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Abstract

The case concerns criminal proceedings under Article 379(1) of the Romanian Criminal Code, arising from the retention in Romania of a minor child whose habitual life and residence had been established in Italy. The child was born in Monza in 2011 and had lived in Italy with her mother, having been raised and educated there, including through early childcare and kindergarten, and having been enrolled to begin primary school in September 2017. By final Romanian civil judgments, parental authority was to be exercised jointly, but the child’s residence was established with the mother in Italy. The father was granted contact rights, including specific visitation periods and holiday contact.

The child initially came to Romania lawfully, with the mother’s consent, during the summer holiday and in the context of the father’s contact rights. The mother agreed that the child could remain with the father in Romania for an extended period, after the death of the father’s grandfather, on the understanding that the father would return the child to Italy by 7 September 2017, before the beginning of the school year. On that date, however, the father informed the mother that he would not return the child to Italy, claiming that the child wished to remain in Romania and that he had initiated proceedings for changing the child’s residence.

The mother then travelled to Romania and made repeated attempts to recover the child or at least maintain personal contact with her. The court recorded that the father avoided contact, refused to allow the mother to take the child, and imposed conditions on any interaction between mother and child. According to the evidence accepted by the court, the mother was often prevented from speaking to the child by telephone, visits were supervised and conditioned by the father, and the mother was instructed not to speak Italian with the child or to discuss the child’s home, school, friends or relatives in Italy. The court also recorded that the father used threatening and humiliating language towards the mother and that, even during the criminal proceedings, he stated that the judicial proceedings were useless and that no court could compel him to return the child.

Following the Romanian civil judgments establishing the child’s residence with the mother in Italy, the mother initiated enforcement proceedings in September 2017. Those efforts proved ineffective. The father failed to appear before the bailiff when summoned, and, when the bailiff attended his home together with the mother, police officers, and representatives of the competent child protection authority, the father opposed the return of the child and did not allow effective access to her, although he stated that she was inside the property.

The mother also initiated return proceedings under the 1980 Hague Convention. By judgment no. 1722 of 23 August 2018, the Bucharest County Court ordered the father to return the child to her habitual residence in Italy, with the mother, within ten days from service of the judgment. The court imposed a civil fine of RON 12,500 in the event of non-compliance, ordered the father to handover the child’s passport or travel document and to cooperate in obtaining a new one if necessary, supplemented his consent for the issuance of such a document in the event of refusal, authorised the mother to take the child personally or through a representative if the father failed to comply voluntarily, and ordered him to bear all costs associated with the child’s return.

The father’s main defence was that the child no longer wished to return to Italy and had adapted to life in Romania. The court rejected that defence. It held that the alleged will of a five-year old child could not be opposed to a final judicial decision establishing the child’s residence with the mother, especially in circumstances in which the child was young, emotionally influenceable and deprived of ordinary contact with the mother and the maternal family. The court considered the father’s account to be insincere and contradicted by the evidence, including the fact that he restricted discussions about Italy, prevented private communication between mother and child and refused to allow the bailiff to verify directly the alleged refusal of the child.

On the merits, the court found that, from September 2017 to November 2018, the father had retained the child in Romania without the mother’s consent and had prevented the mother from taking the child to her legally established residence in Italy. It held that the constituent elements of Article 379(1) of the Criminal Code were met. The court further found direct intent, reasoning that the father knew of the judicial obligations imposed on him, foresaw the danger created for the child’s upbringing and education, and deliberately pursued the continuation of that state of affairs.

Oradea District Court sentenced the father to three months’ imprisonment, to be served in detention. The court relied, in particular, on the duration of the conduct, the father’s persistent refusal to comply with judicial decisions, the restriction of the mother-child relationship, the abusive and humiliating conduct towards the mother, and what it described as an unusual degree of criminal perseverance. However, the court declined to impose a complementary penalty affecting parental rights, considering that the father had not been accused of physical violence against the child and that the child’s best interest required preservation of the legal possibility of parental authority being exercised by both parents.

The civil claim was also admitted. The father was ordered to pay EUR 5,000 in moral damages to the mother and the child, in addition to legal fees. The court held that the child had been abruptly removed from the environment in which she had lived since birth and from her affective relationship with the mother and maternal family, while the mother had been deprived for a significant period of ordinary contact with her child. The judgment remained subject to appeal within ten days from communication.