FOURTH SECTION
 
 
 
 
 
 
 
CASE OF R.I. AND OTHERS v. ROMANIA
 
(Application no. 57077/16)
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
4 December 2018
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of R.I. and Others v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Paulo Pinto de Albuquerque, President,
 Egidijus Kūris,
 Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 13 November 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 57077/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 September 2016 by Ms R.I., who is also acting on behalf of her two children, M.I. and I.I. (“the applicants”). They are all Romanian nationals. The Court decided of its own motion to grant the applicants anonymity pursuant to Rule 47 § 4 of the Rules of Court. 2. The applicants were represented by Ms D. Hatneanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. On 24 February 2017 the Government were given notice of the application. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background of the case
4. The first applicant, Ms R.I., was born in 1975 and lives in Bucharest. She was in a stable relationship with R. She had two children with him: the second applicant, M.I., born in 2006, and the third applicant, I.I., born in 2009. In 2010, the relationship broke down and R. moved out of the family home. The parents agreed that the children would remain with the first applicant, in their family home. The parents also decided that R. would have unrestricted access to the children and would play an active role in their education. 5. On 28 October 2013 the children and their maternal grandmother were involved in a traffic accident, as a result of which only the grandmother needed medical care and attention. In November R. took the children from the first applicant’s home without her consent. According to the first applicant, from that time until May 2014, she managed to see the children only occasionally and always in their father’s presence. After 5 May 2014 (see paragraph 9 below) contact between them became even more scarce, and after 6 June 2014 (see paragraph 11 below) all contact stopped. 6. On 25 November 2013, the first applicant instituted custody proceedings against R. before the Bucharest District Court (see paragraph 26 below). At the same time she applied for an interim injunction (ordonanţă preşedenţială), seeking to have the children’s residence set at her place during the custody proceedings (see paragraph 9 below). 7. On 20 December 2013 the first applicant also brought the situation of the second and third applicants to the attention of the Bucharest Directorate General for Social Welfare and Child Protection (“the Bucharest child protection authority”). She feared that they were showing signs of emotional abuse caused by their father. 8. In two official reports of 21 January and 5 February 2014, the Bucharest child protection authority observed that the children were well taken care of, were enjoying optimal conditions at their father’s home, and manifested affection towards their father and his new partner. The reports concluded that no signs of abuse had been identified. The experts noted, however, that the children experienced a considerable degree of anxiety and distress because of the conflicts between their biological parents. They recommended counselling. B. Enforcement of the interim injunction of 5 May 2014
9. Deciding in the interim proceedings (see paragraph 6 above), in a final decision of 5 May 2014 the Bucharest County Court ordered that the children should reside with their mother and that R. should pay monthly child support of 1,000 euros (EUR) for each child until the end of the custody proceedings. 10. On 4 June 2014 the first applicant applied to the bailiff’s office for enforcement of the decision of 5 May 2014. Her request was approved by the bailiff on 6 June 2014 and by the Bucharest District Court on 16 June 2014. 11. On 6 June 2014 the first applicant went to the children’s school to pick them up and take them home. R. showed up as well and became abusive towards the first applicant. The police had to intervene. The first applicant was unable to take the children home. Advised by the school administration, she returned on 9 June to pick them up, but on that day the children were absent. 12. On 13 June 2014 the first applicant wrote to the Bucharest child protection authority to ask for help, but the authority could not intervene as the father was not found at home. 13. In a letter of 26 June 2014 the bailiff asked R. to comply with the court order and to return the children to their mother within ten days. As he failed to comply, the bailiff summoned him to bring the children on 17 July 2014 to the bailiff’s office, where the first applicant, two police officers and representatives of the Bucharest child protection authority would be present. R. and the children did not attend. 14. On 4 August 2014 the first applicant contacted the Bucharest child protection authority again and complained that R. was manipulating the children into fearing and rejecting her, and was forbidding any contact between her and her children. She also informed the authority about the incident of 6 June 2014 (see paragraph 11 above). The authority could not verify her allegations as R. was not at home and did not contact the authority, despite being invited to do so. 15. The bailiff scheduled a second meeting for 14 August 2014. This time, R. went with the children. As noted by the bailiff in his report drafted on the same day, the children refused in absolute terms to return to their mother. They alleged that she used to shout at them and had occasionally beaten them when they had lived together. The enforcement could not take place. 16. Following the meeting of 14 August 2014, on 9 September 2014 the Bucharest child protection authority asked the Bucharest District Court to order a two-month psychological counselling programme for the children, under the provisions of Article 912 of the Code of Civil Procedure (psychological counselling for children who refuse contact with the estranged parent). The first applicant contacted the child protection authority with a similar request on 16 and 19 September 2014. On 2 October 2014 the District Court allowed the request made by the Bucharest child protection authority. 17. Between 7 November 2014 and 2 January 2015, a psychologist met the children and their parents ten times. On 22 January 2015, she drafted a final report, recommending as follows:
“Bearing in mind the numerous relationship problems identified, I consider it opportune to recommend an immediate[1] clinical psychological evaluation of the children and the parents, of the current relations between them, as well as their continued psychological counselling.”
18. On 28 January 2015 the first applicant contacted the Bucharest child protection authority again and explained that the behaviour exhibited by the children during their recent encounter made her fear that they were suffering from parent alienation syndrome because of their father’s influence over them. 19. Acting upon the first applicant’s request, a social assistant from the Bucharest child protection authority interviewed the children. On 17 February 2015 he drafted his report, finding that the children refused to see their mother because allegedly she used to beat them and be mean to them. The social assistant asked the father to take the children for a psychological evaluation. He also sent his report to the Bucharest child protection authority’s service for violence against children. 20. On 14 May 2015 the Bucharest child protection authority drafted a two-month plan for the rehabilitation of the two children “with the aim of ensuring their harmonious physical and psychological development and protecting their dignity and their best interests”. The plan required cooperation between the social assistant responsible for their case, a psychologist, the school administration and the two parents. 21. On 30 June 2015 R. complained to the Bucharest child protection authority that the psychologist had put pressure on the children and induced a state of stress which had required the children’s hospitalisation after one of their meetings. He demanded to know on what grounds the children continued to be subjected to psychological counselling. 22. Acting upon an application made by the first applicant (asigurarea probelor), on 7 July 2015 the Bucharest District Court requested a psychological evaluation of the children and their parents. After meeting with them on several occasions between 13 August and 30 October 2015, the psychologist rendered a report on 17 November 2015. She found that there was no indication of physical abuse from the mother but that there was an indication of psychological abuse in the form of parental alienation exercised by the father. The relevant parts of the report read as follows:
“(1)  During the expert evaluation there was no relevant information from the children that would confirm the existence of physical abuse by their mother. The evaluation only highlighted the children’s and their father’s statements as well as the resistance of both children in relation to their mother. (2)  Because they are involved in the parental conflict, the children exhibit emotional and behavioural indicators frequently associated ... with psychological abuse. ... (3)  There are ... several symptoms of parent alienation syndrome, in particular in respect of [the second applicant]. ... In particular concerning underage children, the father’s behaviour corresponds to the profile of the ‘alienator parent’ who behaves in this manner out of a genuine conviction that he can protect and care for the children better than their mother. His behaviour may also be connected to a profound aversion to, and hostility towards, the children’s mother, which has more to do with the relations between the adults than with their parenting abilities. According to the specialised literature, the alienated parent also plays a role in losing his or her ties with the child. It appears from the information offered during the interview by Mrs [R.I.] that she has experienced occasional doubts and insecurities concerning her maternal role which might have undermined her relationship of secure attachment with her children in their early childhood. Recommendations
1. It is recommended that the parents undertake psychological counselling, in order to receive assistance in finding methods of cooperation for the present and future well-being of their children. ... Parents must be aware that parental alienation has negative consequences for the children’s development; without specialised intervention and the conscious participation of both parents, children can develop emotional or behavioural problems. 2. It is recommended that the two children be no longer involved in the conflict between the parents. Their exposure to the parental conflicts has had a traumatising effect on them and left painful marks in their emotional development.”
23. On 23 November 2015, the first applicant asked the bailiff to resume the enforcement proceedings. New meetings were convened for 7 and 23 March 2016 in the bailiff’s office. R. and the children did not appear. 24. On 18 December 2015 the first applicant contacted the Bucharest child protection authority again and reiterated her fears that the children’s father was alienating the children from her. 25. R. contested the enforcement proceedings, but on 9 November 2016 the Bucharest District Court dismissed his complaint. An appeal lodged by him was also dismissed in a final decision of the Bucharest County Court on 18 September 2017. C. Enforcement of the custody order of 24 September 2014
26. On 24 September 2014 the Bucharest District Court decided on the application for custody (see paragraph 6 above). It granted the mother physical custody of the children and ordered R. to pay child support of 5,000 Romanian lei (RON – approximately EUR 1,100 at the relevant time) per month until the children reached the age of majority. R. appealed, but on 18 January 2016 he informed the Bucharest County Court that he did not wish to maintain his appeal. The first applicant appealed on points of law, arguing that the County Court had unlawfully reduced the award for costs. In a final decision of 2 June 2016 the Bucharest Court of Appeal rejected her appeal as inadmissible. 27. On 27 July 2016 the first applicant applied for enforcement of the decision of 24 September 2014 on the payment of child support and legal costs. On 19 August 2016 the first applicant asked the bailiff to extend the enforcement order to the return of the children. Her request was granted by the bailiff’s office on 8 September 2016 and by the Constanţa District Court on 20 September 2016. 28. In March 2017 R. informed the authorities that he had moved with the children to Năvodari, Constanţa County, where they would be spending weekends and school holidays. The Constanţa Directorate General for Social Welfare and Child Protection (“the Constanţa child protection authority”) visited R. and the children in the new location and kept in touch with the Bucharest child protection authority. R. informed the Constanţa child protection authority that he was willing to pursue counselling for his children in Năvodari and reiterated that he had not prohibited the first applicant from seeing the children. 29. On 7 March 2017, the Constanta District Court partially allowed R.’s opposition to the enforcement, finding that he had complied in full with the obligation to provide for the children since they lived with him and that he could not be asked, in addition, to pay child support in their favour. 30. In August 2017 the first applicant reinitiated the enforcement proceedings in respect of the return of the children, but on 12 September 2017 R. appealed against the enforcement order. On 19 September 2017 R. sought a stay of the enforcement, pending the outcome of his appeal; his request was granted by the Constanţa District Court on 25 September 2017. On 8 May 2018 his appeal was dismissed by a final decision rendered by the Constanţa County Court and the decision was notified to the first applicant on 31 May 2018. 31. On 18 July 2018 the applicants’ representative informed the Court that on 16 July 2018 the applicants and R. had met in the bailiff’s office. The children had refused in absolute terms to move in with their mother. D. Criminal investigations
32. Meanwhile, the first applicant had lodged a criminal complaint against R., accusing him of disobeying the court order concerning the custody arrangements. On 17 June 2014 the police started investigating the case under the supervision of the prosecutor’s office attached to the Bucharest District Court. 33. On 16 August 2016 the first applicant asked the prosecutor to extend the investigation to also cover allegations of ill-treatment of minors, arguing that R. was subjecting the children to psychological abuse. In a decision of 28 June 2016 the prosecutor’s office refused her request on the grounds that no evidence of ill-treatment had been found. On 10 October 2016 an objection lodged by the first applicant was dismissed by the prosecutor‑in‑chief and on 13 October 2016 the Bucharest District Court’s preliminary chamber rejected as inadmissible a complaint lodged by the first applicant against the prosecutor’s decisions. E. Attempts to change the custody arrangements
34. On 17 August 2016 R. had applied for physical custody of the children. On 20 March 2017 the Bucharest District Court decided that the children should live with their father. It based its judgment on the fact that the children had been living with him for the past three years and that he represented the only parental figure in their life. A sudden change in their life would cause them more distress. Based on the conclusions of the expert report of 17 November 2015 (see paragraph 22 above), the court noted that the children felt uncomfortable in their mother’s presence and refused to move in with her, preferring their father’s presence. The court also noted that the first applicant had never been prevented from visiting them, but had chosen not to and had instead demanded that the children be returned to Bucharest. The court further observed that the first applicant had not sought enforcement of the custody order, limiting her request to the enforcement of the child-support allowance and costs. It concluded that it would be in the children’s best interests to remain with their father. It advised the parents to put an end to their conflict for their children’s sake and to allow the mother‑children relationship to be rebuilt. 35. The first applicant became aware of the content of that decision on receiving the Government’s observations in the case (sent to her by the Registry of the Court on 28 July 2017). At her request, she was notified of the decision on 1 September 2017. On 7 September 2017 she lodged an appeal against it. 36. In a final decision of 24 April 2018 the Bucharest County Court allowed the appeal, quashed the previous decision and dismissed R.’s request to be granted physical custody of the children. It found as follows:
“... the [first applicant] is not at fault in the non-enforcement of decision no. 590A/5 May 2014, in so far as the Romanian State had a positive obligation to urgently take all necessary legal measures in order to protect the [first applicant]’s right to family life, by immediately returning the children to their mother’s home, in order to avoid the parental alienation exhibited by the children towards the [first applicant]. Therefore, by penalising [the first applicant] with losing the possibility of having her children live with her, for circumstances for which she is not responsible, ... would affect the substance of her right of access to a court and [the right] to respect for her family life. ... The court notes that the first-instance court’s decision to set the children’s home with their father on the grounds that they were attached to him by strong affection and that they refused to communicate with [the first applicant], is the direct consequence of the non-enforcement of decision no. 590A/5 May 2014. [R.] had a real possibility to influence the children to see their mother as a stranger, as a danger to the father‑children family relationship, and as a danger to their health. ... The break of the family ties between the mother and her children will without any doubt become permanent if the children are to live with their father, and therefore any visiting programme for the mother and the children will be illusory and formal in so far as the mother was unable to obtain the enforcement of a final decision for more than four years and as during that time she practically could not even speak with the children.”
II. RELEVANT DOMESTIC LAW
37. For the relevant provisions of the Code of Civil Procedure in force at the time of the facts, see Niţă v. Romania ([Committee], no. 30305/16, §§ 27-30, 3 July 2018). THE LAW
I. ON THE FIRST APPLICANT’S STANDING TO ACT ON HER CHILDREN’S BEHALF
38. Although there has been no objection on the part of the Government in this regard, the Court finds it relevant to reiterate that, in principle, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities, and who claims that their decisions and conduct are not consistent with the rights guaranteed by the Convention. In the event of a conflict over a minor’s interests between a natural parent and a person appointed by the authorities to act as the child’s guardian, there is a danger that some of those interests will never be brought to the Court’s attention and that the minor will be deprived of effective protection of his or her rights under the Convention (see M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012). 39. In the case at hand, the first applicant was granted physical custody of her children (see paragraphs 26 and 36 above). Therefore she is authorised under the domestic law to act on their behalf and is suited to protect their rights under the Convention.

Article of the Convention at issue: Article 8
Outcome: violation