CASE OF DEAK v. ROMANIA AND THE UNITED KINGDOM
Violation of Art. 6-1 (Romania);No violation of Art. 6-1 (the UK);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Nicolas Bratza
5. The applicant, Mr Andrei Deak, is a Romanian national who was born in 1956 and lives in Bucharest. 6. The applicant married C.D. (hereinafter referred to as “the mother”), also a Romanian national, in January 1998. In July 1998 their son C.A. (hereinafter referred to as “the child”) was born. 7. In November 2000 they divorced and according to the divorce agreement between them, endorsed by a final court judgment, the mother was to have custody of the child, while the applicant obtained a right of access of 82 days per year and was to pay a monthly allowance. 8. In September 2002 the mother travelled to England to commence studying for a Master degree in Business and Administration and left the child in Romania with her parents. 9. In November 2002 the mother married a British national. She later returned to Romania and on 23 December 2002, without informing the applicant, took the child with her to London. 10. The applicant found out about the child’s removal from Romania to the United Kingdom in January 2003. 11. On 6 February 2003 he instituted proceedings in London before the High Court of Justice, Family Division (“the High Court”), under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The child and the mother were located by the British authorities; however, their place of residence was not disclosed to the applicant. 12. A directions hearing was held on 27 February 2003 before the High Court at which the parties were requested to file observations on the question whether the removal of the child from Romania was wrongful under Romanian law within the meaning of Article 3 of the Hague Convention. The judge in charge of the case also directed that the matter be set down for final hearing on 11 April 2003. 13. On 11 April 2003 the parties received permission to file further evidence. 14. By the time of the next hearing, on 9 May 2003, the High Court was presented by the applicant with documentary evidence emanating from the Ministry of Justice, the Romanian President’s Office, the Child Protection Authority and the Ombudsman, according to which the child’s removal was wrongful under Romanian law. However, the court was not convinced and, in accordance with Article 15 of the Hague Convention, requested a Romanian court decision on the matter. 15. On 11 June 2003 the applicant instituted civil proceedings before the Bucharest Third District Court (“District Court”) seeking a ruling that the child’s removal from Romania had been illegal. 16. On 16 July 2003 the applicant introduced a new application before the same court seeking a ruling that the child’s removal was contrary to Article 3 of the Hague Convention because he also had custody rights over the child. 17. On 1 September 2003 the District Court held the first hearing in respect of the applicant’s first action; however, as a result of the mother’s request for an adjournment, the proceedings were adjourned until 8 December 2003. 18. On 29 September 2003 the Romanian Ministry of Justice wrote to the High Court in London, informing it that the Romanian courts had exclusive competence in issuing decisions in accordance with Article 15 of the Hague Convention. 19. On 30 September 2003 the District Court in Bucharest held the first hearing in respect of the second action and adjourned the case on the grounds that the applicant had failed to sign the application and that the mother had failed to sign her request for an adjournment. 20. On 2 October 2003 the High Court in London resumed its examination of the case. The judge in charge of the case indicated that since his decision of May 2003 a number of documents from Romania had become available which seemed to indicate that the child’s removal from Romania by his mother was wrongful, and that, had these documents been available earlier, he would not have sought a declaration under Article 15 of the Hague Convention. Nevertheless, in view of the fact that the proceedings in Romania had commenced, and in view of the letter from the Romanian Ministry of Justice of 29 September 2003 it was decided to adjourn the proceedings to a date after 8 December 2003 (the date on which the District Court in Bucharest was to hear the case). The judge expressed concern about the time that had elapsed in the proceedings and indicated that if the 8 December hearing in Romania was not conclusive he would discharge the order he had made in May and proceed to adjudication. 21. On 31 October 2003 the mother submitted her observations concerning the applicant’s actions in the Romanian proceedings and introduced a counter-action seeking, inter alia, a ruling that the applicant did not have a right of custody over the child and that he did not have the right to decide on the child’s place of domicile. 22. On 8 December 2003 the District Court in Bucharest adjourned the hearing at the applicant’s request so that he could examine the mother’s observations and the counter-action lodged by her. On the same date the two actions lodged by the applicant and the mother’s counter-action were joined. 23. On 19 December 2003 the judge at the High Court in London, having learned that the final determination of the case before the Romanian court had yet again been put back, made an order that the final hearing in London should take place “as a matter of urgency” in January 2004. 24. On 5 January 2004 the District Court in Bucharest adopted a final ruling in the case and declared inadmissible the applicant’s actions without entering into the merits of the case. It decided not to examine the mother’s counter-action. Both parties appealed against the judgment. 25. On 14 January 2004 the proceedings in London were adjourned at the request of the parties to 1 March 2004 to allow time for receipt of the written reasons from the Romanian court. 26. On 20 January 2004 the District Court in Bucharest delivered its judgment and on 3 and 5 February the parties appealed against it. 27. On 6 February 2004 the case file was transmitted by the District Court to the Bucharest Court of Appeal and the latter fixed 6 April as the date of the hearing in the case. 28. On 23 February 2004 the applicant requested the Bucharest Court of Appeal to speed up the proceedings in view of the proceedings pending in London. His request was granted and the date of the hearing was set for 16 March 2004. 29. On 1 March 2004 the applicant applied for an adjournment in the High Court proceedings in London pending determination of the case by the Bucharest Court of Appeal. His request was granted and the judge in charge of the case ordered that the final hearing should take place as soon as possible after receipt of an authorised translation of the decision of the Bucharest Court of Appeal. 30. On 15 March 2004 the mother filed her observations with the Bucharest Court of Appeal. 31. On 16 March 2004 the applicant’s representative requested an adjournment from the Bucharest Court of Appeal in order to study the mother’s observations. 32. On 11 May 2004 the Bucharest Court of Appeal held a hearing in the case and heard submissions from the parties. The pronouncement of the judgment was adjourned to 25 May 2004. 33. On 25 May 2004 the Fourth Section of the Bucharest Court of Appeal quashed the judgment of the first-instance court in part. It examined the applicant’s action on the merits and dismissed it as ill-founded, finding that the applicant did not have custody rights over the child and that the child’s removal from Romania was legal under domestic law and not wrongful within the meaning of Article 3 of the Hague Convention. The judgment of the Court of Appeal was communicated to the parties on 19 July 2004. 34. On 3 August 2004 the applicant lodged an appeal on points of law with the Court of Cassation (Înalta Curte de Casaţie şi Justiţie) against the judgment of the Bucharest Court of Appeal. 35. On 16 August 2004 the case file was sent by the Bucharest Court of Appeal to the Court of Cassation of Romania. 36. On three occasions between November 2004 and March 2005 the applicant lodged requests with the Court of Cassation asking it for a speedier examination of his case on grounds of the urgency of the matter. 37. It appears that during that period the Romanian Code of Civil Procedure was undergoing changes and that it was not clear which court was competent under the new rules to examine the applicant’s appeal on points of law. On 16 March 2005 the Court of Cassation declined jurisdiction in favour of the Bucharest Court of Appeal and on 28 March the case file was sent back to that court. 38. The Bucharest Court of Appeal scheduled the first hearing in the case for 16 June 2005. 39. On 13 May 2005 the applicant requested that the proceedings be speeded up in view of an upcoming hearing in the London proceedings. On 19 May the applicant’s request was upheld and the hearing was rescheduled for 26 May 2005. 40. On 26 May 2005 the Third Section of the Bucharest Court of Appeal held a hearing; however, it decided to adjourn the proceedings to 9 June 2005. 41. On 9 June 2005 the Court of Appeal resumed the examination of the case and dismissed the applicant’s appeal on points of law. It found, inter alia, that, under Romanian family law, after divorce the parents of a child do not have equal rights in respect of their child. In particular, the parent who has custody of the child does not need the consent of the other parent in respect of measures concerning the child except for matters relating to adoption and/or losing or re-obtaining Romanian nationality. The parent who does not enjoy custody cannot veto a decision of the other parent concerning the child’s domicile. Accordingly, the removal of the child from Romania by the mother was lawful under Romanian law. 42. In July 2005, after the Romanian proceedings had ended and the final Romanian judgment had become available in English, the High Court in London resumed its proceedings and listed the case for a final hearing on 3 and 4 August 2005. 43. On 1 August 2005 the judge in charge of the case at the High Court in London acceded to the applicant’s application for an expert opinion on the law of Romania. The expert was to file his report by 16 September 2005. 44. Both parties agreed to instruct Dr Mihai to draft a report on Romanian family law and on 14 September 2005 the High Court confirmed the joint instructions to the expert and the time for lodging of the expert report was extended to 7 October 2005 with the final hearing listed for 14 October 2005. 45. On 28 September 2005 the High Court in London extended the time-limit for the expert report to 11 October and relisted the case for 31 October 2005. 46. The expert’s report was ready on 11 October 2005; however, the parties wished to put more questions to him. Therefore, on 31 October 2005, on an application from the applicant, the court adjourned the proceedings to 8 December 2005 and made further procedural directions in relation to any further questions to be put to the expert. 47. On 8 December 2005 the final hearing was listed before the High Court in London for 28 February and 1 March 2006. 48. On 28 February and 1 March 2006 the High Court held the final hearings in the case and gave judgment on 28 March 2006. The court found in favour of the applicant, choosing to rely on the expert opinion and to disregard the decisions of the Romanian courts. It found that the applicant had custody rights within the meaning of Article 5 of the Hague Convention and that therefore the child’s removal from Romania had been wrongful under Article 3 of the same Convention. The court also rejected an objection based on Article 13(b) of the Hague Convention raised by the mother and issued an order for the return of the child to Romania. 49. On 7 April 2006 the mother sought leave to appeal. This was granted on 10 April 2006 and the case was fixed for hearing in the Court of Appeal on 25 May 2006. 50. On 25 May 2006 the Court of Appeal heard and dismissed the mother’s appeal while varying the order for the peremptory return of the child until the end of the school term. 51. The mother appealed to the House of Lords. Her appeal was heard between 9 and 11 October 2006 and on 16 November 2006 the House of Lords gave judgment allowing the appeal. The House of Lords reversed the judgment of the High Court, finding that the applicant did not have custody rights within the meaning of Article 5 of the Hague Convention and that therefore the child’s removal from Romania was not wrongful under Article 3 of the same Convention. The House of Lords criticised the decision of the High Court to seek a further expert opinion after having obtained a final decision on the matter from the Romanian courts and expressed regret about the length of the proceedings. 52. Lord Hope of Craighead observed, inter alia, that: “Article 15 of the Convention contemplates that the court may need to be provided with a determination from the authorities of the state of the child’s habitual residence that the removal was wrongful. So a judge is not to be criticised if he decides to use this procedure because he cannot responsibly resolve the issue on the information provided by the applicant. Nevertheless if he decides on this course delay will be inevitable. Great care must therefore be taken, in the child’s best interests, to keep this to the absolute minimum. The misfortunes that have beset this case show that, once the court has received the response, it should strive to treat the information which it receives as determinative. In this case the response that was received from Romania was sufficient to show that the child’s removal was not wrongful within the meaning of article 3. On 9 June 2005 the final Court of Appeal of Bucharest, upholding the court of first appeal, stated in the clearest terms that, under the law as it then stood in Romania, termination of marriage through divorce brings joint custody to an end, that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited, and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child’s place of residence. It is wholly understandable that the father should feel aggrieved by what has happened in this case. The effect on his ability to exercise his rights of access is plain to see. But the phrase “rights of custody” has been given a particular definition by the Convention. It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes. The information provided by the Romanian court shows that, as the law stood at the time of the child’s removal, the father had no such rights.” 53. Baroness Hale of Richmond commented, inter alia, that: “...the Bucharest Court of Appeal concluded that the removal of the child in December 2002 had not been wrongful... How then should the courts of the requested state respond to such a determination? Most certainly not as they did in this case. Having received a determination, binding between the parties, in the final court of the requesting state, the English High Court proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence. The fact that the expert was jointly instructed does not cure the vice.” 54. Lord Carswell stated that: “It was quite wrong to permit the father to adduce further expert evidence from Dr Mihai which challenged not only the conclusion but the statement of the content of the father’s rights set out in the judgment of the Romanian court. The English court should have considered the terms of the judgment itself, without any subsequently obtained expert evidence. If it had done so it could only have come to the same conclusion as the Romanian court, even without applying any presumption in its favour.” 55. Lord Brown commented as follows: “This is an extraordinary case. It is, we are told, unique in the length of time which elapsed before the judge’s order for the child’s summary return to Romania (over three years after the commencement of Hague Convention proceedings); and unique too in being the only case in which a United Kingdom court has rejected a foreign court’s article 15 determination that the child’s removal was not in the event wrongful within the meaning of article 3... In circumstances like these it seems to me almost inconceivable that the court requesting the article 15 determination would then not simply accept it. Certainly there would need to be some compelling reason to reject it such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Convention term “rights of custody”. There is nothing of that sort here. On the contrary, the judge - neither Johnson J (who had requested the determination) nor Hogg J (who later ordered the child’s return to Romania) - on 1 August 2005, acting merely on the father’s request, ordered that an expert in Romanian law be jointly instructed by both parties to cover exactly the same ground as the Romanian Appeal Courts had themselves just covered...” 56. Throughout the entire proceedings in the United Kingdom the applicant was allowed to meet his child on a number of occasions in special contact centres for periods not exceeding two hours. According to him, however, over the last four years he has only been able to spend about thirty hours with his son. 57. It does not appear that the applicant ever applied to the United Kingdom courts in order to obtain a judgment from them giving him access to the child. However, on an unspecified date in 2007 he applied to the High Court in London for the recognition of the Romanian judgment of November 2000 (see paragraph 7 above). The Court is not aware of the outcome of those proceedings. 58. The relevant provisions of the Romanian Family Code read as follows: 1. The divorced parent who was entrusted with the child shall exercise the parental rights... 3. The divorced parent, who was not entrusted with the child, keeps the right to have personal ties with the child, as well as to observe his or her bringing up, education, studies and professional instruction. 59. The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction provide: “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “For the purposes of this Convention – a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures - a) to discover the whereabouts of a child who has been wrongfully removed or retained; b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d) to exchange, where desirable, information relating to the social background of the child; e) to provide information of a general character as to the law of their State in connection with the application of the Convention; f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child...” “The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 15 “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.” Article 21 “An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”