FOURTH SECTION

DECISION

Application no. 14309/21 I.Z.R. and A.J.R. against Romania

The European Court of Human Rights (Fourth Section), sitting on 16 January 2024 as a Committee composed of:

Tim Eicke, President , Branko Lubarda, Ana Maria Guerra Martins , judges , and Ilse Freiwirth, Section Registrar ,

Having regard to:

the application (no. 14309/21) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 March 2021 by the applicants I.Z.R. (a Romanian national) and A.J.R. (a Romanian and Italian national), who were born in 1987 and 2018 respectively, live in Brăila and were represented by Ms N. Popescu, 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 not to have the applicants’ names disclosed;

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

the decision of the Italian Government, to whom a copy of the application was transmitted due to the second applicant’s Italian nationality, not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1 . The case concerns the proceedings for the return of the second applicant to Italy, lodged under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”).

2. On 14 February 2010 the first applicant married A.R., an Italian national, in Romania and moved with him to Italy.

3. On 3 February 2018 A.J.R., their son, the second applicant, was born in Italy where the family lived at the time.

4 . On 17 January 2019 the applicants went to Romania. I.Z.R. alleged that A.R. had given his consent for them to move back to Romania, while A.R. claimed that he had only consented to a short visit. The two applicants did not return to Italy.

5 . On 29 May 2019 A.R. lodged proceedings with the Bucharest County Court (“the County Court”) under the Hague Convention, seeking the return of the second applicant to Italy.

6 . I.Z.R. opposed the action and argued that A.R. had consented to the change of residence to Romania and therefore the child’s habitual residence had been lawfully established in Romania. The child was well integrated in his new environment and had developed a strong emotional attachment to his mother and maternal grandparents. Moreover, A.R. was mentally unstable and prone to violence and self-harm, and had been neglectful and verbally abusive with the child when they had lived together as a family. She argued that a return to Italy would expose the second applicant to physical or psychological harm and would thus constitute a grave risk for his health and wellbeing.

7 . In a decision of 1 July 2019 the County Court ordered A.J.R.’s return to Italy. It established that the parents had joint parental responsibility and that the child’s habitual residence was in Italy. It noted that the family lived together in Italy until 17 January 2019 (see paragraph 4 above) and that the child had been seen regularly by a doctor in Italy since his birth. It acknowledged that the parents had discussed on several occasions the possibility of moving to Romania, but observed that nothing in the file supported I.Z.R.’s allegations that the applicants’ relocation to Romania had been agreed upon. In the same vein, the fact that A.R. had consented to the applicants’ travelling to Romania did not prove that he had agreed to a change of residence. The court also considered that the evidence submitted did not support the allegations of “grave risk” to the child and reiterated that, in any case, the order to return did not equate to an obligation to return to the father’s home.

8 . On 16 July 2019 the first applicant appealed against the return order, arguing mainly that the County Court had wrongly established that the child’s habitual residence was in Italy and that there had been no grave risk to his well-being if he returned to Italy.

9. At the first applicant’s request, the Bucharest Court of Appeal, which heard the appeal, obtained past medical reports concerning A.R. who, according to the first applicant, suffered from various mental disorders.

10 . On 4 February 2020 the Court of Appeal partially quashed the County Court’s decision, finding that the allegations of psychological abuse of the child by the father required serious examination. On the other hand, it found that the County Court had correctly established the child’s habitual residence as being in Italy, based on the evidence in the file. The court asserted its jurisdiction to re-examine the merits of the allegations of “grave risk”.

11 . The court received A.R.’s medical records from a private clinic in Romania where he had been treated for various conditions in 2014-2015. It also ordered a psychological assessment of the applicants and A.R.

12 . An expert interviewed the parties, examined their exchanges (both oral and by email) and the available medical records. She filed her report on 4 October 2020. She concluded that both parents were fit to take care of the child and presented no mental health issues. She found that the second applicant was well integrated into his new environment in Romania and was emotionally attached only to his mother, a situation that she considered to be normal, bearing in mind that he had lived with his mother since he was eleven months old. The expert asserted that she had not identified any behaviour or attitudes that would put the child at risk if he returned to Italy, albeit acknowledging that the return would inevitably cause him emotional discomfort and that he would need time to adjust to a new environment. Both parents were advised to end their conflict and start cooperating and prioritising the well-being of the child.

13 . By a final decision of 17 November 2020 the Court of Appeal ordered the second applicant’s return to Italy, within seven days from the date of notification of the decision. The court considered, in the light of all evidence adduced, including the medical and psychological assessments, that the emotional discomfort that would be caused by the return to Italy was not such as to constitute a “grave risk” for the purpose of Article 13 § 1 (b) of the Hague Convention.

14 . At the date of the most recent communication from the parties (14 February 2022), to the Court’s knowledge, the return order was still unenforced. A.R. requested a bailiff’s assistance (23 March 2021), obtained a court decision ordering the first applicant to pay A.R. a daily penalty of 100 Romanian lei (about 20 euros per day) for the delays in the enforcement (21 July 2021) and lodged a criminal complaint with the Brăila County Police against the first applicant for non-compliance with a court order concerning custody rights. The applicants did not send further information about those proceedings.

THE COURT’S ASSESSMENT

15. The applicants complained, under Article 8 of the Convention, that the Romanian courts had erred when they established the child’s habitual residence and when they discarded the allegation of a “grave risk” that his return to Italy would cause (see paragraphs 7, 10 and 13 above).

16. The relevant principles regarding the interference with the right to respect for family life 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).

17. Both the County Court and the Court of Appeal examined the facts based on the evidence presented before them, and gave reasons for their decisions.

18. In particular, in determining the place of habitual residence, the County Court took into account the family’s situation, examined the nature and scope of A.R.’s consent and engaged with the parties’ arguments (see paragraph 7 above). The Court of Appeal agreed with the County Court’s conclusion (see paragraph 10 above) and the Court has no reason to find otherwise.

19. The allegations of “grave risk” under Article 13 of the Hague Convention were examined by both courts (see paragraphs 7 and 13 above). The Court of Appeal heard additional evidence and based its conclusion on medical and psychological opinions (see paragraph 11-13 above).

20. The Court finds that the domestic courts’ reasoning on both counts is specific in the light of the circumstances of the applicants’ case and took into account the best interests of the child (see Blaga v. Romania , no. 54443/10, § 70, 1 July 2014, and, contrast, Michnea , cited above, §§ 48-51). The applicants fully participated in the proceedings and had the opportunity to present their arguments (see paragraphs 6 and 8 above, as well as Blaga , cited above, § 67). The Court thus concludes that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully (see Voica v. Romania , no. 9256/19, § 53, 7 July 2020).

21. 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 29 May 2019 when the formal application was lodged with the County Court (see paragraph 5 above) and ended on 17 November 2020 (see paragraph 13 above). Moreover, there is no indication in the file that any attempts were made by the authorities to proceed with the enforcement of the return order and the steps undertaken by A.R. had so far been unsuccessful (see paragraph 14 above).

22. However, 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 appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

23. Accordingly, this application is manifestly ill-founded and must be rejected 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 8 February 2024.

Ilse Freiwirth Tim Eicke Registrar President