CASE OF DIMOVA AND PEEVA v. BULGARIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
5. The first applicant divorced the second applicant’s father on 22 December 2008 by means of a court-approved divorce agreement. According to the agreement, she was to exercise parental rights and the father had contact rights, the use of the family dwelling and was obliged to pay approximately 50 euros (EUR) a month in child support. The child was to live with her mother, and her father could see her on the first and third weekend of every month, for thirty days during the summer, and for a week during the winter or spring. The agreement did not make reference to a specific address, or even a town or a city where the first applicant was supposed to live with the child. 6. On 25 November 2009, upon a request by the child’s father for a change in the contact regime between him and his daughter, the first instance civil court approved another agreement between the parents, which extended the duration of the father’s weekend contact by a few hours. The parents also agreed that the father would collect the child from her mother’s home in Kazanlak, Bulgaria, and would take her back to the same location; the father could spend his time with the child at one of two specific addresses in Bulgaria, located in Koprivshtitsa and Srednogorovo respectively. If the mother changed her address, she had to inform the father by registered mail within ten days of such a change. 7. On 18 March 2009 the first applicant brought a claim under Article 72 of the 1985 Family Code before the Varna District Court, seeking the court’s authorisation for the child to leave the country in the absence of her father’s agreement. She submitted that she was in a committed relationship with a Bulgarian man who lived in the United Kingdom, where he worked as a ship engineer. They intended to marry and she wished to settle in the United Kingdom, and live with him and her daughter. Notwithstanding the above, the first applicant specified that, in the event that the court did not grant her application for permission for the child to travel, she would remain in Bulgaria to care for her as a responsible parent. 8. On 30 October 2009 the Varna District Court rejected the first applicant’s claim for the child’s unrestricted travel abroad with only her mother, finding that it could not be in the child’s interests. More specifically, the reasons given were that the mother could not show that she had a fixed place of residence abroad, or a secure income with which to ensure her daughter’s well-being, and that the child’s absence from Bulgaria would pose an obstacle to the father’s exercise of his contact rights. 9. The first applicant appealed against the refusal to the Varna Regional Court. She claimed that the father showed no interest in the child and did not pay any child support. His refusal to allow the child to leave the country for any period of time prevented her from taking her on holiday abroad and residing in Montrose in the United Kingdom, where she had a fiancé and could provide her daughter with better material conditions. She and her partner intended to marry that year, but her child’s inability to leave the country with her would make this impossible. 10. The Varna Regional Court allowed her appeal on 22 February 2010. It held that she had the necessary parenting qualities, including the ability to create an emotionally comforting environment for the child and provide her with financial support. That had been decided at the time she had been granted custody of her daughter, and had not been either challenged or refuted subsequently. The first applicant’s parental abilities and the care she provided to her daughter would not change as a result of her crossing the national border. In view of the strained relationship between the two parents, the court considered that permission for the child to travel abroad with only her mother should be granted for the whole of the child’s infancy, that is, until she reached majority. The court also held that the change in the mother’s circumstances constituted grounds for changing the contact regime between father and child, but did not adjudicate on that matter. 11. Following a cassation appeal by the father, in June 2010 the Supreme Court of Cassation suspended enforcement of the second-instance court’s judgment while the issue was pending before it. On 1 November 2010, in a final judgment, it refused to allow the second applicant to travel abroad in the absence of her father’s agreement. 12. The court first observed that there was conflicting domestic jurisprudence on the question of granting unlimited permission for a minor’s travel abroad in the absence of both parents’ agreement. Some courts (including the second instance one in the present case) found that when a parent who had been granted custody (упражняване на родителските права) had the necessary parental skills, such permission could not be refused. Other courts considered that when a parental consensus was missing, granting permission for unlimited travel abroad was only going to cause further disturbance and resentment in the relationship between the parents, which was likely to result in additional disputes between them, and this was not in the interests of the child. 13. Examining the present case, the court relied in particular on its wellestablished and binding case-law, according to which permission for a child’s unrestricted travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interests of the child. More specifically, there was a risk that a parent applying for such permission could take the child to countries which were in a state of war or where there was a high risk of natural disasters, thus endangering the child’s well-being and depriving the State of the opportunity to ensure his or her protection. Also, if the parent took the child to a country which was not a member of the European Union, or with which Bulgaria had no reciprocal agreement regarding legal assistance, the authorities would not be able to ensure that the contact rights of the other parent were enforced. 14. The court held that permission to travel abroad with only one parent could be granted only in respect of fixed destinations and for a limited period of time, and when this was in the interests of the child. 15. Turning to the specific case, the court held that the first applicant had not presented any guarantees as to where the child would be taken or how the father’s contact rights would be exercised. Importantly, the first applicant had not sought in court a change in the regime for contact between the child and the father with a view to her and the child moving their primary place of residence to the United Kingdom. In any event, the first applicant had presented in the proceedings before the court only her personal assertions in respect of her future in the United Kingdom, but no evidence to demonstrate the facts she claimed. She purported that she would get married; however, this was an uncertain future occurrence which did not depend solely on her will. The situation would have been entirely different, if she had been married and had settled in good material conditions in another country. In such a case, the question of whether it would be in the child’s interest to join her mother abroad would be open for discussion. However, as this was not the case, in view of the young age of the child, the court found that it was not in her interest for her mother to be granted permission to take her abroad at any time, for an unlimited duration and to unknown destinations throughout the period before the child reached majority. 16. On 18 December 2011, a little over a year after the final judgment of the Supreme Court of Cassation on the issue of the child’s travel, the first applicant and her partner, who was still living in the UK, married in Bulgaria. Several days earlier, on 1 December 2011, the second applicant’s father had explicitly agreed to her leaving the country with her mother. He signed an initial declaration for the period between 5 January 2012 and 15 June 2012, and has apparently been signing such declarations authorising year-long periods ever since. As a result, the applicants have been able to travel to, live and study in the United Kingdom, where they were at the time of their last correspondence with the Court. 17. Since leaving Bulgaria in January 2012, the child has been in regular contact with her father over the phone and Skype, and has spent time with him every summer.