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Abstract

The case concerns criminal proceedings under Article 379(1) of the Romanian Criminal Code following the removal of a minor child from the United Kingdom to Romania by her father, without the mother’s consent. According to the factual findings of the court, the child, then aged approximately three years and four months, had her residence established with the mother by a judgment of the Basingstoke Hampshire court in the United Kingdom. The father’s rights were limited to contact rights, including specific visiting periods. During one such contact period, between 27 and 29 March 2020, the father failed to return the child to the mother and instead left the United Kingdom with the child, bringing her to Romania without the mother’s agreement.

After the child was brought to Romania, the mother initiated civil proceedings before Arad District Court, obtaining a judgment on 16 June 2020, final on 30 June 2020, by which the child’s residence was established at the mother. In parallel, following the involvement of the British authorities in relation to the international abduction of the child, Hague return proceedings were brought before the Bucharest County Court. By judgment no. 1163 from 28 September 2020, upheld by decision no. 754 from 7 December 2020 of the Bucharest Court of Appeal, the father was ordered to return the child to the mother within seven days from notification. The criminal courts recorded that the father had been informed of his obligations but continued to retain the child and to obstruct or avoid effective contact with the mother.

Several enforcement attempts were made, including on 31 July 2020, 10 August 2020, 16 December 2020, 29 December 2020 and 4 February 2021. During the enforcement procedures, the father kept the child in his arms, did not explain to her that she should interact with or return to her mother, and restricted the mother’s ability to approach or communicate with the child. On 4 February 2021, the mother was not allowed to interact with the child or even to have visual contact with her, the father taking the child in his arms whenever the mother attempted to approach. Witness evidence also indicated that the father verbally abused the mother, prevented her from entering the courtyard or seeing the child, and that the child, when allowed, sought visual contact with the mother and would have gone to her if not physically prevented.

The court also considered the father’s conduct after the commencement of criminal proceedings. When informed that he would be detained for 24 hours, the father allegedly instructed his own father not to allow anyone into the courtyard or the house, irrespective of whether they were police officers or representatives of the child-protection authority, and to call his brother in order to “fill the courtyard with lawyers”. After the defendant was placed under judicial control and prohibited from approaching or communicating with the child, the child remained at the defendant’s home with his father. The court recorded that, following the defendant’s instructions, the grandfather also refused to allow the mother, the police or child protection authority representatives to make contact with the child, although they had attended the address in order to take her.

The first-instance court considered that the alleged refusal of the child to return to the mother could not justify the father’s conduct. The court emphasised the child’s very young age and suggestibility, as well as the evidence indicating restriction of maternal contact, emotional pressure and possible parental alienation. It also distinguished the continuing retention of the child from punctual enforcement incidents and rejected the argument that earlier prosecutorial decisions concerning alleged resistance to enforcement barred the Article 379 prosecution.

The defendant also raised a ne bis in idem defence, relying on two earlier decisions not to prosecute, issued on 20 November 2020 and 19 March 2021, in files concerning alleged non-compliance with court judgments. The first instance court rejected that defence. It held that those prior cases concerned punctual acts allegedly committed during enforcement procedures, whereas the offence under Article 379(1) concerned a continuous course of conduct: the father’s retention of the child without the mother’s consent and his failure to return her despite the civil residence judgment and the Hague return order.

On the merits, the first instance court found that the defendant’s conduct fulfilled the constituent elements of Article 379(1) of the Romanian Criminal Code. It held that the father had retained the child without the mother’s consent, despite the domestic civil judgment establishing the child’s residence with the mother and despite the Hague return judgment delivered by the Bucharest County Court. The defendant was therefore convicted and sentenced to a criminal fine of 150 day-fine units, each of RON 40, amounting to RON 6,000.

The appellate court maintained the first-instance conviction, altering only the amount of the fine to reflect deduction of one day-fine for the defendant’s prior 24-hour detention.