The custody and control of children are under Romanian law that of the parents and to those who the courts delegate this authority.
Parental authority involves both rights and obligations for the parents for the education and raising of children. The rule is that parental authority is exercised jointly by both parents, regardless of whether they are married or divorced. There is an exception according to which, for good reasons and in the best interest of the child the court may order that parental authority be exercised only by one of the parents.
In the situations where the parents do not get along there are a number of major consequences. The Romanian Civil Code establishes as rule the fact that a change regarding the child’s home and all other decisions concerning the child are made with the prior consent of the non-custodian parent. In case of disagreement on these issues, the court will decide based on the best interest of the child, taking into account the parents allegations and the conclusions of a psycho-social investigation report.
In the same manner decisions regarding the child’s travelling outside the country will be taken. Given the enforcement of the law regarding the free movement of people increasingly more children are involved in cases of international child abduction.
In Romania, according to Law no. 272/2004, regarding children protection it is prohibited the removal from the country of a child without the consent of both parents. This law states that the border authorities will allow exit from Romania for underage Romanian citizens if accompanied by an adult having a court decision as evidence that the child was entrusted to the person accompanying him or a decision stating the fact that this person has full parental authority. Such a decision can hinder the relationship between the other parent and the child.
This is where the 1980 Hague Convention regarding the Civil Aspects of the International Child Abduction applies. This was ratified in Romania through Law no. 100/1992 and also regulation (EC) no. 2201/2003 concerning the jurisdiction, recognition and enforcement of the decisions in matrimonial matters and matters of parental authority.
The 1980 Hague Convention is applied in all EU member states and covers children under 16 years of age who are moved from their regular domicile to another state, or remain in this second state. The movement or retention is made in breach of the parent who has custody. Such situations can when there is a dispute between the parents of the child and when one of them moves the child or retains it in another country without the other parents’ consent. According to the Convention the right to parental authority includes the right to decide where the child will have its residence.
Even when parents exercise their parental authority together they have common rights and obligations regarding the minor child, which means that one of the parents cannot decide unilaterally regarding the residence of the child. ‘Therefore, withholding, for example a child by one of the parent in a particular state, against the will of the other violates the provisions of the Convention.
The procedure to be followed in this situation requires the authority who has responsibility for children in their home domicile to intervene. The procedure provided for by the Convention is a brief procedure for the returning of the children wrongfully removed or illegally retained in another country other than the one that is the habitual residence of the child. Therefore, the competence on this matters belongs to the authority from the state of normal residence of the child.
The same Convention provides that such procedures must be followed within one year from the date the child was illegally retained in the non-resident state.
The provisions of Regulation no. 2201/2003 are directly applicable in member states of the European Union, except Denmark and prevails over national law. The regulation also prevails over 1980 Hague Convention to the extent that it relates to matters governed by this Regulation.
A court procedure regarding the return of the child should be taken promptly using the most expeditious procedures provided for by the national law.
Decisions in such situations are taken following the provisions of Law no. 272/2004 regarding the protection of children’s rights. The law provides for the child’s right to maintain parental relations with his parents and relatives. The child has the right to know his relatives and keep a connection with them, in the extent that this is not against his interest.
However, as noted above, Law no. 248/2005 has left a door open in the child’s protection system. We refer here to the provisions of article 30, paragraph (1), letter c) which allows one parent to leave the country if it has in his possession a final judgement that can prove the child was entrusted to the accompanying person or a decision certifying that this person has sole parental authority.
The European Court of Human Rights position on such cases increasingly is one of repeated condemnation. Therefore, the Court issued the following conclusion: ‘’authorities should take into account the interests, rights and freedoms of the child, in particular the higher interest of the child and in the event that the contact with the parents is likely to threaten those interests or to infringe those rights, national authorities must ensure the establishment of a relationship of proportionality between them.’’
Cases in which Romania was party such as Monory vs Romania and Hungary, Ignaccolo-Zenide vs Romania, Lafargue vs Romania represents important case law of the European Court of Human Rights by which were violated provisions on respect for privacy and family life, the right to a fair trial and to be conducted on a reasonable time, the right to an effective remedy, respecting the right of a parent to maintain access to the child.
Senior Associate Hammond, Minciu & Associates