FOURTH SECTION
\nCASE OF R.I. AND OTHERS v. ROMANIA
\n(Application no. 57077\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n4 December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of R.I. and Others v. Romania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Paulo Pinto de Albuquerque, President, Having deliberated in private on 13 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 57077\/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 23\u00a0September2016 by Ms R.I., who is also acting on behalf of her two children, M.I. and I.I. (\u201cthe applicants\u201d). They are all Romanian nationals. The Court decided of its own motion to grant the applicants anonymity pursuant to Rule 47 \u00a7 4 of the Rules of Court.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Ms D. Hatneanu, a lawyer practising in Bucharest. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.<\/p>\n 3.\u00a0\u00a0On 24 February 2017 the Government were given notice of the application.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n A.\u00a0\u00a0Background of the case<\/strong><\/p>\n 4.\u00a0\u00a0The first applicant, Ms R.I.,was born in 1975 and lives in Bucharest. She was in a stable relationship with R.She had two children with him: the second applicant, M.I., born in 2006, and the third applicant, I.I.,born in 2009. In 2010, the relationship broke down and R. moved out of the family home. The parents agreed that the children would remain with the first applicant, in their family home. The parents also decided that R. would have unrestricted access to the children and would play an active role in their education.<\/p>\n 5.\u00a0\u00a0On 28 October 2013 the children and their maternal grandmother were involved in a traffic accident,as a result of whichonly the grandmother needed medical care and attention. In November R.took the children from the first applicant\u2019s home without her consent. According to the first applicant, from that time until May2014, she managed to see the children only occasionally and always in their father\u2019s presence. After 5\u00a0May2014 (see paragraph 9 below) contact between them became even more scarce, and after 6 June 2014 (see paragraph 11 below) all contact stopped.<\/p>\n 6.\u00a0\u00a0On 25 November 2013, the first applicant instituted custody proceedings against R. before the Bucharest District Court (see paragraph\u00a026 below). At the same time she applied for an interim injunction (ordonan\u0163\u0103 pre\u015feden\u0163ial\u0103), seeking to have the children\u2019s residence set at her place during the custody proceedings (see paragraph 9 below).<\/p>\n 7.\u00a0\u00a0On 20 December 2013 the first applicant also brought the situation of the second and third applicants to the attention of the Bucharest Directorate General for Social Welfare and Child Protection (\u201cthe Bucharest child protection authority\u201d). She feared that they were showing signs of emotional abuse caused by their father.<\/p>\n 8.\u00a0\u00a0In two official reports of 21 January and 5 February 2014, the Bucharest child protection authority observed that the children were well taken care of, were enjoying optimal conditions at their father\u2019s home, and manifested affection towards their father and his new partner. The reports concluded that no signs of abuse had been identified. The experts noted, however, that the children experienced a considerable degree of anxiety and distress because of the conflicts between their biological parents. They recommended counselling.<\/p>\n B.\u00a0\u00a0Enforcement of the interim injunction of 5 May 2014<\/strong><\/p>\n 9.\u00a0\u00a0Deciding in the interim proceedings (see paragraph 6 above), in a final decision of 5 May 2014 the Bucharest County Court ordered that the children shouldreside with their mother and that R.should pay monthly child support of 1,000 euros (EUR) for each child until the end of the custody proceedings.<\/p>\n 10.\u00a0\u00a0On 4 June 2014 the first applicant applied to the bailiff\u2019s office for enforcement of the decision of 5 May 2014.Her request was approved by the bailiff on 6 June 2014 and by the Bucharest District Court on 16\u00a0June2014.<\/p>\n 11.\u00a0\u00a0On 6 June 2014 the first applicant went to the children\u2019s school to pick them up and take them home. R. showed up as well and became abusive towards the first applicant. The police had to intervene. The first applicant was unable to take the children home. Advised by the school administration, she returned on 9 June to pick them up, but on that day the children were absent.<\/p>\n 12.\u00a0\u00a0On 13 June 2014 the first applicant wrote to the Bucharest child protection authority to ask for help, but the authority could not intervene as the father was not found at home.<\/p>\n 13.\u00a0\u00a0In a letter of 26 June 2014 the bailiff asked R. to comply with the court order and to return the children to their mother within ten days. As he failed to comply, the bailiff summoned him to bring the children on 17\u00a0July2014 to the bailiff\u2019s office, where the first applicant, two police officers and representatives of the Bucharest child protection authority would be present. R.and the children did not attend.<\/p>\n 14.\u00a0\u00a0On 4 August 2014 the first applicant contacted the Bucharest child protection authority again and complained that R.was manipulating the children into fearing and rejecting her, and was forbidding any contact between her and her children. She also informed the authority about the incident of 6 June 2014 (see paragraph 11 above). The authority could not verify her allegations as R.was not at home and did not contact the authority, despite being invited to do so.<\/p>\n 15.\u00a0\u00a0The bailiff scheduled a second meeting for 14August2014. This time, R.went with the children. As noted by the bailiff in his report drafted on the same day, the children refused in absolute terms to return to their mother. They alleged that she used to shout at them and had occasionally beaten them when they had lived together. The enforcement could not take place.<\/p>\n 16.\u00a0\u00a0Following the meeting of 14 August 2014, on 9 September 2014 the Bucharest child protection authority asked the Bucharest District Court to order a two-month psychological counselling programme for the children, under the provisions of Article 912 of the Code of Civil Procedure (psychological counselling for children who refuse contact with the estranged parent). The first applicant contacted the child protection authority with a similar request on 16 and 19 September 2014. On 2\u00a0October2014 the District Court allowed the request made by the Bucharest child protection authority.<\/p>\n 17.\u00a0\u00a0Between 7 November 2014 and 2 January 2015, a psychologist met the children and their parents ten times. On 22 January 2015, she drafted a final report,recommending as follows:<\/p>\n \u201cBearing in mind the numerous relationship problems identified, I consider it opportune to recommend an immediate[1] clinical psychological evaluation of the children and the parents, of the current relations between them, as well as their continued psychological counselling.\u201d<\/p>\n 18.\u00a0\u00a0On 28 January 2015 the first applicant contacted the Bucharest child protection authority again and explained that the behaviour exhibited by the children during their recent encounter made her fear that they were suffering from parent alienation syndrome because of their father\u2019s influence over them.<\/p>\n 19.\u00a0\u00a0Acting upon the first applicant\u2019s request, a social assistant from the Bucharest child protection authority interviewed the children. On 17\u00a0February 2015 he drafted his report, finding that the children refused to see their mother because allegedly she used to beat them and be mean to them. The social assistant asked the father to take the children for a psychological evaluation. He also sent his report to the Bucharest child protection authority\u2019s service for violence against children.<\/p>\n 20.\u00a0\u00a0On 14 May 2015 the Bucharest child protection authority drafted a two-month plan for the rehabilitation of the two children \u201cwith the aim of ensuring their harmonious physical and psychological development and protecting their dignity and their best interests\u201d. The plan required cooperation between the social assistant responsible for their case, a psychologist, the school administration and the two parents.<\/p>\n 21.\u00a0\u00a0On 30 June 2015 R. complained to the Bucharest child protection authority that the psychologist had put pressure on the children and induced a state of stress which had required the children\u2019s hospitalisation after one of their meetings. He demanded to know on what grounds the children continued to be subjected to psychological counselling.<\/p>\n 22.\u00a0\u00a0Acting upon an application made by the first applicant (asigurarea probelor), on 7 July 2015 the Bucharest District Court requested a psychological evaluation of the children and their parents. After meeting with them on several occasions between 13 August and 30\u00a0October 2015, the psychologist rendered a report on 17 November 2015. She found that there was no indication of physical abuse from the mother but that there was an indication of psychological abuse in the form of parental alienation exercised by the father. The relevant parts of the report read as follows:<\/p>\n \u201c(1)\u00a0\u00a0During the expert evaluation there was no relevant information from the children that would confirm the existence of physical abuse by their mother. The evaluation only highlighted the children\u2019s and their father\u2019s statements as well as the resistance of both children in relation to their mother.<\/p>\n (2)\u00a0\u00a0Because they are involved in the parental conflict, the children exhibit emotional and behavioural indicators frequently associated …with psychological abuse. …<\/p>\n (3)\u00a0\u00a0There are … several symptoms of parent alienation syndrome, in particular in respect of [the second applicant]. …<\/p>\n In particular concerning underage children, the father\u2019s behaviour corresponds to the profile of the \u2018alienator parent\u2019 who behaves in this manner out of a genuine conviction that he can protect and care for the children better than their mother. His behaviour may also be connected to a profound aversion to, and hostility towards, the children\u2019s mother, which has more to do with the relations between the adults than with their parenting abilities.<\/p>\n According to the specialised literature, the alienated parent also plays a role in losing his or her ties with the child. It appears from the information offered during the interview by Mrs [R.I.] that she has experienced occasional doubts and insecurities concerning her maternal role which might have undermined her relationship of secure attachment with her children in their early childhood.<\/p>\n Recommendations<\/p>\n 1.\u00a0\u00a0It is recommended that the parents undertake psychological counselling, in order to receive assistance in finding methods of cooperation for the present and future well-being of their children. …<\/p>\n Parents must be aware that parental alienation has negative consequences for the children\u2019s development; without specialised intervention and the conscious participation of both parents, children can develop emotional or behavioural problems.<\/p>\n 2.\u00a0\u00a0It is recommended that the two children be no longer involved in the conflict between the parents. Their exposure to the parental conflicts has had a traumatising effect on them and left painful marks in their emotional development.\u201d<\/p>\n 23.\u00a0\u00a0On 23 November 2015, the first applicant asked the bailiff to resume the enforcement proceedings.New meetings were convened for 7\u00a0and\u00a023\u00a0March 2016 in the bailiff\u2019s office. R.and the children did not appear.<\/p>\n 24.\u00a0\u00a0On 18 December 2015 the first applicant contacted the Bucharest child protection authority again and reiterated her fears that the children\u2019s father was alienating the children from her.<\/p>\n 25.\u00a0\u00a0R. contested the enforcement proceedings, but on 9\u00a0November2016 the Bucharest District Court dismissed his complaint. An appeal lodged by him was also dismissed in a final decision of the Bucharest County Court on 18\u00a0September 2017.<\/p>\n C.\u00a0\u00a0Enforcement of the custody order of 24 September 2014<\/strong><\/p>\n 26.\u00a0\u00a0On 24 September 2014 the Bucharest District Court decided on the application for custody (see paragraph 6 above). It granted the mother physical custody of the children and ordered R. to pay child support of 5,000\u00a0Romanian lei (RON \u2013 approximately EUR 1,100 at the relevant time) per month until the children reached the age of majority. R. appealed, but on 18 January 2016 he informed the Bucharest County Court that he did not wish to maintain his appeal. The first applicant appealed on points of law, arguing that the County Court had unlawfully reduced the award for costs.In a final decision of 2 June 2016 the Bucharest Court of Appeal rejected her appeal as inadmissible.<\/p>\n 27.\u00a0\u00a0On 27 July 2016 the first applicant applied for enforcement of the decision of 24 September 2014 on the payment of child support and legal costs. On 19 August 2016 the first applicant asked the bailiff to extend the enforcement order to the return of the children.Her request was granted by the bailiff\u2019s office on 8 September 2016 and by the Constan\u0163a District Court on 20 September 2016.<\/p>\n 28.\u00a0\u00a0In March 2017 R. informed the authorities that he had moved with the children to N\u0103vodari, Constan\u0163a County, where they would be spending weekends and school holidays. The Constan\u0163a Directorate General for Social Welfare and Child Protection (\u201cthe Constan\u0163a child protection authority\u201d) visited R. and the children in the new location and kept in touch with the Bucharest child protection authority. R. informed the Constan\u0163a child protection authority that he was willing to pursue counselling for his children in N\u0103vodari and reiterated that he had not prohibited the first applicant from seeing the children.<\/p>\n 29.\u00a0\u00a0On 7 March 2017, the Constanta District Court partially allowed R.\u2019s opposition to the enforcement, finding that he had complied in full with the obligation to provide for the children since they lived with him and that he could not be asked, in addition, to pay child support in their favour.<\/p>\n 30.\u00a0\u00a0In August 2017 the first applicant reinitiated the enforcement proceedings in respect of the return of the children, but on 12\u00a0September2017 R.appealed against the enforcement order. On 19\u00a0September 2017 R. sought a stay of the enforcement, pending the outcome of his appeal; his request was granted by the Constan\u0163a District Court on 25September 2017. On 8 May 2018 his appeal was dismissed by a final decision rendered by the Constan\u0163a County Court and the decision was notified to the first applicant on 31 May 2018.<\/p>\n 31.\u00a0\u00a0On 18 July 2018 the applicants\u2019 representative informed the Court that on 16 July 2018 the applicants and R.had met in the bailiff\u2019s office. The children had refused in absolute terms to move in with their mother.<\/p>\n D.\u00a0\u00a0Criminal investigations<\/strong><\/p>\n 32.\u00a0\u00a0Meanwhile, the first applicant had lodged a criminal complaint against R., accusing him of disobeying the court order concerning the custody arrangements. On 17June 2014 the police started investigating the case under the supervision of the prosecutor\u2019s office attached to the Bucharest District Court.<\/p>\n 33.\u00a0\u00a0On 16 August 2016 the first applicant asked the prosecutor to extend the investigation to also cover allegations of ill-treatment of minors, arguing that R.was subjecting the children to psychological abuse. In a decision of 28\u00a0June2016 the prosecutor\u2019s office refused her request on the grounds that no evidence of ill-treatment had been found. On 10 October 2016 an objection lodged by the first applicant was dismissed by the prosecutor\u2011in\u2011chief and on 13 October 2016 the Bucharest District Court\u2019s preliminary chamber rejected as inadmissible a complaint lodged by the first applicant against the prosecutor\u2019s decisions.<\/p>\n E.\u00a0\u00a0Attempts to change the custody arrangements<\/strong><\/p>\n 34.\u00a0\u00a0On 17 August 2016 R.had applied for physical custody of the children. On 20 March 2017 the Bucharest District Court decided that the children should live with their father. It based its judgment on the fact that the children had been living with him for the past three years and that he represented the only parental figure in their life. A sudden change in their life would cause them more distress. Based on the conclusions of the expert report of 17 November 2015 (see paragraph 22 above), the court noted that the children felt uncomfortable in their mother\u2019s presence and refused to move in with her, preferring their father\u2019s presence. The court also noted that the first applicant had never been prevented from visiting them, but had chosen not to and had instead demanded that the children be returned to Bucharest. The court further observed that the first applicant had not sought enforcement of the custody order, limiting her request to the enforcement of the child-support allowance and costs. It concluded that it would be in the children\u2019s best interests to remain with their father. It advised the parents to put an end to their conflict for their children\u2019s sake and to allow the mother\u2011children relationship to be rebuilt.<\/p>\n 35.\u00a0\u00a0The first applicant became aware of the content of that decision on receiving the Government\u2019s observations in the case (sent to her by the Registry of the Court on 28 July 2017). At her request, she was notified of the decision on 1 September 2017. On 7September 2017 she lodged an appeal against it.<\/p>\n 36.\u00a0\u00a0In a final decision of 24 April 2018 the Bucharest County Court allowed the appeal, quashed the previous decision and dismissed R.\u2019s request to be granted physical custody of the children. It found as follows:<\/p>\n \u201c… the [first applicant] is not at fault in the non-enforcement of decision no.\u00a0590A\/5\u00a0May\u00a02014, in so far as the Romanian State had a positive obligation to urgently take all necessary legal measures in order to protect the [first applicant]\u2019s right to family life, by immediately returning the children to their mother\u2019s home, in order to avoid the parental alienation exhibited by the children towards the [first applicant].<\/p>\n Therefore, by penalising [the first applicant] with losing the possibility of having her children live with her, for circumstances for which she is not responsible, … would affect the substance of her right of access to a court and [the right] to respect for her family life. …<\/p>\n The court notes that the first-instance court\u2019s decision to set the children\u2019s home with their father on the grounds that they were attached to him by strong affection and that they refused to communicate with [the first applicant], is the direct consequence of the non-enforcement of decision no. 590A\/5 May 2014. [R.] had a real possibility to influence the children to see their mother as a stranger, as a danger to the father\u2011children family relationship, and as a danger to their health. …<\/p>\n The break of the family ties between the mother and her children will without any doubt become permanent if the children are to live with their father, and therefore any visiting programme for the mother and the children will be illusory and formal in so far as the mother was unable to obtain the enforcement of a final decision for more than four years and as during that time she practically could not even speak with the children.\u201d<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 37.\u00a0\u00a0For the relevant provisions of the Code of Civil Procedure in force at the time of the facts,see Ni\u0163\u0103 v. Romania ([Committee], no.\u00a030305\/16<\/a>, \u00a7\u00a7\u00a027-30, 3 July 2018).<\/p>\n
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n