European Court of Human Rights

FOURTH SECTION

CASE OF NIȚĂ v. ROMANIA

(Application no. 1240/21)

JUDGMENT
 

STRASBOURG

16 April 2024

This judgment is final but it may be subject to editorial revision.

In the case of Niță v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Faris Vehabović, President,
 Anja Seibert-Fohr,
 Sebastian Răduleţu, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 1240/21) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 16 December 2020 by a Romanian national, Ms Mihaela-Ramona Niță ("the applicant"), who was born in 1990, lives in Criva de Jos and was represented by Ms M.C. Sărsan, a lawyer practising in Slatina;

the decision to give notice of the application to the Romanian Government ("the Government"), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties' observations;

the decision to reject the Government's objection to the examination of the application by a Committee;

Having deliberated in private on 26 March 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the manner in which the courts decided on the residence of the applicant's child, after the parents' separation. The parents were granted joint parental responsibility.

2.  The applicant and Mr X had a son together, Y, born in 2008.

3.  In May 2015 the applicant left the family home, allegedly against her will, and was prevented from taking Y with her or seeing him afterwards.

1. FIRST RESIDENCE ORDER

4.  Each parent requested that Y's residence be fixed with them. By means of an enforceable albeit non-final decision of 26 May 2013 the Slatina District Court set Y's residence with the applicant, but in a final decision of 29 November 2017 the Olt County Court reversed that order and established Y's residence with his father.

5.  The County Court relied on the results of a psychological assessment of the child of 30 September 2017, which concluded that he was very close to his father and rejected his mother, being afraid that she would take him away from his father's home. The report also found that X had alienated Y from his mother.

6.  The County Court considered that in order to avoid more trauma for Y, it would be in his interest to continue living with X, who should stop denigrating the applicant in front of the child. It recommended psychological counselling for X to learn to act in Y's best interest. X admitted before the court that he had been violent towards the applicant during their relationship, allegedly because of her infidelity.

7.  In the meantime, on 15 September 2016, while the proceedings for a residence order were pending on appeal, a bailiff started enforcement of the 26 May 2013 decision (see paragraph 4 above). Y refused in absolute terms to leave the bailiff's office with his mother.

2. CONTACT ARRANGEMENTS

8.  As after the court decided to set Y's residence with X (see paragraph 4 above) the latter denied contact between the applicant and Y, on an application lodged by her, the Slatina District Court, in a decision of 6 November 2018, set a contact schedule in the applicant's favour. Despite the applicant's repeated requests addressed to X, that schedule was never respected.

9.  On 16 July 2018, while the bailiff was attempting to enforce the contact schedule, Y said that he would only go with the applicant if X went with them. The three left the bailiff's office together.

10.  Because of Y's opposition, at the child protection authority's request, based on the bailiff's report of 16 July 2018, on 14 February 2019 the District Court ordered a three-month mandatory counselling programme for Y. It asked to see the report at the end of the programme. It also informed the applicant that if Y still refused contact at the end of the counselling programme, she could seek penalties from X for non-compliance with a court order.

11.  On 21 July 2020 the applicant lodged a criminal complaint against X for non-compliance with the contact arrangements.

3. SECOND RESIDENCE ORDER

12.  On 30 January 2019 the applicant lodged a new action before the Slatina District Court requesting that Y's residence be set with her, on the grounds that X had not respected the contact schedule and had forbidden her to visit or speak on the telephone with Y. Their contacts were limited to visiting Y at school.

13.  On 16 September 2019 Y was interviewed by the court. He said he wanted to continue living with his father and to see his mother occasionally.

14.  The court further relied on the final decision of 29 November 2017 (see paragraphs 4 and 6 above), the psychological report of 30 September 2017 (see paragraph 5 above) and the bailiff's reports of 15 September 2016 and 16 July 2018 (see paragraphs 7 and 9 above). It also had at its disposal two social inquiry reports about the parents' homes which concluded that they offered similar conditions for raising Y.

15.  The court also noted that in 2018 X had been violent towards his new partner, who obtained a six-month protection order against him and his eviction from their home; he had also been criminally convicted for refusing to submit to alcohol testing after being caught drunken driving. However, none of those episodes had taken place in Y's presence and X had not committed any reproachable act towards Y.

16.  In a decision of 25 November 2019 the Slatina District Court dismissed the applicant's action. The court considered that, bearing in mind that the parents offered similar conditions for raising Y, and despite the negative influence exerted by X over Y, it was more important for the child to maintain stability and continue living in a familiar environment where he felt safe. It considered that contact with the mother had to be re-established gradually and not forcibly through a change of residence.

17.  The applicant appealed, but in a final decision of 28 July 2020 the Olt County Court upheld the District Court's findings.

18.  On 21 July 2020 the County Court heard Y, who reiterated that he did not wish to live with his mother, not even temporarily.

19.  The court observed that the situation had not changed since the first residence order (see paragraph 4 above) and that no reproach could be made to X about his behaviour towards Y. Moreover, Y was happy in his current environment.

20.  The court observed that Y refused to talk to the applicant and reiterated that they needed time to rebuild their relationship. It noted that the applicant could use other means of contact, including by seeking mandatory counselling for Y, within the enforcement of the contact order (see paragraph 8 above). It considered that X should encourage rebuilding the mother-child relationship.

21.  Lastly, the court considered that the fact that X prevented and obstructed contact and alienated Y from his mother did not constitute a valid reason for a change of residence.

THE COURT'S ASSESSMENT

22.  The applicant complained that the courts deciding on the second residence order had not taken into account the relevant evidence, thus violating her right to raise her child. Although she relied on Article 1 of the Convention, the complaint falls to be examined under Article 8 (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018; and Voica v. Romania, no. 9256/19, §§ 42-43, 7 July 2020) and the parties were invited to comment on compliance with the latter provision.

23.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

24.  The relevant principles concerning interference with the right to respect for family life are summarised in Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 202-04, 10 September 2019) and Petrov and X v. Russia (no. 23608/16, §§ 98-102, 23 October 2018). The Court must determine whether the reasons adduced to justify the decision not to set the child's residence with the applicant were relevant and sufficient for the purposes of Article 8. The interference thus suffered by the applicant must be proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests and bearing in mind the paramount importance of the child's best interests (Strand Lobben and Others, cited above, §§ 203-204). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8 (Petrov and X, cited above, § 101).

25.  The Court observes that the psychological report used by the domestic courts in the second set of proceedings concerning Y's residence stemmed from the first set of proceedings and was already two years old (see paragraph 14 above), and there was no attempt to obtain updated evaluations (ibid., § 222). The courts thus deprived themselves of the benefit of a fresh assessment of Y's psychological needs. It is also unclear on what grounds the courts found that X's violent and alienating behaviour was irrelevant to the issue of residence (see paragraphs 15, 16 and 21 above; contrast Diamante and Pelliccioni v. San Marino, no. 32250/08, §§ 180 and 183, 27 September 2011).

26.  Furthermore, while relying on the findings of the first proceedings for a residence order, the courts did not factor in the failed enforcement attempts of that first order (see paragraphs 7-11 above) and sought no clarification concerning the steps taken by the authorities in order to address Y's refusal to see his mother (see paragraph 10 above). In this respect, their advice that the applicant seek enforcement of the contact order rather than a change of residence and that X help rebuild the mother-child relationship (see paragraphs 16 and 20 above) is at the very least difficult to reconcile with the evidence presented before the courts. It must be noted that the same recommendations had been made by the courts to no avail in the first set of proceedings for a residence order (see paragraph 6 above), an issue with which the courts deciding on the second application for residence did not seem to have engaged (see notably paragraphs 20 and 21 above).

27.  The Court is not persuaded that the domestic courts attempted to perform a genuine balancing exercise between the best interests of the child and those of the parents, in particular his mother (see, mutatis mutandis, Strand Lobben and Others, cited above, §§ 204, 206 and 220). They did not seriously assess the consequences, including in the long-term, of the child continuing to live with X and, at least partly because of the latter's behaviour, being effectively deprived of his mother's presence in his life.

28.  For these reasons, the Court does not consider that the decision-making process leading to the final decision of 28 July 2020 (see paragraph 17 above) was conducted so as to ensure that all views and interests were duly taken into account. It is thus not satisfied that the said procedure was accompanied by sufficient safeguards.

29.  There has accordingly been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention.

Done in English, and notified in writing on 16 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Simeon Petrovski Faris Vehabović
 Deputy Registrar President