RĂILEANU v. ROMANIA
Inadmissible
Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Iorgu Răileanu, is a Romanian national, who was born in 1959 and lives in Galaţi. He was represented before the Court by Ms N. A. Daghie, a lawyer practising in Galaţi. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 30 April 2000 the applicant married E.R. On 7 September 2000 their daughter was born. 5. On 11 November 2006 the couple separated and their daughter remained with the mother. The applicant tried to maintain contact with his daughter, but his wife systematically hindered his attempts. 6. On 6 January 2009 the applicant brought proceedings in order to obtain rights of access to his daughter and on 9 June 2009 the Galaţi District Court allowed the request. 7. On 9 December 2009 the District Court’s decision was amended by the Galaţi County Court which established a detailed visiting schedule for the applicant. The county court’s decision became final on 29 April 2010 when the appeals on points of law lodged by the parties were dismissed by the Galaţi Court of Appeal. 8. On 23 November 2010 the couple divorced and the mother was granted custody of the child. The divorce court made no new arrangement for the applicant’s contact rights. 9. According to the applicant, E.R. claimed that their daughter did not want to go with her father and thus systematically refused to open the door when the applicant came to collect the child. 10. On 7 July 2009 the police informed the Galaţi Child Protection Agency (Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Galaţi) about the applicant’s situation. The police became aware of the case as the applicant had lodged a criminal complaint against his wife for failure to respect the visiting schedule. The Child Protection Agency proceeded to assess the situation. 11. On 24 July 2009 the applicant also lodged a complaint with the Child Protection Agency, stating that his wife refused to give him access to the child and was manipulating the child into rejecting him, under threat of punishment. E.R. forbade the child from communicating with her father, sitting close to him, holding hands with him, kissing him or going into his car. The child was to run immediately inside to warn her mother when her father came to see her playing in the yard. 12. The Child Protection Agency started investigating the case. It visited E.R.’s home and appraised the situation. On 30 July 2009 it interviewed E.R. and from August 2009 both parents benefitted from psychological counselling. The Agency advised the mother to help her daughter maintain personal relations with the father. It also organised counselling sessions with the child. On several occasions E.R. refused to bring the child for a psychological evaluation. 13. On 25 September and 23 November 2009 the applicant reiterated his request with the Child Protection Agency and complained that the mother hindered his visiting rights. The Agency counselled the mother regarding respect for the applicant’s visiting rights and advised the applicant to address his complaints with the courts. 14. At the prosecutor’s request, the child underwent a psychological evaluation by the Child Protection Agency. On 8 April 2010 the psychologist rendered her report. She concluded that the child was normally developed but showed signs of having been manipulated by her mother into not expressing any positive feelings towards her father. She advised the mother to encourage the child to maintain her relations with the applicant. 15. On 11 May and 12 June 2010 the parents and child attended two sessions of psychological counselling with the Child Protection Agency where the tense relations between the adults were confirmed. 16. In a new report which was drafted on 27 August 2010, the Agency’s psychologist recommended that both adults undergo parental counselling to help them overcome the conflictual situation, that the mother encourage the child to maintain personal relations with the father and that both parents offer adequate emotional support to their child. 17. On 5 January 2010 the applicant sent his wife a notification through the offices of a bailiff asking her to comply with the court order establishing the visiting rights. He informed E.R. that in case she refused, he would start enforcement proceedings against her. 18. On 20 August 2010 the applicant started proceedings to have the County Court’s decision of 9 December 2009 enforced. On 19 April 2011 the Galaţi District Court dismissed an objection lodged by E.R., and found that she refused to comply with the court order. 19. On 8 September 2010 the bailiff, representative of the Child Protection Agency and the applicant met the child at her home. 20. On an unspecified date in 2010, the applicant lodged a request with the Galaţi District Court seeking to compel E.R. to bring their daughter to counselling. He argued that she was manipulating the child against him which rendered the exercise of his contact rights difficult. 21. The District Court rendered its decision on 2 November 2010. The court observed that, indeed, E.R. had failed to take her daughter to counselling. It reiterated that it was in the child’s best interest to maintain harmonious relations with both her parents. The court ordered E.R. to establish, together with the Child Protection Agency, a weekly counselling schedule for her daughter and to comply with it. 22. E.R.’s appeal against the District Court’s decision was dismissed by the Galaţi County Court on 2 June 2011. The court observed that most of the applicant’s attempts to see his daughter according to the schedule set by court order had failed because of the mother’s opposition or because of the conflicts between the parents, and that the child exhibited signs of being manipulated by her mother against her father. 23. On 12 September 2011 the applicant asked the Child Protection Agency to comply with the above court order of 2 November 2010 and set a timetable for the counselling sessions. On 3 February 2012 E.R. informed the Agency that she had enrolled the child in a counselling programme with the school psychologist and deplored the Agency’s attitude of blaming on her the conflictual situation between the adults. On 18 April 2012 E.R. went to the Agency’s headquarters and invited a team of experts to her home to see that the applicant was there with the child exercising his visiting rights. Two days later she informed the Agency that she accepted counselling for her child. 24. Some counselling sessions were organised between 25 April and 12 July 2012, for both the child and the adults. As the counselling failed to improve the child’s attitude towards her father, it was stopped. In the final report it was noted that the adults manifested hostility, lack of tolerance and respect towards each other and lacked any communication. Counselling for the child was considered futile so long as the parents remained in a conflictual situation. The psychologist recommended family and couple therapy, parental counselling and psychological counselling for the child. 25. In a letter addressed to the Agency on 13 August 2012 the applicant reacted to the conclusions of the report and asked E.R.’s parental rights to be withdrawn. The Agency expressed the view that there was no reason to withdraw E.R.’s parental rights. 26. The applicant lodged a request with the courts to obtain full custody of the child. The proceedings are currently pending. 27. The Agency organised the child’s psychological evaluation with its experts. After four sessions, the psychologist rendered the report. She concluded that the child’s exposure to court proceedings and repeated hearings and evaluations were detrimental to her and could cause emotional suffering. The expert also noted that the child detached herself emotionally from the adults’ problems and through her attitude tried to make them sort out on their own their conflicts. 28. The Agency presented its point of view in the proceedings. It reiterated its earlier assessment that there were no grounds to seek to deprive E.R. of her parental responsibility. It further noted that the child refused to cooperate with the psychologist which rendered the counselling futile. 29. The applicant lodged two criminal complaints against E.R. for noncompliance with a court order. They were both dismissed by the prosecutor’s office attached to the Galaţi District Court (“the prosecutor”) on 8 January 2010 and 25 June 2010 respectively. After hearing the two spouses, the prosecutor observed that the applicant managed to see his daughter occasionally, that on other times the child refused to see her father, or E.R. refused to give him the child, and that starting from March 2010 he had no longer exercised his visiting rights. 30. The applicant continued his attempts to see his child, lodged new criminal complaints against the mother, sought the Child Protection Agency’s assistance, and the mother was fined by the court on 10 April 2012 for failure to respect the court order establishing the visiting schedule. 31. After the fine imposed on the mother on 10 April 2012, she allowed the applicant to see the child, but the latter refused to leave with her father. 32. Several other civil court proceedings have been engaged by the applicant against his former spouse and the Child Protection Agency in order to have the custody arrangements reassessed. The child underwent more psychological evaluations in the process, and the experts considered that the tense situation between the adults led the child to refuse contact with her father, but that she would not oppose seeing him at her home. Consequently, the counselling efforts through experts of the Child Protection Agency continued throughout 2013. 33. The relevant articles from the Family Code and the Code of Civil Procedure, applicable at the time of the facts of the present case, are presented in Nistor v. Romania, no. 14565/05, §§ 50-51, 2 November 2010.