CASE OF PASCAL v. ROMANIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi
7. The applicant was born in 1976 and lives in ClujNapoca, Romania. 8. The applicant was married to O.M.M. and the couple had one daughter, N.M.E.P., who was born on 8 June 2004. 9. On 1 August 2006, following the applicant’s and O.M.M.’s separation, he brought proceedings against O.M.M., seeking an injunction for interim contact rights with his daughter. 10. By a judgment of 3 August 2006 the ClujNapoca District Court allowed the applicant’s action of 1 August 2006. It held that the applicant could see his daughter every Sunday between 10 a.m. and 1 p.m. at her mother’s house or elsewhere. O.M.M. appealed against the judgment. 11. By a final judgment of 19 October 2006 the Cluj County Court allowed an appeal by O.M.M. against the judgment of 3 August 2006 and ordered a retrial. 12. By a final judgment of 29 November 2006 the ClujNapoca District Court, in a second set of proceedings, allowed the applicant’s action of 1 August 2006. It held that the applicant could see his daughter every Sunday between 10 a.m. and 1 p.m., at her mother’s house or elsewhere. 13. On 7 March 2007 the applicant brought proceedings against O.M.M., seeking an injunction for exceptional contact rights on 28, 29 and 30 March 2007 between 10 a.m. and 1 p.m. 14. By a final judgment of 8 March 2007 the ClujNapoca District Court allowed the applicant’s action in part and acknowledged his right to visit his daughter exceptionally on 29 March 2007 between 10 a.m. and 1 p.m. at O.M.M.’s home or elsewhere, on the ground that it was in the best interest of the child to preserve family ties with her father and her relatives. 15. On an unspecified date in 2007 the applicant brought proceedings against O.M.M., seeking an injunction for exceptional contact rights on 29, 30 and 31 May and 1 June 2007 between 10 a.m. and 1 p.m. 16. By a final judgment of 24 May 2007 the ClujNapoca District Court allowed the applicant’s action in part and acknowledged his right to visit his daughter exceptionally on 30 May and 1 June 2007 between 10 a.m. and 1 p.m., at O.M.M.’s home or elsewhere, on the ground that it was in the best interest of the child to preserve family ties with her father and her relatives. 17. On an unspecified date in 2007 the applicant brought proceedings against O.M.M., seeking an injunction for exceptional contact rights for the 2007 Christmas holiday. 18. By a judgment of 20 December 2007 the ClujNapoca District Court allowed the applicant’s action for exceptional contact rights for the 2007 Christmas Holiday. It held that given the tense relationship between the parents it would be in the best interest of the child and less stressful for her if she could meet her father away from her mother’s home. Consequently, it allowed the applicant to take the child away from her mother’s home for seven days, starting on 22 December 2007. O.M.M. appealed against the judgment. 19. By a final judgment of 1 February 2008 the Cluj County Court dismissed O.M.M.’s appeal against the judgment of 20 December 2007. It held that the appeal was moot, as the injunction of 20 December 2007 was enforced and her daughter was returned to her after seven days. 20. On 23 August 2006 the applicant brought divorce and child custody proceedings against O.M.M. 21. By a judgment of 15 February 2007 the ClujNapoca District Court allowed the applicant’s action for divorce, awarded sole custody of the child to O.M.M., and ordered the applicant to pay monthly child support. By relying on witness statements and on the Cluj Guardianship Authority’s (Autoritatea Tutelară Cluj) social investigation and recommendation the court held that the mother was the child’s main caregiver. Consequently, it considered that the mother was able to ensure N.M.E.P.’s emotional and physical development, and that her presence was still essential, given the young age of the child. The judgment was final, as neither the applicant nor O.M.M. appealed against it. 22. On 25 September 2006 the County Centre for Abused Children attached to the Child Social and Protection Services (Direcţia Generală de Asistenţă Sociala şi Protecţia Copilului – Centrul Judeţean de Intervenţie pentru Copilul Abuzat) produced a psychosocial report in respect of N.M.E.P. According to the report the Centre for Abused Children carried out an investigation into the case after they were informed by O.M.M. that the child’s father had behaved inappropriately towards his daughter by bathing with her without wearing underwear, and had neglected the child when she was left alone with him. The report also stated that following a discussion with both parents they accused one another of inappropriate behaviour towards the child which negatively influenced the minor’s behaviour. In addition O.M.M. also accused the applicant of being physically aggressive towards her in January 2006. Consequently, both parents were invited, and agreed, to attend psychological counselling sessions at the County Centre for Abused Children. The child’s father was informed on several occasions that his behaviour in bathing naked with his daughter could influence his relationship with her and could have unforeseen negative consequences. The report concluded that the child’s situation needed to be monitored and that the parents needed to continue the psychological counselling sessions within the centre. 23. On 5 December 2007 the Centre for Abused Children attached to the Child Social and Protection Services produced a psychological evaluation report in respect of N.M.E.P. The report stated, inter alia, that the child was developing normally for her age. She felt closer to her mother and evaluated her in positive terms. She started being upset when she was asked about her father. The father was represented in a negative way because of the tense situation between the parents. None of the father’s actions were received positively, and she did not wish her father to visit, because of the tense situation with her mother. She considered her father’s visits to be a negative process. Her father was excluded from the description of her family, which in her opinion consisted of her mother and her maternal grandparents. She refused to discuss any potential sexual abuse by her father. The report concluded that the child was scarred by the tense situation between her parents, and that consequently she did not wish to receive visits from her father. Moreover, there was no clear evidence that she had been sexually abused by either of her parents. 24. On 6 December 2010 the Centre for Abused Children attached to the Child Social and Protection Services informed the Government, inter alia, that attempts were being made to mediate the relationship between the applicant and his former wife to help them protect the best interest of their child. In 2006 the parents were asked to attend psychological counselling sessions. After four meetings the applicant decided that the sessions were useless and discontinued attending them. 25. On an unspecified date in 2007 the applicant brought injunction proceedings against O.M.M., seeking to establish a schedule for visiting rights. He requested the court to order O.M.M. to allow him to see his daughter on Sundays, on 8 May, 8 June, 14 July, 11 and 24 November; one week for Orthodox Easter and one for Christmas every two years; in August; one week between OctoberDecember, JanuaryMarch and AprilJune; and to allow him to leave the country with the child for at least a week during the time they spent together and in August 2007. 26. By a judgment of 7 June 2007 the ClujNapoca District Court allowed the applicant’s action in part, seeking to establish a schedule for visiting rights. Relying on the statements of the parties’ witnesses and on the report produced by the County Centre for Abused Children attached to the Child Social and Protection Services, the court held that the father could visit the child and spend a few hours per week with her in the mother’s absence. The absence of her mother would avoid any stressful situation for the child caused by the tension between the parents. Also the contact with her father would be welcomed by and beneficial for the child as long as N.M.E.P. needed the attention of both parents for her balanced emotional and physical development, which could not be achieved in the presence of both parents. According to the social investigation carried out at the applicant’s home, his living conditions were appropriate. The fact that the supplement to the social investigation, which the court did not order, mentioned that the rooms of his home looked unwelcoming, without providing details on why they would be unfit to host a child, could not be considered a well-grounded reason for refusing the applicant contact with his daughter. Moreover, O.M.M.’s arguments that the applicant was not capable of taking care of the child were rebutted by the available witness statements. 27. In respect of the applicant’s request to be allowed to occasionally take the child out of the country the district court held that regardless of the parent’s position, the minor had a legal right to meet her relatives, including the paternal ones. The paternal relatives met the child and had her wellbeing at heart. In N.M.E.P.’s case, she enjoyed ties with both Romanian and French cultures, and she could not be denied the right to maintain those direct contacts with the two countries. In addition, no evidence supported O.M.M.’s argument that the applicant would fail to return the child to Romania. The child had been left alone with the applicant before and he had always returned her to her mother. Moreover, the witnesses stated that whenever O.M.M. did not agree to leave the child alone with him he did not insist on O.M.M. doing so. Also, she never expressed concern that the applicant would fail to return the child to her. The applicant’s failure to indicate the dates for travelling abroad and for returning to Romania by providing plane tickets could not be considered arguments for the dismissal of his request, as it was the court’s task to set those dates. Also, the applicant had provided the names and addresses of all his relatives, where he would like to take the child. Consequently, after it had been established that the schedule suggested by the applicant was not in the minor’s best interest, the court set a contact rights programme for the applicant and allowed him to take the child away from O.M.M.’s home, even in her absence and without her consent: on Sundays, on 14 July and between 1 and 15 August; every second year on 8 June, a week at Easter and a week at Christmas. In addition, the court allowed the applicant to take the child out of Romania, even without O.M.M.’s consent, every second year for a week at Easter and for Christmas and yearly between 1 and 15 August. The parties appealed against the judgment. O.M.M. asked the court, inter alia, to order a psychological evaluation of the child, but the applicant contested O.M.M.’s request. 28. By a judgment of 14 November 2007 the Cluj County Court dismissed O.M.M.’s request for a psychological evaluation of the child, on the ground that it would be inconclusive for the case, and allowed the applicant’s appeal in part. It also allowed the applicant to take the child away from O.M.M.’s home every year on 24 November, even in her absence, and upheld the judgment of 7 June 2007. The judgment became final on 5 April 2008, as the parties’ appeal on points of law (recurs) was dismissed by the Cluj Court of Appeal. 29. On an unspecified date in 2009, following O.M.M.’s and his daughter’s move to the United Kingdom on an unspecified date in 2009, the applicant brought proceedings against O.M.M., seeking a new contact schedule and an injunction for his daughter to be brought to his home at O.M.M.’s expense under the penalty of 50 new Romanian lei (RON) (approximately 13 euros (EUR)) in daily compensation for any delay on the following dates: every second Sunday; every second year on 8 June, at Orthodox Easter and at Christmas; and yearly between 1 and 15 August. 30. By a judgment of 12 November 2009 the ClujNapoca District Court allowed the applicant’s action in part. It held that the change of the child’s residence to a different country justified the applicant’s action for a new contact schedule. However, the court considered that the schedule suggested by the applicant was too tiring for the child, taking into account her young age and her need to attend school. In this respect the court held that the Orthodox Easter period would prove a good opportunity for the applicant to visit his daughter at her home and would give him the opportunity to meet the child in a familiar environment for the latter. For the winter and summer holidays, when the applicant and his daughter could spend more time together, he was allowed to take his daughter away from her mother’s home, since there would be enough time for the child to rest and play. Moreover, the court considered that the parents must share the child’s travelling expenses for the summer and winter holidays, while the travelling expenses for Easter would be incurred by the father. Furthermore, on account of O.M.M.’s previous obstructive behaviour with regard to the enforcement of judgments, the court ordered her to pay a RON 50 (approximately EUR 13) daily compensation for any delay if she failed to comply with the contact schedule established by the court, as follows: yearly at Orthodox Easter at the child’s home in the United Kingdom, at the applicant’s expense and between 1 and 15 August at both parents’ expense; and one week every two years for Christmas at both parents’ expense. The applicant appealed against the judgment. 31. By a judgment of 23 February 2010 the Cluj County Court allowed the applicant’s appeal against the judgment of 12 November 2009, in part. It held that every two years at Orthodox Easter, the child was to travel to Romania and stay at the applicant’s home. The expenses would be borne by both parents and the child would be accompanied by the mother on the outbound flight from the United Kingdom and by the father on the return flight home. Moreover, the father could travel to visit his daughter every second month for the last weekend of the month, while the mother had to bring the child to Romania to her father’s home every second month for the last weekend of the month. Both parents had to pay their own travelling expenses. The monthly travel visits could not take place around the Easter and the Christmas period, when the contact schedule established by the first-instance court applied. Lastly, it upheld the remaining provisions of the judgment of 12 November 2009. 32. The applicant informed the Court on an unspecified date in 2011 that O.M.M had appealed on points of law (recurat) against the judgment of 23 February 2010, and that her appeal (recurs) had been allowed. He submitted that the contact schedule had been changed by the final judgment, in so far as he was forced to travel to the United Kingdom on the last Sunday of every month to see his daughter. Moreover, according to him the judgment did not refer to the mother’s duty to bring his daughter to him for the Christmas and summer holidays. Furthermore, for Easter he would be able to see his daughter once every two years starting from 2010, but only for two days and not for a week. The Easter holiday was the only time the courts had ordered the mother to bring N.M.E.P. to him. The applicant did not submit a copy of the alleged final judgment to the file. 33. On 20 August and 15 October 2006 a bailiff employed by the applicant attempted to enforce the judgment of 3 August 2006. The enforcement reports produced by the bailiff on the same dates stated that O.M.M. had left her home with the intention of preventing the enforcement of the judgment, although she had been notified of the bailiff’s visits; and also that she allowed the applicant to see his daughter at her home and in her presence but did not agree for him to take her away. 34. On 10 and 17 December 2006 a bailiff employed by the applicant attempted to enforce the judgment of 29 November 2006. The enforcement reports produced by the bailiff on the same dates stated that O.M.M. allowed the applicant to see his daughter at her home but did not agree for him to take her away. 35. On 29 March 2007 a bailiff employed by the applicant attempted to enforce the judgment of 8 March 2007. The enforcement report produced by the bailiff on the same date stated that O.M.M. had allowed the applicant to see his daughter at her home but did not agree that he could take her elsewhere, because N.M.E.P. refused to leave with her father. Eventually, the two parents agreed that their daughter could leave if she was accompanied by her mother. 36. On 16 April 2008 a bailiff employed by the applicant attempted to enforce the judgment of 7 June 2007. On the same date the bailiff notified O.M.M. that on 25 April 2008 the applicant wanted to take N.M.E.P. to France for a week at Easter. 37. On an unspecified date in 2008 O.M.M. contested the enforcement proceedings opened against her on 16 April 2008. 38. On 22 April 2008 the bailiff requested the Cluj Social Assistance and Child Protection Agency to delegate a representative to accompany him to O.M.M.’s home on 25 April 2008 on account of O.M.M.’s previous repeated refusals to allow the applicant to have contact with his daughter. 39. On 25 April 2008 the bailiff accompanied the applicant to O.M.M.’s home. The enforcement report produced by the bailiff on the same date stated that it was impossible to enforce the judgment, as neither the mother nor the daughter were present, and O.M.M. had written to the applicant that she had gone on holiday for Easter. 40. On 12 May 2008 the Cluj Social Assistance and Child Protection Agency informed the bailiff’s office that so far as the enforcement proceedings were concerned the Agency was not party to the proceedings, did not have legal standing and it did not have any record of the child being placed under special protection measures. 41. By a judgment of 18 June 2008 the ClujNapoca District Court dismissed O.M.M.’s action contesting the enforcement proceedings opened against her on 16 April 2008, on the ground that they were lawful. There is no evidence in the file that O.M.M. appealed against the judgment. 42. On 15 July 2008 the bailiff made a second attempt to enforce the judgment of 7 June 2007. On the same date the bailiff notified O.M.M. that the applicant would visit her home on 1 August 2008 at 11 a.m. to take the child away for the period between 1 and 15 August 2008. 43. On 1 August 2008 the bailiff accompanied the applicant to O.M.M.’s home. The enforcement report produced by the bailiff on the same date stated that the child refused to leave with her father and consequently O.M.M. did not agree to allow her to go. 44. On an unspecified date in 2006 the applicant brought proceedings against O.M.M., seeking an injunction for a fine of between RON 20 and RON 50 (approximately EUR 5 to 13) for every Sunday O.M.M. refused to allow him to see his daughter as required by the final judgment of 29 November 2006. 45. By a final interlocutory judgment of 30 January 2007 the ClujNapoca District Court dismissed the applicant’s action for a fine. It held that according to the enforcement report produced by the bailiff on 10 December 2006 O.M.M. had allowed the applicant to see his daughter at her home and in her presence, but that she had refused to allow him to take the child away. In these circumstances the Court considered that O.M.M. had not obstructed the enforcement of the judgment of 29 November 2006. 46. On 4 February 2008 the applicant brought proceedings against O.M.M., seeking an injunction for a RON 5,000 (approximately EUR 1,250) security deposit and a civil fine of RON 50 (approximately EUR 13) for every day she prevented him from enforcing the judgment of 7 June 2007. 47. By a judgment of 10 July 2008 the ClujNapoca District Court allowed the applicant’s action of 4 February 2008 in part. It ordered O.M.M. to pay a RON 30 fine for every day she prevented the applicant from enforcing the judgment of 7 June 2007. In this respect it held that O.M.M. had prevented the applicant on several occasions in 2008 from seeing his daughter, either by not being at home or by refusing to allow him to take his daughter away from her home. However, the court dismissed his claim for a security deposit, on the ground that it had already ordered O.M.M. to pay a fine for obstructing the enforcement of a final judgment. The applicant appealed against the judgment. 48. By a judgment of 11 November 2008 the Cluj County Court dismissed the applicant’s appeal against the judgment of 10 July 2008, on the ground that the applicant had already been ordered to pay a fine. Moreover, forcing her to pay an additional RON 5,000 penalty would be disproportionate, and might affect the child due to the financial burden imposed on her mother. The applicant appealed on points of law (recurs) against the judgment. 49. By a final judgment of 18 February 2009 the Cluj Court of Appeal allowed the applicant’s appeal on points of law against the judgment of 11 November 2008 in part and ordered O.M.M. to deposit on a bank account a payment of RON 3,000 (approximately EUR 750) in the applicant’s name. In also upheld the remaining part of the judgment of 11 November 2008. It held that while the mother’s financial stability had to be considered, the child had a right to spend time with her father. Moreover, the mother had a good income and the amount established by the court for the warranty maintained a balance between the financial burden imposed on O.M.M. and the aim of preserving family ties. 50. On 17 April 2009 the applicant brought proceedings against O.M.M., asking the court to establish the amount of the fine O.M.M. had to pay following the judgment of 10 July 2008 and seeking an injunction for O.M.M. to pay him RON 8,000 (approximately EUR 2,000) in compensation for nonpecuniary damage following her repeated refusals to accept the enforcement of the judgment of 7 June 2007. 51. By a judgment of 22 October 2009 the ClujNapoca District Court dismissed the applicant’s action of 17 April 2009. It held that the court could not establish the amount of the fine due, as the applicant had not been able to show how many times he had been obstructed in the enforcement of the judgment of 7 June 2007 after O.M.M.’s duty to pay a fine was set by the court on 10 July 2008. Moreover, the tense relationship between the parents, reflected also in his relationship with his daughter, did not allow the applicant always to see his daughter in the circumstances he would have wished. While separation from one’s child after divorce implied a certain suffering, this was not of such a level as to engage O.M.M.’s civil liability. The problems faced by the applicant, in particular his former wife’s behaviour, had already been punished by the courts, which had obliged her to set up a security deposit in his favour. In addition, the fact that his daughter had left Romania and he had not been able to see her since February 2009 could not have caused him additional suffering, since he was notified about his ex-wife’s decision, was informed of his daughter’s address in the United Kingdom, and had brought proceedings for the contact rights schedule to be changed. Consequently, pending those proceedings, his only discomfort was caused by the fact that he did not live in the same country as his daughter any more. The applicant appealed against the judgment. 52. By a final judgment of 5 May 2010 the Cluj County Court dismissed the applicant’s appeal against the judgment of 22 October 2009 as timebarred. 53. On 15 January 2008 the applicant brought criminal proceedings against O.M.M. for obstructing the enforcement of the judgments allowing him contact rights with his daughter. He argued that although he had attempted repeatedly to enforce the judgments of 29 November 2006, 7 June and 20 December 2007 and the judgments allowing him exceptional contact rights with his daughter for 29 March, 30 May and 1 June 2007, he had been unable to do so because of O.M.M.’s behaviour. 54. By a judgment of 11 March 2008 the ClujNapoca District Court dismissed the applicant’s criminal complaint of 15 January 2008, on the ground that O.M.M.’s behaviour could not be classified as criminal. However, the court applied an administrative sanction, issuing O.M.M. with a warning. It held, inter alia, that although O.M.M. had obstructed the enforcement of final court judgments, her conviction would not serve and adequate purpose considering that the parties have a child together and a conviction could also influence the future of the said child, particularly if O.M.M. did not change her behaviour. The applicant appealed against the judgment. 55. By a final judgment of 2 July 2008 the Cluj County Court dismissed the applicant’s appeal against the judgment of 11 March 2008. It underlined, inter alia, that, according to a report produced by the County Centre for Abused Children attached to the Child Social and Protection Services following counselling sessions with the parties which were quit by the father, the child was affected by the conflict between her parents and considered her mother to be “good” and her father to be “bad” and wanted him to “leave her alone” and to stop visiting her. The child was closer to her mother and was somewhat detached from her father, even rejecting him of her own accord, whether or not induced to do so by her mother. In this context, the court held that although O.M.M. obstructed the enforcement of final court judgments it could not be argued that she did not have in mind the best interest of her child. She allowed the father to visit the child at her home and in her presence. Consequently, given the tense relations between the parents and the need of the child, convicting O.M.M. would not serve any purpose, as it would preserve, inter alia, the child’s feelings of uncertainty. 56. In a letter addressed to the Court in December 2008 the applicant stated that from July 2006 until December 2008 he had attempted to exercise his acknowledged visiting rights 108 times. All the attempts of the applicant to visit his daughter according to the schedule established by final judgments were obstructed by the categorical refusal of O.M.M. to let him take the minor away from her home, and whenever he was allowed to see his daughter he was compelled to agree to the visits taking place in her presence, or else in the presence of the minor’s maternal grandmother. Consequently, he lodged 107 criminal complaints against O.M.M. for noncompliance with the provisions of the final judgments allowing him personal contact with his daughter. 57. In a letter addressed to the Court on an unspecified date in 2011 the applicant stated that he had no knowledge of his daughter’s whereabouts and that he had not seen her for a year and a half. His former wife had allegedly moved from the address he had known in the United Kingdom and had not notified him of the new address. Moreover, although the domestic courts had been informed about the mother’s failure to notify him of his daughter’s new address during the proceedings seeking to change the contact rights schedule, they did not order her to disclose it to him. Consequently, he was unable to contact or see his daughter. 58. The relevant domestic legal provisions are set out in the Court’s judgments in the cases of Lafargue v. Romania (no. 37284/02, §§ 64-69, 13 July 2006), and Costreie v. Romania (no. 31703/05, §§ 55-58, 13 October 2009). The role and responsibilities of the local public authorities in respect of social assistance and child protection, as well as the relevant provisions of the Child Protection Act (no. 272/2004), are described in the judgment in the case of Amanalachioai v. Romania, (no. 4023/04, §§ 56 and 59, 26 May 2009).