22 May The interpretation of “grave risk” under international law in a child custody dispute

In the case of O.C.I. and Others v. Romania (application no. 49450/17, 21.05.2019) the European Court of Human Rights has unanimously held that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

The case concerned the interpretation of “grave risk” under international law in a child custody dispute.

The applicants are Ms O.C.I. and her children, Romanian nationals. After spending the summer holidays in Romania in 2015, Ms O.C.I. decided not to go back to her husband in Italy with their children. The children’s father, an Italian national, brought proceedings for the return of the children to Italy, their habitual place of residence, under the Hague Convention on the Civil Aspects of International Child Abduction. Ms O.C.I. opposed the action, alleging that her husband was violent towards his children.

In 2016 the Romanian courts allowed the father’s application for the return of the children. The courts found that the children had been subjected to physical force by their father, but that there had only been occasional acts of violence which would not reoccur “often enough to pose a grave risk”. They also found that, in any case, the Italian authorities would be able to protect the children if the risk of abuse was brought to their attention.

The Court found that the Romanian courts had failed to give enough consideration to the grave risk of the applicant children being subjected to domestic violence when ordering their return to their father in Italy, which was one of the exceptions to the principle under international law that children should be returned to their habitual place of residence. Even if there was mutual trust between Romania and Italy’s child-protection authorities under EU law, that did not mean that Romania had been obliged to send the children back to an environment where they were at risk, leaving it up to Italy to deal with any abuse if it reoccurred.

References from the official website of the European Court of Human Rights