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Family Law

The leading authority on all aspects of family law

06 OCT 2011

RESIDENCE/HUMAN RIGHTS: Diamante and Pelliccioni v San Marino (App No 32250/08)

(European Court of Human Rights; 27 September 2011)

The mother was Italian and the father was San Marinese. Their child had dual nationality and initially stayed with the mother in San Marino. The San Marinese court granted sole custody to the mother and gave the father visiting rights.  The mother moved to Italy with the child.  When the father had issues with contact, the San Marinese court ordered joint custody on the basis that the child was to remain with the mother in Italy. After months of ongoing contact problems the San Marinese court ordered that the child was to live with the father in San Marino with contact with mother.  The child was taken to San Marino by the father without the mother's permission. The mother thereafter had supervised contact with the child. Both parents brought several sets of parallel proceedings against each other for kidnapping. The mother and child complained that care and custody proceedings in San Marino had violated their rights under Art 8. The courts had persistently reiterated the best interests of the child and had reasonably considered it necessary for the protection of the child's interests. Awarding residence to the father was not manifestly arbitrary or unfair. The court had to determine whether the decision-making process as whole had provided the mother with the requisite protection of her interest.  She had been represented by counsel throughout and had an opportunity to present her arguments. Held that there was no violations of human rights.

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