ECHR judgment of 18 February 2020 in the case of Cinta v. Romania (application no. 3891/19).
In 2019, the applicant was assisted in preparing the application. The application was subsequently communicated to Romania.
The case successfully examined the application about the restriction of the applicant's right to communicate with the child in connection with the applicant's mental disorder without assessing the consequences of such restriction on his ability to take care of the child or for the child's safety. The case violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 14 of the Convention in conjunction with Article 8 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The complaint concerned the restrictions imposed on the applicant's rights to communicate with his four-year-old daughter by the Romanian courts during the divorce and child custody proceedings. The applicant submitted that the schedule of meetings with his daughter, according to which he could not meet with her more than twice a week for two hours in the presence of his mother, prevented him from developing a personal relationship with her and effectively participating in her education. He also insisted that his mental illness played a significant role in the decision to apply the restriction to him, although no evidence was presented to the courts that he posed a threat to his daughter's well-being.
QUESTIONS OF LAW
Compliance with Article 8 of the Convention. The decisions taken by the Romanian courts on the applicant's communication with the child resulted in an interference with the applicant's right to respect for his family life, which was provided by law and pursued the legitimate aim of protecting the rights of others.
No evidence was presented to support the claim that the applicant was not capable of caring for his daughter or posed a threat to her. More importantly, the Court was unable to understand what evidence the applicant could have submitted to prove to the Romanian courts that his mental state did not endanger his daughter's safety. In assessing the applicant's mental health, the courts did not refer to any recent expert reports. This circumstance significantly limited the factual assessment of the applicant's vulnerability and mental state and his ability to care for the child at the time relevant to the circumstances of the present case.
Moreover, the decisions of the Romanian courts did not provide any explanation as to how they established or assessed the best interests of the child. It was unclear if they considered and attempted to mitigate the potential distress the child might have experienced as all contact with the father took place in the presence of both parents, despite their conflicts at the time. There was no evidence to show how the child benefited from these meeting conditions. Romanian courts have not considered alternative means such as, for example, communication under the supervision of a representative of the child protection authority.
The domestic courts did not sufficiently verify the allegations that the girl suffered as a result of her father's actions. The child was questioned by a judge in camera, in the absence of an expert psychologist from the child protection authority. It was not clear from the court decisions to what extent the child's allegations of negative behavior by the father were taken into account, whether the scheduling of the meetings had been drawn up with this threat in mind, and if so, how. The assessment of the threat, or lack thereof, to the child appeared to be in conflict with the very prohibition of domestic violence against children, which was absolutely prohibited in domestic law, and cast a shadow on the decision-making process.
Romanian courts acted quickly, over three and a half months, as required in cases involving children's rights. However, the urgency of the proceedings was not to be achieved at the expense of the quality of the courts' assessment of all relevant evidence.
In general, the process of making the controversial decision did not provide a proper assessment of the applicant's current state of health and consideration of all opinions and interests. The procedure was not accompanied by guarantees that were commensurate with the severity of the interference and the seriousness of the interests at stake.
RESOLUTION
There was a violation of Article 8 of the Convention in the case (adopted unanimously).
With regard to compliance with Article 14 of the Convention in conjunction with Article 8 of the Convention. The presence of a mental illness can be taken into account when assessing a parent's ability to care for a child. However, referring to mental illness as a crucial element, or even as one of many elements, may constitute discrimination if, in the particular circumstances of the case, the mental illness has not affected the parent's ability to care for the child. In accordance with international standards, persons with mental illness should receive adequate assistance from the state in fulfilling their parenting responsibilities, and children should not be separated from their parents without proper judicial supervision.
In the present case, although the applicant's mental illness was not the only element taken into account by the Romanian courts, it was taken into account at all stages of the decision-making process. The influence of this illness on the assessment of the applicant's allegations was a decisive factor and led to the decision to restrict the applicant's contact with the child. Thus, the applicant was faced with a difference in treatment compared to other parents requiring the restoration of contact with their children. This distinction was based on the state of his mental health, that is, it was drawn on a “different basis”. The Court had to check whether the Romanian authorities had adduced sufficient grounds for the applicant's mental illness to be taken into account in assessing the circumstances of the case. The applicant was viewed as a threat to his daughter due to his mental illness without further analysis of the specific circumstances of the case and the family situation. In this respect, the present case differs from SS v. Slovenia (judgment of 30 October 2018, application no. 40938/16), in which the applicant was deprived of her parental rights not on the basis of her diagnosis, but due to her inability to take care of the child, which was confirmed by the expert opinions presented during the proceedings.
The Romanian courts did not properly assess the applicant's mental state. There were no elements in their decisions that would enable them to determine whether this was an appropriate consideration that should have been taken into account. The fact that the applicant suffered from a mental illness could not in itself justify the fact that he was treated differently from other parents who required communication with children. In particular, at the time of the adoption of the court decisions the applicant was regularly taking the medication prescribed to him; in the previous two years there had been no cases of psychiatric decompensation caused by illness. Consequently, by limiting the applicant's contact with the child, the Romanian courts made a distinction based on his mental health condition, for which they did not provide relevant and sufficient grounds to justify.
In such circumstances, a prima facie fact of discrimination was established. The burden of proof shifted to the respondent State's authorities, which had to prove convincingly that the applicant's contact with the child was not restricted on a discriminatory basis, but rather because his mental state did in fact impair his ability to take care of the child or that there were other reasons for doing so. restrictions. Given the specifics of the facts and the nature of the applicant's allegations in such cases, in practice it would be extremely difficult for the applicant to prove the fact of discrimination without shifting the burden of proof. However, the Romanian authorities did not provide convincing reasons for rebutting the presumption of discrimination against the applicant on the basis of his mental health.
RESOLUTION
There was a violation of the requirements of Article 14 of the Convention in conjunction with Article 8 of the Convention (adopted by five votes in favor, two against).
COMPENSATION
Application of Article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage.