FOURTH SECTION

DECISION

Application no. 37043/16 Anamaria NEDELCU and Anthony Kyle NEDELCU against Romania

The European Court of Human Rights (Fourth Section), sitting on 26 March 2019 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Egidijus KÅ«ris , Iulia Antoanella Motoc , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 21 June 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Ms Anamaria Nedelcu (hereinafter, the first applicant) and Mr Anthony Kyle Nedelcu (hereinafter, the second applicant), are both Canadian and Romanian nationals who were born in 1972 and 2009 respectively and who, at the date of the latest information available to the Court (11 September 2017) were living in Bucharest. They were represented before the Court by Mr A. Amuza and Mr V.G. Epure , lawyers practising in Bucharest.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar , of the Ministry of Foreign Affairs.

The circumstances of the case

3. The first applicant and S.M.M.R. are the second applicant ’ s parents. They all lived in Canada when the child was born.

4. On 6 December 2013 the Quebec Superior Court of Justice in Canada granted the parents shared custody of the child, and set the child ’ s residence with his father starting from 1 September 2014.

5 . In May 2014 the first applicant left Canada with the child and established their residence in Romania.

1. Proceedings for the return of the child

6 . On 27 May 2014 the Quebec Central Authority for the purpose of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, the “Hague Convention”) contacted the Romanian Ministry of Justice in order to seek the return of the child, at his father ’ s request. On 17 October 2014 the application for return w a s lodged, on behalf of the father, with the Bucharest County Court.

7. The County Court interviewed the child in the presence of a child psychologist and examined evidence in the file. The first applicant argued, under Article 13 (b) of the Hague Convention, that if returned to Canada, her child faced a grave risk of being exposed to physical or psychological harm by his father. The court reiterated that the allegations of grave risk of harm had been dismissed as ill-founded by the Canadian courts in the custody proceedings. The County Court further noted that the first applicant had tried to influence the child against his father during the proceedings in Canada and after their return to Romania. The fact that the child was integrated into his new environment in Romania did not constitute a reason to prevent the return of the child to Canada.

8 . Consequently, on 10 February 2015 the County Court ordered the child ’ s return to his habitual residence in Canada and ordered the first applicant to comply within two weeks of the date of notification of the decision. The decision was notified to the parties on 17 December 2015.

9. On 24 December 2015 the first applicant appealed. She argued that the child had been abused by his father after the adoption of the custody decisions in Canada. She also pointed out that the child had lived for two years in Romania and had become fully integrated into his environment. Moreover, if the child were to return to Canada, he would be completely separated from her. She could not follow him to Canada as she risked a criminal sentence of up to ten years for having taken him to Romania without his father ’ s consent.

10 . In a final decision of 1 March 2016 the Bucharest Court of Appeal upheld the return order. The relevant parts read as follows:

“... the allegations of risk of physical or psychological harm in the present case are unfounded. The facts of the case, as established by the first-instance court based on the relevant evidence brought before it, do not support such allegations. ...

... the court cannot accept the [first applicant ’ s] allegations that she is prevented from returning to Canada; allowing this argument would create an unacceptable extension of the exceptions provided in Article 13 § 1 (b) of the [Hague] Convention.

The first-instance court only decided on [the first applicant] ’ s obligation to ensure the child ’ s safe return to his habitual residence in Canada, without any thought as to how she would exercise her parental rights and obligations after the return ... Therefore, nothing stops her, after the return, from seeking any measures she deems appropriate from the court in the habitual residence ... This is the only normal and legitimate possibility to reverse the custody orders that she considers discriminatory and erroneous. ...

The delays in drafting the decision object of this appeal, do not render that decision unlawful ...”

11 . On 5 May 2016 the Bucharest District Court stayed the enforcement proceedings, pending the outcome of the proceedings for custody and for extradition ( see paragraphs 12-16 below). The court observed that the first applicant ’ s allegations that the father had been violent with their child had not been examined by the courts deciding on the request for return. It considered that it was in the child ’ s best interest to stay the enforcement in order to give the courts the time to decide on the opposition to the enforcement.

The father lodged an appeal, which was dismissed by the Bucharest County Court in a final decision of 8 June 2016.

2. Proceedings for custody of the child

12 . During the return proceedings, on 24 December 2014, the first applicant lodged an action with the Bucharest County Court asking to be granted custody of the child.

13 . On 1 July 2016 the County Court found in favour of the first applicant. It considered, firstly, that although the child ’ s return to Canada had been ordered, it had jurisdiction to examine the application for reasons of necessity. It also noted that the father had lost interest in the child and had not participated in any of the proceedings so far. On the merits, the court observed that the child had been subject to physical and emotional abuse by his father after the adoption of the custody orders in Canada, which, the court accepted, had motivated the first applicant ’ s decision to return to Romania with the child. It noted that the expert evaluations confirmed the child ’ s positive emotional development since being in Romania. The court also took into account the changes in the child ’ s life since the adoption of the return order and the fact that he was well integrated into his environment and did not wish to live with his father. For all these reasons, the court concluded that it was in the child ’ s best interest to remain with his mother and consequently granted custody to the first applicant and set the child ’ s residence with her. The decision was immediately enforceable. As the parties did not appeal, it also became final.

3. Proceedings for extradition

14. On 10 July 2014 the father lodged a criminal complaint with the Canadian prosecutor, against the first applicant, accusing her of having abducted his child. The Canadian authorities requested extradition.

15. On 13 April 2016 the Bucharest Court of Appeal heard evidence from the applicant and placed her in detention pending extradition. She remained in detention until 21 April 2016.

16 . On 24 May 2016 the Bucharest Court of Appel allowed the extradition request, but in a final decision of 7 June 2016, the High Court of Cassation and Justice dismissed it. The High Court considered that the applicant had committed the offence of non ‑ compliance with a court order concerning child custody which, because of the sentence it carried, was not subject to extradition in accordance with the Extradition Act (Law no. 302/2004 on international judicial cooperation in criminal matters).

COMPLAINT

17. Relying on Articles 3, 6 § 1, 8 and 13 of the Convention, the first applicant complained, on her own behalf and on behalf of her son, that in ordering the child ’ s return to Canada, the Romanian courts had failed to take into account the child ’ s best interest.

THE LAW

18. The applicants complained about an alleged infringement of their family life because of the manner in which the Romanian courts examined the request for the return of the second applicant to Canada. They relied on Articles 3, 6 § 1, 8 and 13 of the Convention.

19. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12 , §§ 114 and 126, 20 March 2018), will examine the complaint from the standpoint of Article 8 alone (see, for example and mutatis mutandis , Eberhard and M. v. Slovenia , no. 8673/05 and 9733/05, § 111, 1 December 2009 ).

This provision 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. The parties ’ submissions

1. The Government

20. The Government argued that as long as the enforcement proceeding were stayed (see paragraph 11 above), there was no risk that the second applicant would be sent to Canada. Consequently, the applicants had not suffered any damage. In addition, as the Romanian courts had set the child ’ s residence with his mother (see paragraph 13 above) and had refused the extradition request (see paragraph 16 above), there was no present risk that the applicants would be separated.

21. The Government pointed out that the domestic courts had examined all arguments brought by the first applicant before them in the Hague proceedings. They furthermore argued that although the proceedings for the return of the child had been lengthy, the passage of time had not caused any harm to the applicants.

2. The applicants

22. The applicants argued that the authorities had ordered the return of the second applicant without an in-depth examination of the case and had refused to hear evidence under the pretext of celerity. They had failed to ensure that there had been sufficient safeguards in the event the second applicant was returned to Canada. In this regard, they claimed that the authorities had been aware of the risk of criminal sanctions against the first applicant since March 2015.

23. The applicants contended that the lapse of time between the date the return order was decided and the date the decision was drafted and made available to the parties had prolonged the state of uncertainty over the second applicant ’ s fate both because the enforcement could have taken place any time during this period and because the courts had stayed the examination of the first applicant ’ s custody claims.

B. The Court ’ s assessment

1. General principles

24. The relevant principles regarding the interference with the right to respect for family life as well as the State ’ s pos itive obligations under Article 8 of the Convention in cases concerning the return of a child under the Hague Convention are summarised in X v. Latvia ([GC], no. 27853/09, § § 92-108, ECHR 2013).

2. Application of those principles to this case

25. From the outset, the Court observes that on the date the applicants lodged their application with the Court – 21 June 2016 – the proceedings for attribution of custody lodged with the Bucharest County Court were still pending. However, shortly after, on 1 July 2016, the court granted the first applicant custody of her son (see paragraph 13 above). Therefore, although the applicants complained about the proceedings brought for the return of the second applicant, the Court will take into account subsequent evolutions of the situation and will have regard to all circumstances surrounding the present conditions.

26. In this context, and regardless of whether or not the applicants may still claim to be victims of the alleged violation of their right to respect for their family life, the Court considers that the application is inadmissible for the following reasons.

27. The Court notes that the decision of 10 February 2015 ordering the child ’ s return to Canada (see paragraph 8 above) became final only on 1 March 2016, that is to say more than one year later (see paragraph 10 above). Two months later, on 5 May 2016 its enforcement was stayed (see paragraph 11 above). Moreover, on 1 July 2016 the County Court granted the mother custody of the child (see paragraph 13 above), which as the most recent authority has a binding effect not only on the parties, but also on the Romanian enforcement authorities. Therefore, after the adoption of the decision of 1 July 2016, the Court cannot discern any risk that the Romanian authorities would return the second applicant to Canada. Nor can the Court find any risk in the current situation that the first applicant would be extradited (see paragraph 16 above).

28. The Court further notes that before granting custody to the mother, the County Court asserted its jurisdiction and took into account the whole context including the allegations of violence perpetrated by the father against the child and the evolution of the child ’ s situation since his relocation to Romania. The court considered that the second applicant was integrated into his new environment and that it was in his best interest to remain with his mother. The Court notes that the domestic courts decided the matter with a view to protecting the child ’ s best interests which in cases such as the present one must be of primary consideration (see X v. Latvia , cited above, §§ 95-96).

29. The Court further observes that the applicants complained of a state of uncertainty caused by the length of the proceedings for the return of the child. Those proceedings started on 17 October 2014 when the formal application was lodged with the County Court (see paragraph 6 above) and ended on 1 March 2016 (see paragraph 10 above). However, while this length, which admittedly exceeds what is recommended by Article 11 of the Hague Convention (that is, to reach a decision within six weeks of the date of commencement of the proceedings), could be considered problematic, it is to be noted that in the present case it favoured the applicants. They were able to remain together throughout the proceedings and to continue to build their relationship in their new environment which ultimately led to the courts finding that the second applicant was fully integrated in Romania and that his interests were better served if he remained with his mother (see paragraph s 11 and 13 above). In fact, because of the length of the proceedings and the developments in the family situation, the applicants lived together in Romania unhindered from May 2014 (see paragraph 5 above) at least until 11 September 2017, the date of the latest information available on this matter (see paragraph 1 above). There is no indication in the file that any attempts were made by the authorities to proceed with the enforcement of the return order.

30. Accordingly, and in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appea rance of a violation of Article 8 of the Convention.

31. The application is therefore manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 April 2019 .

Andrea Tamietti Paulo Pinto de Albuquerque Deputy Registrar President