FOURTH SECTION

DECISION

Application no. 46263/20 Diana-Camelia BERCUCI against Romania

The European Court of Human Rights (Fourth Section), sitting on 9 May 2023 as a Committee composed of:

Faris Vehabović, President , Iulia Antoanella Motoc, Branko Lubarda , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 46263/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 October 2020 by a Romanian national, Ms Diana-Camelia Bercuci, who was born in 1984 and lives in Focşani, Vrancea (“the applicant”), who was represented by Mr A. Amuza , a lawyer practising in Bucharest;

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the proceedings for the return of the applicant’s child (Y) to the United Kingdom (“the UK”), where he was born and where his father (X), a British national, is living.

2. The applicant and X had an intermittent relationship in the UK. The applicant claimed that she had never lived with X and only saw him whilst working on a fixed-term contract in London. In July 2017 they had a son together, Y, born in the UK. Under Section 2(2) of the Children Act 1989, the applicant had sole parental responsibility for Y.

3. Having at first disputed paternity, X lodged several successful applications before the English courts asserting his parental rights over Y.

4 . On 7 June 2018 the Central Family Court, with the parties’ agreement, and being satisfied that it had jurisdiction concerning Y, based on his habitual residence being in the UK, granted X parental responsibility and made short-term childcare orders in relation to Y. Pending the final outcome of the proceedings (long-term child arrangements), it set Y’s residence with the applicant and granted X contact rights. The applicant was also ordered not to remove Y to countries that were not party to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), without X’s or the court’s permission. The applicant participated in the proceedings, and at least until 7 June 2018 she was also assisted by counsel.

5 . The applicant informed the Central Family Court that because of her work she intended to move to Spain with Y permanently. Consequently, on 26 October 2018 the court ordered her to surrender her and Y’s passports. As she failed to comply, similar orders to the same effect were issued by the Family Division of the High Court of Justice (“High Court”) on 26 October 2018 and 13 November 2019, enforceable with immediate effect.

6. On or about 26 October 2018 the applicant moved with Y to Romania. X claimed that after that date he was unaware of their whereabouts and had no contact with Y.

7 . On an unknown date X submitted a criminal complaint to the English authorities against the applicant, for child abduction (see paragraphs 16 ‑ 18 below).

8 . On 9 September 2020 the Central Family Court rendered the final judgment in the childcare proceedings (see paragraph 4 above). It made a declaration of parentage in favour of X and set Y’s residence with him. On her release from prison, the applicant was granted supervised contact rights for two hours every month (see paragraph 16 below).

9. On 9 April 2019 X lodged proceedings with the Romanian courts under the Hague Convention seeking Y’s return to the UK.

10 . On 14 June 2019 the Bucharest County Court ordered Y’s return to the UK. Relying on Article 8 of the Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels II bis Regulation”), and taking note of the findings of the Central Family Court (see paragraphs 4-5 above), the court found that the English courts had exclusive jurisdiction over Y based on his habitual residence being in the UK and over X’s parental and contact rights. The court noted the applicant’s submission that she had only been living in the UK temporarily at the time of birth, and interpreted it as proving that Y had been living in the UK lawfully before his removal.

11 . The County Court also noted that the English courts had prohibited the applicant from leaving the UK with Y whilst the proceedings before the latter were pending (see paragraphs 4 and 5 above).

12. Lastly, it found no indication that Y’s return to the UK would cause him irreparable harm (Article 13 of the Hague Convention).

13. The applicant appealed before the Bucharest Court of Appeal, arguing that Y’s habitual residence was in Romania.

14 . During the appeal proceedings, on 10 November 2019, whilst in transit at London Heathrow Airport, the applicant was arrested and remanded in custody pending trial for child abduction (see paragraph 7 above). She was brought before the Family Division of the High Court (see paragraph 5 in fine above) which, on 20 November 2019, after hearing the applicant in person consent to Y’s return to London, issued a return order concerning Y. On 28 November 2019 Y was returned to London by his maternal grandmother.

15 . In line with the submissions of the applicant’s lawyer, in a final decision of 9 December 2019, notified to the applicant on 3 February 2020, the Court of Appeal dismissed X’s initial request as being left without an object, on the grounds that Y had been returned to the UK.

16 . On 10 September 2020, the applicant was convicted of child abduction by the Kingston-upon-Thames Crown Court and sentenced to a custodial period of three years imprisonment.

17. On 5 November 2020, the UK’s Home Office issued a deportation order against the applicant, which she did not challenge.

18 . On 20 November 2020, the applicant was deported to Romania.

THE COURT’S ASSESSMENT

19. The applicant complained under Articles 3 and 8 of the Convention that the Romanian courts had wrongly established that the child’s habitual residence was in the UK and that by returning him to that country they had separated them and placed them in an intolerable situation.

20. Being the 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), the Court finds it appropriate to examine the complaints solely under Article 8 of the Convention (see, for instance, Voica v. Romania , no. 9256/19, § 43, 7 July 2020).

21. At the outset, the Court notes that the application was lodged within the three-month extension to the time-limit set by Article 35 § 1 of the Convention, introduced by the decision of the President of the Court in 2020 as a consequence of the lockdown imposed in France on account of the SARS ‑ CoV-2 coronavirus pandemic (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022).

22. The relevant principles regarding the interference with the right to respect for family life as well as the State’s positive 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) and have recently been reiterated in Michnea v. Romania (no. 10395/19, §§ 35-39, 7 July 2020).

23. The Court observes that the present dispute was determined following adversarial proceedings, throughout which the applicant, legally represented, had the opportunity to present her case fully (see Blaga v. Romania , no. 54443/10, § 67, 1 July 2014).

24. The County Court rigorously examined the facts and the applicable law and based its conclusion concerning the child’s habitual residence on both the conclusions of the UK courts which had examined the matter before them and on the applicant’s own admissions (see paragraphs 10 and 11 above).

25. Concerning the applicant’s contention that Y was habitually resident in Romania, the Court notes that her complaint lies with the English courts. From the documents before it, it is apparent to the Court that the English courts have satisfied themselves on several occasions that they had jurisdiction in relation to Y. In particular, the Court notes that one such instance was on 7 June 2018, when the applicant was represented by counsel (see paragraph 4 above).

26. It is noteworthy that the applicant did not challenge the English courts’ findings in the early stages of the proceedings, concerning their jurisdiction in relation to Y. Furthermore, the applicant did not argue before the domestic courts or before this Court that there were any good reasons which prevented her from appealing against the orders made by the English courts assuming jurisdiction.

27. In the appeal proceedings, the Court of Appeal was already aware that Y had been returned to the UK with the applicant’s consent, and that the applicant was in custody there (see paragraph 14 above). Its finding that there was no need to continue examining the merits of the application is coherent with the aim and object of the Hague Convention – to secure the prompt return of the child.

28. Despite the applicant’s allegations to the contrary, the Court observes that she had consented to Y’s return to the UK and a return order was therefore issued (see paragraph 14 above). Admittedly, at that time she was arrested in the UK, circumstance which might raise questions as to her consent being given freely. That said, she did not argue, before this Court or the relevant domestic courts, that her consent had been vitiated on this account. Ultimately, Y was removed from Romania’s territory and thus from the Romanian courts’ potential jurisdiction, without any intervention from the respondent State’s authorities. The decisions rendered by both the UK and Romanian courts at that time made the transfer lawful.

29. The Court finds that the County Court’s reasoning is specific in the light of the very particular circumstances of the applicant’s case (see Blaga , cited above, § 70, and, by contrast, Michnea , cited above, §§ 48-50). It has thus no strong reasons to substitute its own assessment of the facts and the evidence for that of the Romanian authorities (see Voica , cited above, § 53). Accordingly, the Court is unable to agree with the applicant’s allegation that the Bucharest Court of Appeal erred in its approach not to examine the merits of the case, in particular as her own lawyer made submissions to the same effect before the appeal bench (see paragraph 15 above).

30. Lastly, the Court notes that the applicant’s parental and contact rights concerning Y exceed the scope of the present application. Nonetheless, it is open to the applicant to pursue claims before the English courts to assert her rights.

31. Having regard to all of the above, the Court considers that the present case does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows the application must be rejected in accordance with Article 35 § 4 of the Convention

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 June 2023.

Crina Kaufman Faris Vehabović Acting Deputy Registrar President