceedings, the authorities failed to facilitate the expeditious and efficient conduct of the return proceedings. In sum, the applicant did not receive effective protection of his right to respect for his family life.”

The man was awarded EUR 7500 in damages.

Read the judgement here.

Author: Stowe Family Law

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