CASE OF FERRARI v. ROMANIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
4. The applicant was born in 1971 and lives in Buenos Aires. He is a military pilot. 5. On 11 August 2005 his child was born of his marriage with M.T.R. who holds both Romanian and Argentinean nationality. At the date of the facts, the family’s permanent residence was in Argentina, but they travelled due to the applicant’s various work assignments. 6. In September 2006 the applicant was sent to a UN mission in Cyprus where his family joined him shortly after. While in Cyprus, the family travelled to Spain to visit the applicant’s sister. In order to facilitate the travelling, the applicant and his wife signed an authorisation form allowing each one of them to travel abroad with the child. 7. After having lived together for seven months in Cyprus, the applicant and M.T.R. decided together that M.T.R. would take their child to Romania for a few months, and would join the applicant in Buenos Aires in October, at the end of his contract in Cyprus. The parents agreed that M.T.R. and the child would return to Argentina before 15 October 2007, the date at which the child’s passport would expire. 8. M.T.R. was unable to make travel arrangements on time, as the applicant had been late in sending money for the tickets, and eventually the child’s passport expired. M.T.R. sought the applicant’s consent to request a Romanian passport for the child, but the applicant refused. 9. On 14 November 2007 M.T.R. informed the applicant that she would not return with the child to Argentina. Later on, on 3 February 2008 she filed for divorce and custody of the child before the Romanian courts. 10. On 16 November 2007 the applicant withdrew the authorisation that he had given to the wife to travel with the child. On 4 December 2007 he also lodged a request for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), with the Argentinean Ministry of Foreign Relations, the Central Authority for the purpose of the Hague Convention. 11. On 4 January 2008 the notification made by the applicant was received by the Romanian Ministry of Justice, the Central Authority for the purpose of the Hague Convention (“the Ministry”). At the Ministry’s request, the police visited M.T.R.’s home and inquired about their situation. She provided copies of their identity papers and of the authorisation form allowing her to travel with the child. 12. On 12 February 2008 the Romanian Central Authority tried unsuccessfully to engage the mother in negotiations concerning the return of the child to Argentina. On 30 March 2008 they lodged before the Bucharest County Court an application under the Hague Convention for the return of the child. 13. Five hearings took place in the case. At the first hearing M.T.R. filed a response to the applicant’s motion; a postponement was granted at the Ministry’s request. At the second hearing M.T.R. learned, allegedly for the first time, that the authorisation to travel had been withdrawn by her husband. This hearing as well as the next one were postponed at M.T.R.’s request. At the next hearing M.T.R. asked that the applicant’s request be dismissed; she claimed that he was sexually deviant and stated that she feared for her child’s safety should he be returned to his father. The applicant did not appear in court. 14. On 8 July 2008 the County Court granted the applicant’s request and ordered M.T.R. to return the child to the habitual residence in Buenos Aires within two weeks from the date of its decision. It noted that while the applicant had given his consent to the travel to Romania, his wife retained the child in Romania against the applicant’s will contrary to what had been initially agreed upon. It also observed that the parents maintained joint custody of the child, as they had been legally married at the date of the wrongful retention. It further noted that on 16 April 2008 the Huşi District Court had granted the couple’s divorce but had not decided on the custody of the child (see paragraph 21 below). It dismissed as unfounded the mother’s allegations that the applicant was not taking active part in the child’s upbringing and that his presence constituted a major risk for “the child’s physical, psychical, emotional and affective development”. The decision was final and enforceable within two weeks. 15. On 12 August 2008 M.T.R. appealed in cassation. The case was heard on 27 November 2008 by the Bucharest Court of Appeal. In a final decision of 4 December 2008 the court upheld the County Court’s decision. 16. On 22 December 2008 the Ministry requested the assistance of a bailiff for the enforcement of the final decision. On 8 January 2009 the bailiff informed M.T.R. of the obligation to comply with the court order. The next day M.T.R. lodged an application for a stay of execution which was dismissed by the Bucharest County Court on 25 March 2009. A new enforcement attempt took place on 2 April 2009 when M.T.R. informed the bailiff that she refused to comply with the return order. She explained that the applicant could keep contact with the child through internet and webcam, that she kept him updated with the developments of the child and that he did not support the child financially. On that day the bailiff decided to postpone the enforcement proceedings. 17. At the same time, M.T.R. requested the annulment of the final decision of 4 December 2008 (contestaţie în anulare) which she considered to be “unfounded and unlawful” (netemeinică şi nelegală). On 23 February 2009 the Bucharest Court of Appeal granted her request, quashed the return order and sent the case back for re-examination of the appeal on points of law. The Court of Appeal retried the appeal and in a final decision of 4 May 2009 dismissed the initial request for the return of the child. The court considered that the child’s arrival to Romania was not unlawful as both parents had consented to the trip. It also found that the child was already integrated in his new environment. It considered that it would not be in the child’s best interest to return to Argentina, because the applicant travelled often due to his job as a military pilot and consequently could not take proper care of the child: “The social workers’ reports in the case and the child’s psychological evaluation show that the child is harmoniously developed – affectively, emotionally and intellectually -, is affectively attached to his mother and maternal grandmother, and is integrated in the environment in which he lives since his arrival in Romania. His return to Argentina is perceived by the court as not corresponding to his superior interest in so far as, notably, his father being a military pilot, is selected for missions within the United Nations, which makes it impossible for him to be preoccupied with raising, caring for and educating the child; in addition frequent travel by the child with his father in these missions is unfavourable to the child’s harmonious development.” 18. On 15 May 2009 the Ministry informed the Argentinean Central Authority of the outcome of the proceedings and advised the applicant to request a right of access under the Hague Convention. The Argentinean Central Authority sent the decision to the applicant and expressed their disagreement with the court’s reasoning. They argued mainly that the protractions leading to the child becoming integrated in his new environment, in Romania, were not imputable to the applicant, but to the Romanian authorities themselves. Moreover, they claimed that the Romanian courts were wrong in considering that because of his profession the applicant could not take care of the child; in any event, such consideration should have been examined and decided by the courts ruling on the custody of the child. 19. The Ministry kept close contact with the Argentinean Central Authority throughout the proceedings, informing them of the progress of the case and seeking information requested by the courts about the applicant. 20. On 3 February 2008 M.T.R. filed for divorce and custody of the child. On 27 February 2008 the Ministry informed the applicant of those proceedings. 21. On 16 April 2008 the Husi District Court granted the divorce but decided not to rule on the custody matters before the end of the Hague proceedings which were pending at that time. The applicant did not appeal and the decision became thus final. 22. On 26 September 2011 the Bucharest District Court granted M.T.R. custody of the child and awarded the applicant visiting rights. The parties appealed; the applicant contested the alimony set by the court. The decision became final with certain amendments on 6 December 2012 when the Court of Appeal dismissed the appeals on points of law lodged by the two parents. 23. In the latter part of 2009 the applicant travelled for the first time to Romania since the beginning of the conflictual situation. He stayed with M.T.R. and his child in M.T.R.’s apartment in Husi for a month. 24. In 2010 the applicant travelled to Romania on two occasions, once accompanied by the child’s paternal grandmother. The child was able to spend time with his father and shared his hotel room for one night.