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Family Law

The leading authority on all aspects of family law

10 JUN 2008

ABDUCTION: Deak v Romania and the UK

(European Court of Human Rights; 3 June 2008)

The mother and father were divorced, the child, then 1 year old, remaining with the mother. When the child was 4 years old, the mother removed the child from Romania to England without the father's knowledge or consent; the father sought the immediate return of the child under the Hague Convention. The mother's case was that the removal had not been wrongful, in that the father had had no custody rights. The English court sought determination of that issue from Romania. After 2 years of proceedings in Romania, the final ruling from the Romanian courts was that the removal had not been wrongful, because the father's rights had not amounted to rights of custody. The English court did not consider itself bound by that ruling, and ordered jointly instructed expert evidence on the issue. In the event the expert concluded that the father had held rights of custody, and the English court ordered the immediate return of the child under the Convention. The House of Lords allowed the mother's appeal and refused to return the child to Romania, criticising the decision to involve experts once the Romanian court had made a final ruling, with a consequent delay in proceedings. Throughout the proceedings the father had had limited supervised contact with the child in England. The father claimed that there had been a number of breaches of his human rights, including failure to give him adequate access to his child, and unreasonable length of proceedings.

There had been no breach of Art 8 of the European Convention on Human Rights; the father had had contact with the child during the English proceedings and had neither applied to the English courts for an extension of his rights, nor applied for enforcement of the Romanian contact order until after the English proceedings were over. The English proceedings had been largely dependent on the conclusion of the Romanian proceedings, and in that context, given the complexity of the case and the father's own actions, had not been unreasonably long. The delay associated with the instruction of an expert was not so important as to render the overall duration of proceedings unreasonable, particularly given the father had requested the expert's involvement in his own interest. However, the length of the Romanian proceedings did give rise to concerns, given that Hague Convention cases were urgent and required special expediency; most importantly, there had been a 9 month period in which there had been no developments of any kind in the Romanian courts.

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