The case of O.C.I. and Others v. Romania concerned decisions by the Romanian courts acting under the Hague Convention on the Civil Aspects of International Child Abduction and the Brussels II bis Regulation (No. 2201/2003) and ordering the return to Italy of two children who had been abducted to Romania by their mother because their Italian father had allegedly used violence against them. In its judgment of 21.5.2019, the ECHR found a violation of Article 8 of the Convention (right to respect for family life) on account of the fact that the domestic courts should have given more consideration to the potential risk of ill-treatment for the children if they were returned to Italy. After reiterating that a child’s return cannot be ordered automatically or mechanically (§§ 35 and 46), the ECHR held in particular:
In the context of an application for return, which is distinct from custody proceedings, it is primarily for the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties, to establish the best interests of the child and evaluate the case in the light of the exceptions provided for by the Hague Convention. (§ 40) …
As member States of the European Union, both States are parties to the Brussels II bis Regulation, which is thus applicable in the case (see K.J. v. Poland, cited above, § 58). That Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States (see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018). However, in the Court’s view, the existence of mutual trust between child-protection authorities does not mean that the State to which children have been wrongfully removed is obliged to send them back to an environment where they will incur a grave risk of domestic violence solely because the authorities in the State in which the child had its habitual residence are capable of dealing with cases of domestic child abuse. Nothing in the Hague Convention or in the Brussels II bis Regulation allows the Court to reach a different conclusion. (§ 45)
This approach would appear to be in some contrast with the one followed by the CJEU, notably in the Povse case (C-211/10).