DORCA v. ROMANIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Lucian Dorca, is a Romanian national born in 1979 and living in Sibiu. He was represented before the Court by Ms M.M. Țuca, a lawyer practising in Sibiu. 2. 3. On an unspecified date the applicant, who was assisted by a legal representative of his own choosing, brought divorce and custody proceedings against his wife seeking, inter alia, to be granted joint custody of their two-year-old daughter. 4. On 21 November 2011 the Sibiu District Court dismissed the applicant’s action in part, on the basis of testimonial evidence and social inquiry reports, including the report of an inquiry conducted by the Spanish authorities at the child’s mother’s home. The mother was granted sole custody, on the grounds that the child had been born in Spain and had lived there since birth. Furthermore, her mother was in permanent employment there. Given the child’s young age, her hygiene, dietary and medical needs required particular attention, and she could suddenly develop the symptoms of a very serious medical condition. In the circumstances, it would be imperative for the parent to recognise such symptoms and the immediate steps that needed to be taken. It was uncontested by the parties that the child had been left in her mother’s care and that the mother had attended very closely to her needs. According to the testimonial evidence available, the mother was a good cook and was very careful about her health. In addition, separating the child from her current environment, in which she was integrated and which promoted her normal development, was not recommended considering the constant need to maintain her well-being. While it was true that the applicant had optimal living conditions for raising his daughter, these were insufficient given her young age and the particular attention that she required. Consequently, taking into account both moral and material criteria, it was considered that the mother was better placed to raise and educate the child. She had health problems and had been repeatedly hospitalised and kept under medical supervision for bronchitis while in her mother’s care. In addition, she was enrolled in a Spanish preschool, according to whom there was a strong emotional bond between the child and her mother, who attended school meetings and activities, had a good relationship with preschool staff and ensured that her daughter was clean and ate correctly. 5. The applicant appealed against the judgment and argued that the court’s belief that he was unable to raise and educate the child in the same way as his wife amounted to discriminatory treatment. In addition, there was no evidence to suggest that under the relevant provisions of the Romanian Civil Code custody of a child could not be assigned to both parents. Moreover, under the relevant domestic and international legislation, parental authority could not be divided and had to be exercised jointly by both parents. The alleged criminal offences he had been accused of by his wife had simply been allegations, which was clear from the fact that he had no criminal record. Furthermore, his daughter did not have any serious health problems or problems that were unusual for a child of her age. 6. On 2 November 2012 the Sibiu County Court dismissed the applicant’s appeal. It held that the social inquiry report produced by the Spanish authorities confirmed that the mother was able to raise and educate the child in a stable way. In addition, the mother had taken good care of the child, who had health problems and had been repeatedly hospitalised and kept under medical supervision for bronchitis. The child was enrolled and had integrated well in the Spanish schooling system, and her mother had a good relationship with the teachers and was in permanent employment in Spain. In determining who would have custody of the child, the court could not ignore the fact that the applicant had taken his daughter out of Spain without her mother’s consent. Subsequently, the mother had brought criminal proceedings against the applicant for child abduction. Although she withdrew her criminal complaint and the applicant was never convicted, it was uncontested that he had left the marital home in Spain together with his young daughter without his wife’s consent. Consequently, there was a risk that the applicant could repeat his actions if he was awarded joint custody of his daughter. The court could not wait for that risk to occur and considered that it was in the best interests of the child, taking into account her age and health, to enjoy the stability afforded by the mother. The social inquiry report produced by the Spanish authorities contained a recommendation for specialist professionals to monitor the relationship between the applicant and his daughter on account of his prior actions. The best interests of the child were at the heart of the domestic and international legislation referred to by the applicant. Consequently, given his previous behaviour, the decision of the first-instance court to grant sole custody of the child to the mother had been justified. 7. The applicant lodged an appeal on points of law (recurs). He argued that under the relevant domestic and international legislation, joint custody of children served the best interests of the child and was the rule even if parents were divorced. In addition, the consent of the other parent was presumed when parents enjoyed joint custody. Moreover, the first and second-instance courts had wrongfully assessed the evidence put before them and there was nothing to suggest that if he had been granted joint custody of his daughter, he would have attempted to abduct her. Furthermore, the Spanish authorities had cleared him of any charges and their recommendation relied on by the second-instance court would only have been of relevance had he committed an offence. Lastly, there was no evidence to suggest that he had endangered his daughter’s physical and moral development, and there were therefore no well-founded reasons for the courts to award the mother sole custody of their daughter. 8. By a final judgment of 12 March 2013, the Alba-Iulia Court of Appeal dismissed the applicant’s appeal on points of law. It held that under the relevant domestic legislation, parents enjoyed joint custody of children even after divorce, because it was presumed that such a situation served the best interests of the child. However, the same domestic legislation allowed for a departure from that rule, if there were well-grounded reasons to suggest that the best interests of the child would be better served if custody was awarded to only one of the parents. In the instant case, without denying the applicant’s attachment to his daughter, it was relevant that the child’s parents lived in different countries. That would make it difficult for the applicant to enjoy his right to joint custody effectively. Moreover, there was a risk that in certain situations, the absence of the parents’ agreement or a delay in the applicant’s consent might have a negative impact on the child’s development, given that she was so young. A systemic approach to the dynamics of the parties’ interactions should show a relationship that would facilitate the exercise of joint custody. In the absence of such interactions, joint custody of the child may be a source of continuous conflict that would be incompatible with the best interests of the child. In the parties’ case, there was clear proof of an unstable and inharmonious relationship and of serious disagreements concerning the child’s situation. In this context, it was relevant that the applicant, in the absence of a clear agreement with his wife, had travelled with the child to Romania and that in the past few years the parties had been involved in numerous sets of court proceedings. The court therefore considered that there were well-grounded reasons to award sole custody of the child to the mother, and that such a measure would be in the better interests of the child. 9. Articles 397 and 398 of the Romanian Civil Code provide that after divorce, parents are to exercise joint parental authority over their children unless the court decides otherwise. If there are well-grounded reasons, taking the best interests of the child into account, the court may decide for parental authority to be exercised by only one of the parents. The remaining parent reserves his or her right to monitor the way the child is raised and educated, and his or her right to consent to the child’s adoption.