How Much Is Enough? – The Interpretation of „Grave Risk” in an International Child Custody Dispute
One of the most difficult aspects of divorce is making arrangements for the children of the marriage; their well-being and habitat are rarely easy decisions. This is made infinitely more difficult if the parents are citizens of different countries. With the rising number of international families, now estimated at 16 million, cross-border disputes on family matters have increased in the EU. There are about 140,000 international divorces per year in the EU and around 1,800 cases of parental child abduction within the EU every year.
On 21 May 2019, in the case of O.C.I. and Others v. Romania (application no. 49450/17), the European Court of Human Rights has held that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the interpretation of „grave risk” under international law in a child custody dispute.
The circumstances of the case – an atypical summer story
The first applicant, Ms O.C.I., a Romanian national, married P.L.R., an Italian national in 2005. The couple lived together in Italy, where O.C.I. gave birth to their children: the second applicant, P.A.R., in 2008, and the third applicant, N.A.R., in 2010 (they are Romanian nationals and also hold Italian nationality). After spending the summer holidays in Romania in 2015, Ms O.C.I. decided not to go back to her husband in Italy with their children. She said that she saw no future for them there. Moreover, she told P.L.R. that he was a bad father who mistreated his children.
The children’s father lodged a criminal complaint against his wife in Italy for child abduction in a foreign country (2015). He also brought proceedings for the return of the children to Italy, their habitual place of residence, under the Hague Convention on the Civil Aspects of International Child Abduction (2015). In his view, the mother had unilaterally changed the children’s residence which, he argued, constituted wrongful retention. Ms O.C.I. opposed the action, alleging that her husband was violent towards his children. He beat them if they disobeyed and humiliated them by calling them names. She submitted several video recordings of such violent episodes, recorded during their common life in Italy. She had encouraged her husband to seek medical help for his behaviour, but he had refused; the abuse had worsened in recent years and she had felt obliged to seek refuge in Romania. She also explained that the children had become integrated in their new environment and refused to speak with their father, they feared going back to Italy and being again subject to abuse. Moreover, she faced criminal investigations in Italy which constituted additional stress.
The Bucharest County Court allowed the father’s application for the return of the children (2016). The court concluded that the mother had influenced the children against their father. It also considered that her decision to leave Italy had been made because of marital problems and because of her own dissatisfaction. As for the allegations that the children ran a grave risk of being exposed to physical or psychological harm at their father’s hands, it found as follows: „The evidence in the file proves without doubt that the father used physical force and a raised voice to discipline his children. [P.L.R.] confirmed this in his statement before the court. The child has the right to respect for his dignity, which entails prohibition under any circumstances of any act of physical or psychological violence against the child. It is therefore evident that nothing can justify a departure from this norm.”
The first applicant appealed, and in a final decision the Bucharest Court of Appeal upheld the order to return the children (2017). The court found that the children had been subjected to physical force by their father, but that there had only been occasional acts of violence which would not reoccur „often enough to pose a grave risk” (under Article 13 § 1 (b) of the Hague Convention, as grounds for an exception to the principle of returning children to the place of their habitual residence). The Court of Appeal also considered that the existence of criminal proceedings against the first applicant in Italy did not constitute grounds for refusing the return. In fact, the Court reasoned, in accordance with the European arrest warrant procedure, a criminal sentence would have the same effect regardless of whether the first applicant lived in Romania or Italy. They also found that, in any case, the Italian authorities would be able to protect the children if the risk of abuse was brought to their attention. However, the authorities have so far not been able to enforce the return order because the children have refused to go back to Italy. The applicants are all still apparently living in Romania.
Decision of the Court – enough is enough...
The application was lodged with the European Court of Human Rights on 23 June 2017. Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private and family life) of the European Convention, the applicants complained about the order to return the children to Italy. They alleged in particular that the Romanian courts had failed to take into account the „grave risk” that they would be subject to physical or psychological harm at the hands of their father (Article 8), which was one of the exceptions under the Hague Convention to the principle that children should be returned to their habitual place of residence. For the same reasons, the applicants considered that, in failing to protect the children against the risk of abuse, the authorities had breached their positive obligations (enshrined in Article 3) to secure a safe environment for the children, free from domestic violence and corporal punishment.
The Government said that the domestic courts had examined the allegations of a „grave risk” as defined by the Hague Convention. Those courts had neither tolerated nor accepted domestic violence and had moreover reiterated in their decisions that emotional abuse of children was prohibited. Their decision to return the children to their father had been based on the assumption that the Italian system was equally capable of protecting the children’s rights.
The Court highlighted that corporal punishment could not be tolerated and States should strive to prohibit it in law and practice. The law in Romania laid down an absolute prohibition on domestic corporal punishment. However, the court statements in the applicants’ case, namely that the violence had only been occasional and would not reoccur „often enough to pose a grave risk”, ran counter to that prohibition.
The Court assessed whether the allegations of „grave risk” raised by the first applicant before the domestic courts were genuinely taken into account by those courts. Indeed, even though the domestic courts had found that the children had been abused by their father, as substantiated by video recordings and admitted by the father himself in court, they had not weighed up that information in considering the children’s best interests. Moreover, the courts had not considered whether the children were no longer at risk of being violently disciplined by their father if returned to his care. In fact, it can be inferred from the reasoning of the Bucharest Court of Appeal that the court accepted that if such a risk reoccurred, the Italian authorities would be able to react and to protect the children from any abuse of their rights, but only „if the risk was brought to their attention and supported by evidence”
On that point, the Court noted that even if there was mutual trust between Romania and Italy’s child-protection authorities under EU law (the Brussels II bis Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States; see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018), that did not mean that the State to which the children had been wrongfully removed has been obliged to send them back to an environment where they ran a grave risk of domestic violence – solely because it was their habitual place of residence –, leaving it up to Italy to deal with any abuse if it reoccurred.
In this connection, the Court highlighted that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the obligation to return the child (see Anghel v. Italy, no. 5968/09, § 79, 25 June 2013). The Court found that the domestic courts should have given more consideration to the risk of the children being ill-treated if returned to Italy. They should have at least ensured that specific arrangements were made in order to safeguard the children. In the light of the above, the Court concluded that the domestic courts had failed to examine the allegations of „grave risk” in a manner consistent with the children’s best interests. There had therefore been a violation of Article 8 of the Convention.
Lastly, the Court held that the applicants’ allegations of inhuman and degrading treatment had already been examined under Article 8 and so no separate issues arose under Article 3. The Court held that Romania was to pay, jointly, to the applicants 12,500 euro (EUR) in respect of non-pecuniary damage and EUR 3,645 to Ms O.C.I. in respect of costs and expenses.
For a list of references, click HERE.
Author: Petra Ágnes Kanyuk, PhD student, University of Debrecen, Faculty of Law