D.D.F. and Others
The European Court of Human Rights (Fourth Section), sitting on 8 January 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 10 October 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:
1. A list of the applicants is set out in the appendix. They are Italian nationals and are represented before the Court by Ms B. Randazzo, a lawyer practising in Milan. The second applicant also holds Romanian nationality.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
4. The first applicant, D.D.F., is the father of the second applicant,
C.-D.D.F., who was born in Italy in April 2013. The third applicant, M.R.M., is the first applicant’s paternal grandmother. The second applicant’s mother (hereinafter “G.”), is a Romanian national. On 15 June 2013, the first applicant and G. went to Romania with their son on holiday. G. remained in Romania with the baby and refused to return to their home in Italy.
5. On 6 February 2015 the Bucharest District Court granted joint custody to the first applicant and G. and ordered that the second applicant live with his mother; the first applicant was ordered to pay maintenance in favour of his son.
2. Attempts to see the child
6. On 22 April 2014 the first applicant contacted the Bucharest Directorate General for Social Welfare and Child Protection (“the child‑protection authority”) in order to seek assistance in organising contact with his son.
7. The following meetings between the first applicant and his son took place in 2014, under the supervision of the Bucharest Directorate General for Social Welfare and Child Protection and in G.’s presence: 23 and 28 April, 12, 13, 14 and 15 May, 10, 12 and 13 June 2014, 15, 16, 17 and 18 July, 19, 20, 21 and 22 August 2014, 16, 18September 2014, 15 and 16 October 2014, 11 November and 5December 2014. On some of these visits from May 2014 the third applicant was also present.
8. In addition, the child-protection authority’s employee in charge of the case contacted G. on several occasions to remind her of her duty to allow the first applicant to see the child, and to contact her when she missed the scheduled visits or refused to allow the first applicant to see the child.
9. On each report drafted after the meeting, the child-protection authority’s experts noted the good relations between the first applicant and his child and recommended that the parents continue their efforts to maintain contact between father and son.
10. On 7 January 2015 the first applicant instituted proceedings with a view to obtaining contact rights in respect of his child (see paragraph 14 below).
3. Interim injunction
11. On 3 April 2015 the first applicant lodged an application for an interim injunction (ordonanţă preşedenţială), seeking to have contact with his child during the main proceedings for contact rights. In a decision of 27 April 2015, the Bucharest District Court considered that it would be in the child’s best interest to spend more time with his father and set a contact schedule in their favour. It ordered that all meetings between the first applicant and his son take place in G.’s home, but without her being present. The court dismissed the first applicant’s application to be allowed to VOIP call (Voice over Internet Protocol) his son every day, as it considered it inappropriate for the child’s age and detrimental to his development.
12. In a final decision of 10 June 2015, the Bucharest County Court amended the schedule, allowing the first applicant to have contact with the child outside his mother’s home, but not to leave Romania with him. It considered that this arrangement was in the child’s best interest and the most age appropriate.
13. During the summer of 2015, the first applicant was unable to see his son, as G. was either out of town with the child or she simply refused to bring the child to the meetings with his father. The child-protection authority contacted G. on behalf of the first applicant, but did not obtain any cooperation concerning the execution of the contact programme.
4. Contact order
14. On 7 January 2015 the first applicant lodged an application with the Bucharest District Court seeking to have contact with his son, in particular to visit him according to a proposed schedule and to communicate with him via email and VOIP every day. He explained that G. had denied him the possibility to maintain contact with his son and that the situation had worsened because of the legal disputes between them. The few visits he managed to have with his child had always been strained and thechild‑protection authority had been involved.
15. On 6 August 2015 the District Court set a contact schedule in favour of the first applicant. It considered that it was important for the second applicant to build a direct relationship with his paternal family. The court denied the request to have daily VOIP and telephone contact between the first and second applicants on the grounds that the child was too small to use the telephone and the Internet and that imposing such an obligation on the mother would encroach disproportionately on her right to use or refrain from using technology. The court noted that in the future when the child had started using the Internet himself, he would be free to maintain contact with his father through this means. Furthermore, the Court observed that in that moment the child was building his relationship with his father and paternal family and considered that the direct contact between them was the best means of achieving that goal. The decision was enforceable.
16. On 11 August 2015 G. appealed and asked for a stay of the enforcement proceedings during the examination of the appeal. At the same time she applied for an interim order for a stay of the enforcement.
17. On 20 August 2015 the Bucharest County Court dismissed the interim request. It took note of the efforts made by the first applicant to maintain contact with his son: he had rented a flat in Bucharest and he made frequent visits to Romania to spend time with the child; moreover, the child‑protection authority had found that the child interacted well with his father even in his mother’s absence.
18. On 19 February 2016 the Bucharest County Court decided to stay the enforcement of the decision of 6 August 2015 (see paragraphs 15 and 16 above). The decision of 10 June 2015 (see paragraph 12 above) thus continued to apply.
19. On 27 June 2016 the Bucharest County Court dismissed an appeal lodged by the first applicant, partially allowed an appeal lodged by G., and set a new contact schedule for the first applicant. In view of the second applicant’s age, the meetings were to take place in Romania where the first applicant was residing. The relevant parts read as follows:
“The court notes that [the first applicant]’s right to have personal relations with his son … does not interfere with the minor’s normal activities and does not affect his health. Staying overnight with his father and the possibility to leave for a few days with him will encourage the creation of a strong bond between the father and the minor, thus respecting the child’s best interest. It is not justified to limit the interactions between the father and the son in so far as [the first applicant] holds an accommodation and makes effort to ensure that the child is comfortable at his place of residence and has the financial means to spend holidays with the minor in optimal conditions. … The court draws the parents’ attention [to the fact] that, for the child’s benefit, they must cooperate, be civil to each other, and make all efforts to ensure a climate which is favourable for their son’s harmonious development. It is true that currently the minor is reluctant to spend time with his father, but it is essential, first of all for the child, that the relationship between the two be rebuilt – which demands effort both from [the first applicant] and from [G.]. …
… In the light of the child’s young age and of the difficulties in building the father‑son relationship, the court considers that contact rights should be exercised exclusively in Romania. This way [the first applicant] and his family have the possibility to interact directly with the child, either at [the first applicant]’s place in Bucharest, or by travelling through the country, without traumatising the child by taking him away from his familiar environment and by forcing him to spend time in a foreign environment where he has not mastered the language …”
5. Enforcement of the contact schedule
(a) Bailiff’s office
20. On 23 December 2015 the first applicant sought the assistance of a bailiff in order to ensure that he would be able to take his son to Italy for the New Year’s holidays, as allowed by the decision of 6 August 2015 (see paragraph 15 above). On the same day, the bailiff contacted G., informed her of the first applicant’s request to have contact with his son and asked her to be at home with the child on 29 December 2015 to allow the exercise of the first applicant’s right.
21. On 28 December 2015 G. lodged an objection to the enforcement and asked for an interim order for staying the enforcement proceedings. On 29 December 2015 the Bucharest District Court dismissed the objection.
22. On 29 December 2015 the first applicant, the bailiff, a representative of the child-protection authority, and a police officer came to G.’s place of residence. They found nobody at home. The bailiff lodged an application with the Bucharest District Court, seeking that G. be fined for disobeying the court order.
23. In an interlocutory judgment of 19 February 2016 the Bucharest District Court dismissed as unfounded G.’s request for a stay of execution lodged on 28 December 2015 (see paragraph 21 above) and ordered her to pay the first applicant 500 Romanian lei (RON – approximately 110 euros (EUR) at that time) for each day of non-enforcement of the contact schedule.
24. The bailiff continued the enforcement proceedings, first of the interim injunction of 27 April 2015 (see paragraph 11 above) and then of the final decision of 27 June 2016 (see paragraph 19 above), together with the child-protection authority and the local police. On 15 January and 5 February 2016 G. refused to allow the first applicant to see his son. From 5 February to 27 June 2016 his visits were restricted to two hours per week. On 15 and 17 August, on 2 September, 21 October and 4 November 2016, 17 February, 17 March, 7 and 14 April 2017 the first applicant did not find anyone at G.’s home at the allotted visiting times.
(b) Child-protection authority
25. On 14 March 2016 the child-protection authority conducted an investigation into the child’s situation. It noted in the report that the parents did not communicate in a manner which was healthy for the child. In addition, it was noted that while the father deployed all his resources and used all avenues in order to maintain contact with his child, the mother disapproved of his methods and refused to cooperate with him concerning their offspring.
26. The child-protection authority’s experts noted that the child was happy and relaxed in his father’s home but also happy to return to his mother (report of 10 April 2016). They expressed concern about the tensions between the parents in respect of the contact schedule. For that reason, from 5 February to 29 May 2016 they monitored the case, by attending some of the encounters between the parents and the child, conducting interviews and assessments with the parties. In a report drafted at the end of the monitoring period, they recommended that the contact between the first applicant and his son be extended even beyond what had been decided by the courts and that the parents improve their communication in order to ensure that they exercised their parental authority together.
27. On 1 November 2016 two employees of the child-protection agency visited G. at her home and talked with her and her mother about the child’s situation. Subsequent to their visit, on 15 November 2016 they informed G. that because of her refusal to allow contact between the first applicant and their child the situation would be monitored again by the agency. G. was offered parental counselling, and a psychological evaluation. She was non‑committal in her answers. On 21 December 2016 the same employees of the child-protection authority also met the first applicant to discuss the situation, but G., who had also been invited, refused to participate in this meeting.
28. On 16 February 2017, at the first applicant’s request, the child‑protection authority made a detailed assessment of the situation; it examined the records of the previous encounters between parents and child, conducted separate interviews with the parents and observed the child. The report concluded that the parents had failed to establish communication lines concerning their child, that the mother had obstructed the father’s relationship with the child and had made false assertions about the alleged danger the father posed to the child. It found as follows:
“At this moment the child’s right to have personal relations with his non-custodial parent is being breached, and the mother exercises her parental authority abusively by opposing any personal relations between the child and the other parent.”
The child-protection authority proposed counselling the parents and seeking a court decision limiting the mother’s parental authority.
29. Based on the report of 16 February 2017, on 13 April 2017 the child‑protection authority drafted a rehabilitation plan for the child. The first applicant signed the agreement, but G.’s signature was not obtained.
30. On 2 November 2016 the first applicant applied to have the Bucharest District Court calculate the penalties (penalităţi) G. had to pay him for failing to comply with the contact schedule (see paragraph 23 above).
31. On 19 January 2017 the Bucharest District Court allowed the application, noting that G. continued to prevent the first applicant from seeing his son, and ordered her to pay the first applicant RON 39,000 (approximately EUR 8,600 at that time) in penalties. On 8 June 2017 G. paid the debt and the enforcement costs.
7. Criminal conviction
32. In 2015 the first applicant lodged a criminal complaint against G. and on 22 March 2017 the Bucharest District Court convicted G. for resisting the enforcement of a final judgment concerning children’s rights and gave her a two-year suspended prison sentence.
8. New custody arrangements
33. On 19 October 2016 G. lodged an application, seeking that the child be placed exclusively in her care, arguing that because of the first applicant’s attitude, the exercise of joint custody had proved detrimental to the child’s development. The first applicant lodged a counterclaim, also seeking to be granted sole custody of the child. He argued that G. had systematically prevented him from seeing his child and from participating in the decisions concerning his health and development.
34. In a decision adopted on 22 May 2017, the Bucharest District Court granted the first applicant sole custody of the child. It noted that the parents had been unable to exercise parental authority jointly, that G. had not ensured the proper conditions for the first applicant to maintain contact with his son between 2013 and 2015 and had denied him the right to see the child since the summer of 2016. She had also systematically and unjustifiably opposed the normal course of the relationship between the first applicant and his son and had tried to alienate the child from his father.
35. In a final decision of 7 February 2018, the Bucharest County Court dismissed an appeal lodged by G. It considered that the decision adopted by the District Court had been taken in the child’s best interest.
36. The first applicant started the enforcement proceedings of the new custody order and on 24 July 2017 the bailiff asked G. to bring the child to his office in order to allow the first applicant to take him home.
37. On 31 August 2017 G. lodged an objection to the enforcement proceedings, but on 5 October 2017 she withdrew that objection.
38. On 3 November 2017 the Cornetu District Court, which had taken on the case after G. had changed address with the child, dismissed G.’s application for a stay of the enforcement proceedings.
39. On 17 November 2017 G. came with the child in the bailiff’s office and sought information about where the child would live if taken by his father. The child cried and refused to leave with his father. It appears, from the information available to the Court that in February 2018 the child was still living with his mother.
B. Relevant domestic law
40. The relevant provisions of the Code of Civil Procedure concerning the enforcement procedure for the enforcement of court orders concerning minors is set out in Niţă v. Romania ([Committee], no. 30305/16, §§ 27‑30, 3 July 2018).
41. Relying on Article 8 of the Convention, the first applicant complained about the fact that contact via VOIP and telephone had not been allowed and that the second applicant had not been permitted to travel to Italy with or to his father. Because of this prohibition the third applicant, who was 80 years old and blind, would never be able to establish a relationship with her grandson. He further complained about the length of the various proceedings engaged with the Romanian authorities in order to allow him to maintain contact with his son.
42. Under the same provision of the Convention, the first applicant complained, on his behalf and on behalf of his son, that the Romanian authorities had neglected their obligation to assist the applicants in the enforcement of the court orders setting contact rights. The difficulties in seeing his child and the lack of help from the authorities had caused the first applicant stress and depression amounting to an additional infringement of his Article 8 rights.
43. Lastly, the first applicant complained, under Article 14 of the Convention read in conjunction with Article 8, that the Romanian authorities had adopted a discriminative attitude towards him because he had not been a Romanian, and had thus given G. preferential treatment.
44. The applicants complained that their right to have their family life respected had been breached because of the terms of the contact schedules set by courts, of the State’s failure to enforce the court orders concerning those schedules, and of delays in the court proceedings concerning contact rights. In addition, the first applicant complained that he had been discriminated against in the court proceedings and the enforcement of the court orders because of his nationality. The applicants relied on Articles 8 and 14 of the Convention, which read 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.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The parties’ submissions
1. The Government
45. The Government argued that the third applicant had failed to exhaust the available remedies in order to obtain the right to personal relations with her grandson. She had not sought recognition of her rights before the domestic courts.
46. They further contended that as long as the new custody proceedings were still pending, the application was premature and thus the applicants had not yet exhausted all effective remedies.
47. As for the terms of the right to maintain personal contact, the Government averred that the domestic courts had assessed the situation and given extensive reasons for their decisions. They had not breached the applicants’ right to respect for their family life and had not adopted a discriminatory attitude vis-à-vis the first applicant.
48. The Government did not deny the impact on the first applicant’s family life of the difficulties encountered in his attempts to see his son. However, they argued that the State authorities had diligently assisted the first applicant and offered their support, making it possible for him not to lose contact with his son completely, despite G.’s constant opposition. They further contended that all the authorities – the courts, the bailiff’s office and the police included – had acted with the requisite expedition in order to facilitate the contact between the first applicant and his son.
2. The applicants
49. The applicants contended that, even if a remedy had existed for securing the grandparents’ contact rights, it would have been inaccessible to the third applicant because of her personal circumstances. They further reiterated that their complaint concerned contact rights and not the custody arrangements and therefore the outcome of the new custody dispute (see paragraph 34 above) was irrelevant to the case.
50. The first applicant complained that he had had to travel frequently to Romania in order to maintain contact with his son, which had put a disproportionate burden on him.
51. Furthermore, the first applicant argued that the child-protection authority had only intervened at his request and never on its own initiative and that the authorities had not provided their assistance in a timely and efficient manner, thus making it impossible for the first applicant to see his son for long periods of time.
52. Concerning Article 14 of the Convention, the first applicant argued that because of the authorities’ lack of response, G. had been able to completely remove the Italian culture and heritage from the second applicant’s upbringing.
B. The Court’s assessment
1. General principles
53. 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 enforcement of contact rights are summarised in the cases of M. and M. v. Croatia (no. 10161/13, §§ 176-181, ECHR 2015 (extracts)) and K.B. and Others v. Croatia (no. 36216/13, §§ 142-144, 14 March 2017). Therefore, notwithstanding the principle of subsidiarity, the Court’s task is to determine whether the national authorities have taken all necessary steps to facilitate reunion as can reasonably be demanded in the special circumstances of the case (see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 128, 1 December 2009).
2. Application of those principles to the case
54. The Court notes that the Government raised two objections of non‑exhaustion of domestic remedies, one with regard to the third applicant and the other with regard to the new custody proceedings which, at the time of the Government’s observations, were still pending (see paragraphs 45-46 above). In addition, although there has been no objection on the part of the Government in this regard, the Court considers that a doubt may arise as to whether the first applicant has standing to bring the case on behalf of his minor child, at least concerning the complaint about the enforcement of the contact rights programme, in so far as, at the date of the lodging of the application, he did not have sole custody of the child (see, notably, M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012; and Eberhard and M., cited above, § 88). However, the Court considers that it is not necessary to rule on these matters, as the application is in any case inadmissible for the following reasons.
(a) Terms of the contact rights
55. The first applicant complained, on behalf of all the applicants, about the scope of the contact schedules set by the courts and the absence of VOIP contact with his son. The Court notes that there were two sets of contact schedules, one decided in the interim proceedings (see paragraphs 11 and 12 above) and the second one set in the proceedings on the merits of the contact rights (see paragraphs 15 and 19 above). On both occasions the courts did not allow the first applicant to take his son to Italy or to have daily VOIP contact with him.
56. The Court accepts that the fact that for the applicants not to be able to see and talk with each other as often as they wanted amounted to interference with their right to respect for their family life. This interference was in accordance with the law, notably the relevant provisions of the Code of Civil Procedure applicable to the contact rights (see paragraph 40 above), and pursued a legitimate aim, that is to say the protection of the rights of others (see, mutatis mutandis, Johansen v.Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996‑III).
57. As for the necessity of the interference, the Court notes that on each occasion when the domestic courts examined the first applicant’s application for contact rights in respect of his son, they gave reasons both for the terms of the contact programme and for the mechanism indicated for the visits. The Court is satisfied that the domestic courts assessed the child’s best interests and were mindful of finding the appropriate setting for the exercise of the contact rights which would be best adapted to his age and development (see paragraphs 11, 12, 15 and 19 above). Moreover, the Court notes that the domestic courts did not exclude the possibility that the contact between the applicants would expand in the future and allow for contact via the Internet. The Court finds that, in the circumstances of the case, these reasons advanced were convincing both concerning the place of visits and the restriction of the means of contact.
58. In this context, the Court considers that the restrictions on the applicants’ contact rights were sufficiently justified for the purposes of Article 8, it having been shown that the measures corresponded to the child’s best interests.
59. In addition, the Court notes that in both sets of proceedings the domestic courts acted with exemplary expedition as required in cases concerning rights of children (see Eberhard and M., cited above, § 127, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000‑I): the interim proceedings started on 3 April 2015 and ended only two months later, on 10 June 2015 (see paragraphs 11 and 12 above), and the main proceedings started on 7 January 2015 and ended seventeen months later, on 27 June 2016 (see paragraphs 14 and 19 above).
60. Lastly, the Court does not see any indication in the file that the first applicant had been treated differently by the domestic authorities because of his nationality. It reiterates that the prevailing reason for refusing the exercise of contact rights in Italy was the child’s age (see paragraphs 12 and 19 above). Moreover, the Court notes that in the recent custody proceedings (which, admittedly, do not constitute as such the object of the present application), the domestic courts did not hesitate to grant the first applicant sole custody of his child and to set the child’s residence with him, as soon as the interests of the child so dictated (see paragraphs 34 and 35 above).
61. For these reasons, 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 appearance of a violation of Article 8 taken alone or together with 14 of the Convention.
62. Accordingly, this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§3(a) and4 of the Convention.
(b) Enforcement of contact rights
63. The first applicant complained on his behalf and on behalf of his son that the State authorities had failed to comply with their positive obligations to assist them in their effort to execute the court orders setting the contact schedule.
64. The Court notes that, even in the absence of a court order granting contact rights between the applicants, the child-protection authority assisted the first applicant from the moment he alerted that authority about the difficulties encountered with G. (see paragraph 6 above). The authority organised – or at least accompanied the first applicant on – most of the visits he had with his son (see paragraph 7 above), strived to maintain dialogue with the two parents and offered them counselling (see notably paragraphs 8, 13, and 27 above), and monitored and assessed the situation (see notably paragraphs 25 and 28 above). The bailiff’s office also assisted the first applicant in his efforts to see his child (see paragraphs 22 and 24 above). Both authorities acted without delays and tried to mitigate the constant opposition from G.
65. The Court further notes that the first applicant was able to use an arsenal of means put at his disposal by the State in order to have G. comply with the court orders. In particular, he was awarded damages for G.’s refusal to allow contact (see paragraph 31 above) and was able to secure her criminal conviction for non-compliance with a court order concerning children’s rights (see paragraph 32 above). Moreover, the domestic courts, bearing in mind the child’s best interest, took firm action against G., divesting her of her parental authority and giving custody of the child to the first applicant as a consequence of her fierce opposition to any contact between the first applicant and their son (see paragraphs 34 and 35 above).
66. The Court notes that, despite the authorities’ efforts, the first applicant remained unable to see his son on a regular basis. Moreover, at the last meeting between him and his son that the Court was informed of, the child refused to leave with his father (see paragraph 39 above). Nevertheless, the Court reiterates that the authorities’ duty to take measures to facilitate reunion is not absolute and the impossibility to enforce the court orders cannot lead automatically to the conclusion that there was a failure to comply with their positive obligations (see Mihailova v. Bulgaria, no. 35978/02, § 82, 12 January 2006, and Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000-VIII). It therefore cannot hold the State responsible for this outcome as such.
67. The Court further observes that there were no significant delays in the enforcement proceedings that can be attributed to the State authorities. The length of enforcement proceedings was caused exclusively by G.’s attitude.
68. In this context, reiterating that the State’s obligation to take positive measures to facilitate contact is not one as to results but one as to means (see Răileanu v. Romania(dec.), no.67304/12, § 42, 2 June 2015 with further reference), the Court concludes that the national authorities have taken all the steps necessary to facilitate the exercise of contact rights that could reasonably be expected from them in the specific circumstances of the case.
69. Lastly, the Court notes that there is nothing in the file that would indicate any form of discriminatory treatment against the first applicant throughout the course of the enforcement proceedings.
70. For these reasons, 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 appearance of a violation of Article 8 taken alone or together with 14 of the Convention.
71. Accordingly, this part of the complaint is also 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 31 January 2019.
Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President
1. D.D.F. who was born in 1973, lives in Naples
2. C.-D.D.F. who was born in 2013, lives in Bucharest
3. M.R.M who was born in 1936, lives in Naples