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Return proceedings lasting 13 months breach father’s Article 8 rights

ECtHR finds against Romania

The European Court of Human Rights has decided that the excessive duration of proceedings in the Romanian courts concerning the return of a child to Argentina breached the father's rights under Art 8 of the ECHR.

In Ferrari v Romania [2015] ECHR 429, The applicant, Adrian Ferrari, an Argentine national living in Buenos Aires, had a child with a Romanian and Argentine citizen in August 2005. The permanent residence of the family was in Argentina, but the family travelled frequently, as a consequence of his service as a military pilot.
After having stayed together for several months in Cyprus in 2006, Mr. Ferrari and his wife agreed that she would take the child to Romania for a few months before returning to Buenos Aires. However, the applicant's wife informed him in November 2007 that she would not return to Argentina with the child.

Subsequently, she sought a divorce and custody of the child in the Romanian courts. They pronounced the divorce in April 2008 but decided not to determine the issue of custody on the ground that, in the interval, Mr. Ferrari had presented a request for the return of his child under the Hague Convention and the proceedings were still pending. The proceedings lasted from March 2008 to May 2009, when the Romanian courts made their final decision on the case.

Initially the mother was ordered to return the child to Argentina. However, the court later concluded that the child's arrival to Romania was not unlawful as both parents had consented to the trip. It also found that the child was already integrated in his new environment. It considered that it would not be in the child's best interest to return to Argentina, because the applicant travelled often due to his job as a military pilot and consequently could not take proper care of the child.

In September 2011, the Romanian courts granted the mother custody of the child and a right of access to Mr Ferrari.

Mr Ferrari had been able to see his child in Romania on three occasions since the end of 2009. Mr. Ferrari maintained that the duration of the proceedings – 13 months – before the Romanian courts constituted a breach of his Article 8 rights.

The European Court of Human Rights stated that the domestic courts are better fit to examine the circumstances of the case before them. It therefore could accept that the passage of time brought about a change in the child's situation which triggered the application of Article 12 of the Hague Convention. It remained nevertheless to be ascertained whether this change was caused or permitted by the authorities, in particular, by the overall length of the proceedings and the authorities' attitude towards enforcement. It reiterated that effective respect for family life requires that the future relations between parents and children are not determined by the mere effluxion of time (see, among others, H. v. the United Kingdom).

In particular, the Court noted that it took the domestic courts thirteen months to decide on the matter (30 March 2008 to 4 May 2009). The Court has previously considered similar periods to be excessively long, in particular given the requirement of expedition which lies at the core of the Hague Convention procedure. The Court reiterated that the domestic authorities are under an obligation to process return applications expeditiously, including on appeal.

The Court concluded that in not giving sufficient reasons for the non-return order, in allowing for the procedure to last for thirteen months and in protracting the enforcement proceedings, the authorities failed to facilitate the expeditious and efficient conduct of the return proceedings. In sum, the applicant did not receive effective protection of his right to respect for his family life.

Accordingly there has been a violation of Mr Ferrari's Article 8 rights.

The Court awarded the applicant 7,500 euros in respect of non-pecuniary damage.

The case is here.