AFFAIRE

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Nom de l'affaire

LaFargue v. Romania, Application No. 37284/02

Référence INCADAT

HC/E/RO 868

Juridiction

Nom

Cour européenne des Droits de l'Homme

Degré

Cour européenne des droits de l’homme (CourEDH)

États concernés

État requérant

France

État requis

Roumanie

Décision

Date

13 July 2006

Statut

Définitif

Motifs

Droit de visite - art. 21 | Questions procédurales

Décision

-

Article(s) de la Convention visé(s)

21

Article(s) de la Convention visé(s) par le dispositif

-

Autres dispositions
Art. 8 CEDH
Jurisprudence | Affaires invoquées

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Publiée dans

-

INCADAT commentaire

Droit de visite / droit d’entretenir un contact

Droit de visite / droit d’entretenir un contact
Protection du droit de visite

Relation avec d’autres instruments internationaux et régionaux et avec le droit interne

Convention européenne des Droits de l’Homme (CEDH)
Jurisprudence de la Cour européenne des Droits de l'Homme (CourEDH)

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The application related to a boy born in May 1995 to a French father and Romanian mother. In November 1997 the parents divorced and the mother was awarded care of the child. On 16 December 1999 a Bucharest court of first instance awarded the father a right of access comprising a week of contact during the winter holidays and two weeks during the summer vacation. This decision was challenged but was finally confirmed by the Bucharest Court of Appeal on 3 May 2000.

The father made repeated attempts from 2000 - 2004 to have the access order enforced. This involved making repeated visits to the home of the mother with a bailiff, or having the mother summoned to appear at the offices of the bailiff. On these occasions the mother either did not appear or refused, for a variety of reasons, to produce her son.

In addition, the father sought to rely on Article 21 of the Hague Convention. The French Ministry of Justice wrote to its Romanian counterpart, as central authority, in June 2002. In August 2004 the Romanian Ministry of Justice commenced proceedings to put in place a contact regime.

On 17 December 2004, due to delays, an application was made for a provisional ruling in the matter. On 24 January 2005 a Bucharest first instance court awarded the father access on alternate weekends. Several unsuccessful attempts were made at enforcing this order during 2005.

The father made several attempts to seek redress through the criminal courts but on each occasion these were rejected, although on one occasion the mother was levied with an administrative fine of €160. The father filed a petition with the European Court on 25 September 2002.

Ruling

The Court ruled unanimously that Romania had breached Article 8 of the ECHR in failing to take adequate measures to ensure respect for the father's right of access over a period of 6 years. The Court also made an award of compensation to the father under Article 41 of the ECHR.

Grounds

Rights of Access - Art. 21

The Romanian government argued that the Convention was not applicable in the present proceedings given the case related to rights of access and not of custody. Nevertheless it also argued that it had instituted proceedings in May 2004 on behalf of the father and that a provisional access timetable was set down in a judgment of January 2005. The Court did not specifically consider the role of Article 21 of the Hague Convention in its judgment. However, it did reiterate that the positive obligations imposed on States by virtue of Article 8 of the ECHR had to be interpreted in the light of the Hague Convention.

Procedural Matters

The Court noted that it was only at the start of 2005, after the Romanian authorities had been notified of the present proceedings, that the father had been able to see his son. The Court stated that these meetings showed the State did possess the means to facilitate the father's right of access. The Court rejected the argument of the State that the father bore responsibility by failing to initiate proceedings to have the mother subjected to a fine for non-compliance. The Court held that such a step would have been inadequate and was in any event an indirect and exceptional method of enforcement. The Court further held that the inaction of the father did not relieve the authorities of their obligations in the matter. It drew attention to the fact the mother had only been subjected to one very limited fine after 6 years of non-compliance with the access order. The Court ruled that the Romanian authorities had failed to deploy adequate and sufficient measures to ensure respect for the father's right of access over a period of almost six years and as a consequence his right to family life had been breached. DAMMAGES The father was awarded €15000 in respect of non-pecuniary damage and €7400 in respect of costs and expenses.

INCADAT comment

Protection of Rights of Access

Article 21 has been subjected to varying interpretations.  Contracting States favouring a literal interpretation have ruled that the provision does not establish a basis of jurisdiction for courts to intervene in access matters and is focussed on procedural assistance from the relevant Central Authority.  Other Contracting States have allowed proceedings to be brought on the basis of Article 21 to give effect to existing access rights or even to create new access rights.

A literal interpretation of the provision has found favour in:

Austria
S. v. S., 25 May 1998, transcript (official translation), Regional civil court at Graz, [INCADAT cite: HC/E/AT 245];

Germany
2 UF 286/97, Oberlandesgericht Bamberg, [INCADAT cite: HC/E/DE 488];

United States of America
Bromley v. Bromley, 30 F. Supp. 2d 857, 860-61 (E.D. Pa. 1998). [INCADAT cite: HC/E/USf 223];

Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich. 2000);

Janzik v. Schand, 22 November 2000, United States District Court for the Northern District of Illinois, Eastern Division, [INCADAT cite: HC/E/USf 463];

Wiggill v. Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003);

Yi Ly v. Heu, 296 F. Supp. 2d 1009, 1011 (D. Minn. 2003);

In re Application of Adams ex. rel. Naik v. Naik, 363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005);

Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005), [INCADAT cite: HC/E/USf 828];

Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), [INCADAT cite: HC/E/USf 827]. 

In Cantor, the only US appellate decision on Article 21, there was a dissenting judgment which found that the US implementing act did provide a jurisdictional basis for federal courts to hear an application with regard to an existing access right.

United Kingdom - England & Wales
In Re G. (A Minor) (Enforcement of Access Abroad) [1993] Fam 216 [INCADAT cite: HC/E/UKs 110].

More recently however the English Court of Appeal has suggested that it might be prepared to consider a more permissive interpretation:

Hunter v. Murrow [2005] [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].

Baroness Hale has recommended the elaboration of a procedure whereby the facilitation of rights of access in the United Kingdom under Article 21 could be contemplated at the same time as the return of the child under Article 12:

Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51[INCADAT cite: HC/E/UKe 880].

Switzerland
Arrondissement judiciaire I Courterlary-Moutier-La Neuveville (Suisse) 11 October 1999, N° C 99 4313 [INCADAT cite: HC/E/CH 454].                        

A more permissive interpretation of Article 21 has indeed been adopted elsewhere, see:

United Kingdom - Scotland
Donofrio v. Burrell, 2000 S.L.T. 1051 [INCADAT cite: HC/E/UKs 349].

Wider still is the interpretation adopted in New Zealand, see:

Gumbrell v. Jones [2001] NZFLR 593 [INCADAT cite: HC/E/NZ 446].

Australia
The position in Australia has evolved in the light of statutory reforms.

Initially a State Central Authority could only apply for an order that was ‘necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia', see:

Director-General, Department of Families Youth & Community Care v. Reissner [1999] FamCA 1238, (1999) 25 Fam LR 330, [INCADAT cite: HC/E/AU 278].

Subsequently it acquired the power to initiate proceedings to establish access rights:

State Central Authority & Peddar [2008] FamCA 519, [INCADAT cite: HC/E/AU 1107];

State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].

European Court of Human Rights (ECrtHR) Judgments