THIRD SECTION

Application no. 1714/10 Adrian Rodolfo FERRARI against Romania lodged on 21 December 2009

STATEMENT OF FACTS

The applicant, Mr Adrian Rodolfo Ferrari, is an Argentinean national, who was born in 1971 and lives in Buenos Aires.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant, a military pilot, has a child born on 11 August 2005 from his marriage with M.T.R. who holds both Romanian and Argentinean nationality. At the date of the facts, the family ’ s residence was in Argentina.

In September 2006 the applicant was sent to a UN mission in Cyprus where his family joined him shortly after. In order to facilitate the travelling, the applicant and his wife signed an authorisation form allowing each one of them the right to travel abroad with the child.

After having lived together for seven months in Cyprus, the applicant and M.T.R. decided together that she will take their child to Romania for a few months, and will join the applicant in Buenos Aires in October, at the end of his contract in Cyprus.

The parents agreed that M.T.R. and the child would return to Argentina before 15 October 2007, the date at which the child ’ s passport would expire.

Once in Romania, M.T.R. invoked various reasons to postpone the departure and on 14 November 2007 informed the applicant that she would not return with the child to Argentina.

On 16 November 2007 the applicant withdrew the authorisation that he had given to the wife to travel with the child.

He also lodged a request for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), with the Argentinean Ministry of Foreign Relations, the Central Authority for the purpose of the Hague Convention.

On 4 January 2008 the notification was received by the Romanian Ministry of Justice, the Central Authority for the purpose of the Hague Convention.

On 12 February the Romanian Central Authority tried unsuccessfully to engage the mother into negotiations concerning the return of the child to Argentina. On 3 April 2008 they lodged before the Bucharest County Court an application under the Hague Convention for the return of the child.

On 8 July 2008 the County Court granted the request and ordered M.T.R. to return the child to the habitual residence in Buenos Aires within two weeks from the date of its decision. It noted that while the applicant had given his consent to the travelling to Romania, his wife retained the child in Romania against the applicant ’ s will contrary to what had been initially agreed upon. It also observed that the parents maintained joint custody of the child, as they had been legally married at the date of the wrongful retention. It further noted that on 16 April 2008 the Huşi District Court had granted the couple ’ s divorce but had not decided on the custody of the child. It dismissed as unfounded the mother ’ s allegations that the applicant was not taking active part in the child ’ s upbringing and that his presence constituted a major risk for “the child ’ s physical, psychical, emotional and affective development”.

Upon an appeal lodged by the applicant, the Bucharest Court of Appeal upheld the County Court ’ s decision. The court gave its final ruling on 4 December 2008.

The Romanian Central Authority requested the assistance of a bailiff for the enforcement of the final decision. M.T.R. lodged an application for a stay of execution (dismissed by the Buc harest County Court on 25 March 2009) and informed the bailiff that she refused to comply with the return order (on 2 April 2009). She explained that the applicant could keep contact with the child through webcam, that she kept him updated with the developments of the child and that he did not support the child financially.

At the same time, M.T.R. requested the annulment of the final decision of 4 December 2008 ( contestaţie în anulare ) which she considered to be “unfounded and unlawful” ( netemeinică şi nelegală ). Her request was granted by the Bucharest Court of Appeal on 23 February 2009. The Court of Appeal retried the appeal and in a final decision of 4 May 2009 dismissed the initial request for the return of the child. The court considered that the child ’ s arrival to Romania was not unlawful as both parents consented to the trip. It further considered that it would not be in the child ’ s best interest to return to Argentina, because he was already integrated in his new environment. It pointed out that the applicant could not take proper care of the child, because he travelled often due to his job as a military pilot.

On 15 May 2009 the Romanian Central Authority informed their Argentinean counterpart of the outcome of the proceedings and advised the applicant to request a right of access under the Hague Convention. The Argentinean Central Authority sent the decision to the applicant and expressed their disagreement with the court ’ s reasoning. They argued mainly that the protractions leading to the child becoming integrated in his new environment, in Romania, were not imputable to the applicant, but to the Romanian authorities themselves. Moreover, they argued that the Romanian courts were wrong in considering that because of his profession the applicant could not take care of the child; in any event, such consideration should have been examined and decided by the courts ruling on the custody of the child.

The Romanian Central Authority kept close contact with the Argentinean Central Authority throughout the proceedings, by informing them of the progress of the case and by seeking information requested by the courts about the applicant. It appears that the applicant was never directly in contact either with the Romanian Central Authority, the courts or the bailiff.

B. Relevant international law

The relevant articles of the Hague Convention and the interpretation given to the concept of “the child ’ s best interest” are described in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 57-68, ECHR 2010) .

COMPLAINTS

1. The applicant complains under Articles 6 and 8 of the Convention about the length of the proceedings instituted through the Romanian Central Authority for the return of his child. He considers that in failing to act expeditiously, the Romanian authorities allowed for the family ties between him and his child to break.

2. He further complains, under Article 14 of the Convention, that he has been discriminated against based on his profession, in so far as the only reason why the Romanian courts denied him the return of his child was the fact that he belonged to the military forces.

3. Lastly, invoking Article 17 of the Convention, he complains that the Romanian courts made an erroneous interpretation of the rights guaranteed under Article 8 of the Convention and of the notion of “the child ’ s best interest”.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention, with regard to the proceedings lodged on his behalf for the return of his child under the Hague Convention on the Civil Aspects of International Child Abduction, concerning notably the length of those proceedings and the manner in which the Romanian courts interpreted the notion of “the child ’ s best interest” ?