Last Updated on May 30, 2019 by LawEuro
Information Note on the Court’s case-law 221
August-September 2018
Cristian Cătălin Ungureanu v. Romania – 6221/14
Judgment 4.9.2018 [Section IV]
Article 8
Positive obligations
Article 8-1
Respect for family life
Lengthy separation of father and child due to lack of statutory possibility to have visiting rights established during divorce proceedings: violation
Facts – In autumn 2012 the applicant’s wife moved out of the family home and filed for divorce and custody of their six-year-old son. The applicant lodged an application for an interim injunction, seeking to be granted sole or shared custody of the child or, alternatively, the right to visit the child pending the conclusion of the divorce proceedings. In January 2013 a district court, noting that the applicant had not been prevented from visiting his son in the mother’s new home, found that changing the child’s residence temporarily would not serve his interests, and that, in any case, the domestic law did not provide for the possibility to have visiting rights established during divorce proceedings. This decision was upheld. The applicant had been unable to see his son from June 2013 till November 2016, when the final decision in the divorce proceedings was issued, granting sole custody to the mother and visiting rights to the applicant.
Law – Article 8: While the domestic courts had not always rejected as inadmissible requests for visiting rights made during divorce proceedings, nothing in the law itself allowed the applicant to expect a different outcome. In fact, the provision of the law in question, by its very nature, removed the factual circumstances of the case from the scope of the domestic courts’ examination. It had been a prevalent factor in the domestic courts’ decisions. The remaining argument, namely that the applicant had not been prevented from seeing his child, could not be construed as constituting an effective examination of the child’s best interests but had rather been a mere observation of the situation at that particular moment. Moreover, the domestic courts had not examined the precariousness of the situation, nor had they responded to the applicant’s request for a more structured visiting plan. They had, as such, left the exercise of a right which was fundamental to both the applicant and his child to the discretion of the applicant’s spouse with whom he had had (at the time) a conflict of interest.
In addition, the divorce proceedings had lasted for more than four years, affecting the applicant and his child for about three years and five months. While the underlying problem lay with an insufficient quality of the domestic law, the lengthiness of that period of time led the Court to conclude that the respondent State had failed to discharge its positive obligations under article 8 of the Convention (see M. and M. v. Croatia, 10161/13, 3 September 2015, Information Note 188).
Conclusion: violation (unanimously).
Article 41: EUR 8,000 in respect of non-pecuniary damage.
(See also Cengiz Kılıç v. Turkey, 16192/06, 6 December 2011, Information Note 147)
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