O.C.I.: Children illegally taken by mother abroad can’t be repatriated in case the threat of abuse is not adequately examined


Date of publication:  28 May 2019 Author:  Gergely Gönczi Publisher:  Strasbourgi Figyelő Publication type:  Legal / Policy Framework

O.C.I. and Others v. Romania

(Application no. no. 49450/17)

21 May 2019

Following their vacation in Romania, the mother and her two children did not return to Italy to the father. Relying on the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), the father won the case despite the presented video evidence, which explicitly illustrated that the father had physically abused his children on several occasions. The judgment of the European Court of Human Rights (ECHR) declares that the Romanian authorities failed to act in accordance with the principle of the best interests of the child when examining the gravity of the potentially existing threat which may affect the children upon repatriation. As a result, the Romanian courts have violated Article 8 of the Hague Convention, which provides the protection of family life.

The circumstances/background of the case

The proceedings were initiated by the mother, a Romanian national, and her two children, born in 2008 and 2010 with Romanian-Italian dual-nationality. Following their vacation in 2015 in Romania, the mother decided to remain in the country instead of returning to Italy to the children’s father.

The father then applied to the Bucharest Country Court for the return of their children to Italy, the place of their habitual residence, based on the provisions of the Hague Convention. The mother opposed the action of the father, which she justified with the fact that her husband had demonstrated violent behaviour against the children and mistreated and humiliated them both physically and psychologically. To support her statement, the mother submitted several video recordings as evidence. She also added that in the past years the situation had worsened and the number of cases of ill-treatment against the children had increased. She found it was her responsibility to protect the children from similar situations and, therefore, had decided to find refuge in Romania. The mother referred to Article 13 paragraph b) of the Hague Convention, which provides that “...the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

In 2016, the Romanian court issued its judgment favouring the father’s application. Accordingly, it ordered the children’s return to their habitual residence in Italy. Following the mother’s appeal, in 2017, the Bucharest Court of Appeal upheld the Bucharest Country Court’s decision. While the Romanian courts verified the father’s abusive behaviour, the sentence determined the acts of violence as “occasional”, which under Article 13 paragraph b) of the Hague Convention does not meet the requirements of the so-called “grave risk”. As a result, the domestic jurisdiction, on the grounds of the general rule, ordered the repatriation of the children to their habitual residence.

Additionally, the Court of Appeal referred to the 2201/2003/EK (Brussels Ila) Regulation on the jurisdiction, recognition, and enforcement of matrimonial and parental judgments. The Court highlighted that the Italian authorities would be able to guarantee the relevant provisions of the Hague Convention in case the children are exposed to the risk of any form of ill-treatment. However, since the mother and her children were unwilling to fulfill the final judgment of the Court and failed to return from Romania to Italy, the Italian authorities were unable to validate the Romanian courts’ decision.

In 2017, the mother and her children applied to the ECHR to review the judgment on the grounds that the Romanian authorities had breached their positive obligations enshrined in Articles 3 and 8 of the Hague Convention. The referred articles provide the prohibition of torture or other inhuman or degrading treatment or punishment (Article 3) and the right to respect for private and family life (Article 8). Additionally, the applicants emphasised that in the proximity of their father, the children are subjected to the grave risk of physical and psychological harm, which, in accordance with the Convention, exempts the mother of her responsibility to return the children home.

Judgment of the European Court of Human Rights

In reference to its finding in the D.M.D. v. Romania case, the ECHR stated: “that respect for children’s dignity cannot be ensured if the domestic courts were to accept any form of justification of acts of ill-treatment, including corporal punishment”. Accordingly, the Member States are responsible “to expressly and comprehensively protect children’s dignity which in turn requires in practice an adequate legal framework affording protection of children against domestic violence, including, inter alia, reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge”. Romanian law sets an absolute prohibition on the physical abuse of children. However, the Romanian authorities’ decision contradicted the absolute prohibition of torture and other forms of ill-treatment when it determined the acts of abuse as “occasional” despite the presented evidence explicitly illustrates that their nature falls within the category of “grave risk”.

The ECHR declared that “the domestic courts failed to examine the allegations of “grave risk” in a manner consistent with the children’s best interests within the scope of the procedural framework of the Hague Convention”. At the same time, the ECHR determined that the Romanian authorities did not assess adequately whether the children are exposed to the further threat of physical abuse in case they are repatriated. The reasoning of the Bucharest Court of Appeal accepted that in case the risk of physical and psychological abuse reoccurred, the Italian authorities would be able to guarantee the rights of children enshrined in the Convention. When assessing these questions, the ECHR referred to the K.J. v. Poland case, which relied on the Brussels Ila Regulation. It also recalled the regulation’s applicability in relation to the Royer v. Hungary case, which provides that the case is established on the principle of mutual trust in accordance with the Hague Convention. However, the ECHR highlighted that “the existence of mutual trust between child-protection authorities does not mean that the State to which children have been wrongfully removed is obliged to send them back to an environment where they will incur a grave risk of domestic violence solely because the authorities in the State in which the child had its habitual residence are capable of dealing with cases of domestic child abuse”.

Accordingly, the ECHR unanimously declared that the Romanian authorities failed to thoroughly examine whether the children are exposed to the threat of “grave risk” “ in a manner consistent with the children’s best interests within the scope of the procedural framework of the Hague Convention”. Concerning the right to human dignity, the ECHR did not determine a separate issue, therefore, it did not assess the application in regard to Article 3 of the Hague Convention. The ECHR held that the three applicants, the mother and the two children, are entitled to EUR 12,500 non-pecuniary and EUR 3,645 pecuniary compensation.

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