FOURTH SECTION
\nDECISION<\/p>\n
Application no.53631\/16
\nAna PUCHEA
\nagainst Romania<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 26\u00a0February 2019 as a Committee composed of:<\/p>\n
Paulo Pinto de Albuquerque, President,
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 6 September 2016,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Ms Ana Puchea, is a Romanian national who was born in 1970 and lives in Bucharest. She was represented before the Court by Ms\u00a0D.\u00a0Pricop, a lawyer practising in Buftea.<\/p>\n 2.\u00a0\u00a0The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0The applicant was married to R. and in August 2004 a child was born to them. In 2005 the applicant left the marital home. The child remained with R. and the paternal family.<\/p>\n 1.\u00a0\u00a0Divorce and custody proceedings<\/em><\/p>\n 5.\u00a0\u00a0On 28 January 2008 R. filed for divorce and sole custody of their child.<\/p>\n 6.\u00a0\u00a0On 22 February 2010 the Bucharest District Court granted the divorce and awarded R. sole custody of the child. The court also established a detailed contact schedule.<\/p>\n 7.\u00a0\u00a0The decision of 22 February 2010 became final on 21\u00a0April\u00a02011, when the Bucharest Court of Appeal dismissed an appeal on points of law lodged by the applicant.<\/p>\n 2.\u00a0\u00a0Second set of custody proceedings<\/em><\/p>\n 8.\u00a0\u00a0On 18 March 2011 the applicant lodged an application with the R\u00e2mnicu V\u00e2lcea District Court for sole custody of the child.<\/p>\n 9.\u00a0\u00a0On 28 April 2011 the District Court rejected the application, without examining it on the merits, on the grounds that the situation of the parties concerned could not have changed in the short time since the decision of 21\u00a0April\u00a02011 (see paragraph 7 above).<\/p>\n 10.\u00a0\u00a0On 15 June 2011 R. established his and his child\u2019s permanent residence in Germany, where they were still living as at the date of the latest information available to the Court (22 January 2018).<\/p>\n 11.\u00a0\u00a0The applicant appealed against the decision of 28 April 2011, and on 14\u00a0September\u00a02012 the V\u00e2lcea County Court remitted the case to the R\u00e2mnicu V\u00e2lcea District Court for retrial. An appeal on points of law lodged by R. was dismissed in a final decision of 10 June 2013 by the Pite\u015fti Court of Appeal. Regarding the question of jurisdiction, which was raised by R., the courts noted that as the child\u2019s residence had been moved to Germany only after the applicant\u2019s action had been lodged, the Romanian courts retained jurisdiction to examine the matter.<\/p>\n 12.\u00a0\u00a0On 20 November 2014 the R\u00e2mnicu V\u00e2lcea District Court ordered shared parental responsibility and ruled that the child\u2019s permanent residence should remain that of her father. The applicant was granted visiting rights, to be exercised both in the child\u2019s hometown in Germany and in Romania. The court based its decision on the evidence, which included witness statements and reports submitted by the legal authorities in both parents\u2019 residence towns. The child, who was heard by the court via Voice Over Internet Protocol, refused any contact with her mother, and was found to harbour feelings of fear and uncertainty as a result of her parents\u2019 extensive litigation in respect of her. The court considered that those feelings might have been caused, at first, by the father, who had opposed any contact between the applicant and the child and who had made no effort to preserve the child\u2019s contact with her mother\u2019s family. The court considered that, despite the father\u2019s negative influence, it was in the child\u2019s interests to remain with him, as he had raised her since her birth and had proved himself capable of taking care of his daughter.<\/p>\n 13.\u00a0\u00a0Following appeals by the applicant, that decision was upheld by the V\u00e2lcea County Court (on 3 July 2015) and the Pite\u0219ti Court of Appeal (by a final decision of 10 March 2016). Having regard to the material in the case file, those courts considered that it was in the child\u2019s best interests to remain with the father but to have regular contact with her mother.<\/p>\n 14.\u00a0\u00a0Throughout the proceedings, the courts sat regularly, at monthly intervals (apart from during the courts\u2019 summer holiday periods), but the hearings had to be postponed on several occasions. Those delays were caused by the need to ascertain whether R. had indeed moved with the child to Germany, as the applicant had contested the truth of that information. R.\u2019s lawyers failed on several occasions to submit the evidence requested by the courts in that respect. On several occasions the hearings were postponed because either R. or the applicant needed time to prepare their respective evidence or to familiarise themselves with the content of each other\u2019s submissions. On a few occasions, the judges requested to be permitted to withdraw from the case as they had already given rulings in respect of earlier proceedings between the parties. The applicant also asked judges to withdraw for various reasons.<\/p>\n 3.\u00a0\u00a0Requests for interim measures<\/em><\/p>\n 15.\u00a0\u00a0During the second set of custody proceedings (see paragraphs\u00a08-14 above), the applicant lodged several requests for interim measures concerning the scope of her contact rights and the child\u2019s residence during the proceedings. She was also joined as a party to the proceedings by the V\u00e2lcea Directorate for Social Welfare and Child Protection (Direc\u021bia de Asisten\u021b\u0103 Social\u0103 \u0219i Protec\u021bia Copilului V\u00e2lcea \u2013 hereinafter \u201cthe Romanian Child-Protection Authority\u201d), which requested counselling for the parties concerned.<\/p>\n 16.\u00a0\u00a0On 30 September 2011 the R\u00e2mnicu V\u00e2lcea District Court allowed the applicant\u2019s interim request and established a new, slightly extended visiting schedule in her favour. The court also allowed a request lodged by the Romanian Child-Protection Authority and ordered R. to take the child twice a month to the authority\u2019s headquarters in order to enable her to see her mother (in the presence of a child psychologist).<\/p>\n 4.\u00a0\u00a0The applicant\u2019s attempts to see the child<\/em><\/p>\n (a)\u00a0\u00a0The Romanian Child-Protection Authority<\/strong><\/p>\n 17.\u00a0\u00a0The Romanian Child-Protection Authority became involved in 2005, when R. asked the authority to evaluate his child, who at that time was living with him and the child\u2019s paternal grandparents (see paragraph\u00a04 above).<\/p>\n 18.\u00a0\u00a0Between March and November 2010 (while the courts were examining the appeals lodged against the first custody decision \u2013 see paragraph\u00a06 above), both parents contacted the Romanian Child-Protection Authority \u2013 the applicant to seek help in maintaining contact with her child, and R. to complain about abuse allegedly committed by the applicant against their daughter. The Romanian Child-Protection Authority instituted a mediation process between the two parents, but to no avail.<\/p>\n 19.\u00a0\u00a0On 22 December 2010 the Romanian Child-Protection Authority visited R\u2019s home. A report by the authority on that visit dated 10\u00a0January\u00a02011 stated that police intervention had been necessary in order to enable that meeting. The report also noted that the child had refused to see the applicant.<\/p>\n 20.\u00a0\u00a0The authority continued to accompany the applicant in her efforts to see the child, until R. left the country with her (see paragraph 10 above).<\/p>\n (b)\u00a0\u00a0Bailiffs office<\/strong><\/p>\n 21.\u00a0\u00a0On 27 July 2011 the applicant lodged a request with the bailiffs office for the enforcement of the decision of 21 April 2011 (see paragraph\u00a07 above). A bailiff visited R.\u2019s home, together with the applicant and police officers, but did not find anyone at home. The bailiff ceased his efforts on 28\u00a0November\u00a02011, following the adoption of the decision of 30\u00a0September\u00a02011 changing the contact schedule (see paragraph 16 above).<\/p>\n 22.\u00a0\u00a0On 21 December 2011 the applicant lodged an application with the bailiff\u2019s office seeking the enforcement of the interim decision of 30\u00a0September\u00a02011 (see paragraph 16 above). On 14\u00a0February\u00a02012 R.\u00a0lodged an objection (contesta\u021bie la executare) against the measures being undertaken by the bailiff. He argued mainly that as he had moved to Germany with his daughter, it was impossible for the bailiff to enforce the decision. On 24 May 2012 the R\u00e2mnicu V\u00e2lcea District Court dismissed the objection.<\/p>\n 23.\u00a0\u00a0It appears that all efforts to enable the applicant (with the help of the bailiff) to meet her child failed.<\/p>\n (c)\u00a0\u00a0Criminal complaints<\/strong><\/p>\n 24.\u00a0\u00a0After each failed attempt to see her child, the applicant lodged a criminal complaint against R., accusing him of refusing to comply with a court order. Fourteen such complaints, lodged between 20\u00a0February\u00a02011 and 21 January 2012, were examined by the V\u00e2lcea County Police Department.<\/p>\n 25.\u00a0\u00a0The prosecutor\u2019s office attached to the V\u00e2lcea District Court dismissed the complaints, either because both parents had agreed to respect the contact schedule (under a decision of 8 September 2010) or because R.\u2019s actions were not considered sufficiently serious as to engage his criminal responsibility (under a decision of 30 October 2012, by which R. was given an administrative fine of 1,000 Romanian Lei (RON)).<\/p>\n (d)\u00a0\u00a0Ministry of Justice<\/strong><\/p>\n 26.\u00a0\u00a0On 16 July 2012 the applicant contacted the Ministry of Justice, complaining that R. had removed the child from the country and seeking her return under the provisions of the 25 October 1980 Hague Convention on the Civil Aspects of International Child Abduction (\u201cthe Hague Convention\u201d). On 19 July 2012 the Romanian Ministry of Justice advised the applicant of the possibility to initiate enforcement proceedings in Germany in respect of the custody orders.<\/p>\n 27.\u00a0\u00a0On 1 October 2012, the Ministry of Justice informed the applicant that, according to the documents submitted, the child had been removed from Romania at a time when R. had had exclusive custody and that at that time (that is to say as at 1 October 2012) the child resided permanently in Germany. Accordingly, the Ministry warned the applicant that her request that the child be returned to Romania was unfounded under the Hague Convention. The applicant did not pursue the Hague proceedings.<\/p>\n 28.\u00a0\u00a0On 12 December 2016 the applicant informed the Court that she had just started proceedings in Germany seeking enforcement of the decision of 20\u00a0November\u00a02014 (see paragraph 12 above).<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 29.\u00a0\u00a0The relevant provisions of the Code of Civil Procedure concerning the procedure for the enforcement of court orders concerning minors is set out in Ni\u0163\u0103 v. Romania ([Committee], no. 30305\/16<\/a>, \u00a7\u00a7 27-30, 3\u00a0July\u00a02018).<\/p>\n