B. v. Romania (no. 2)

Information Note on the Court’s case-law No. 160

February 2013

B. v. Romania (no. 2) - 1285/03

Judgment 19.2.2013 [Section III]

Article 8

Positive obligations

Article 8-1

Respect for family life

Respect for private life

Lack of adequate legal protection in a case concerning a mother’s committal to a psychiatric institution and the placement of her children in care: violations

Facts – The applicant was assisted by the social services from 1996 onwards, having been classified as a disabled person unfit to work. In 2000 she was diagnosed with “paranoid schizophrenia”. Two of her children were minors at the time. No measure of guardianship or administration was ever introduced for the applicant or her children. Since 2000 she has been admitted on numerous occasions to psychiatric institutions, after being taken there by the police. Her children have not been living with her; instead they were placed in residential care for abandoned children.

Law – Article 8

(a) The applicant’s confinement – In most of the cases previously heard by the Court concerning “persons of unsound mind”, the domestic proceedings concerning psychiatric confinement had been examined under Article 5 of the Convention. Consequently, in order to determine whether the confinement in the present case had complied with Article 8 of the Convention, the Court found it appropriate to refer, mutatis mutandis, to its case-law under Article 5 § 1 (e).

Despite the fact that the law on the protection of disabled persons imposed an obligation to introduce a legal protection measure, in the form of guardianship or administration, no such measure had been adopted in respect of the applicant, even though her state of health had been known to the authorities well before the beginning of her periods of confinement. Her vulnerability had also been noted and brought to the attention of the domestic courts by numerous reports of the social services. But neither the social services nor the courts had drawn any conclusions as regards the legal protection of the applicant herself. It was precisely the shortcomings of the authorities which had contributed to depriving her of the guarantees available under mental-health legislation, in particular the right for the patient to be assisted when giving consent or the obligation to notify the patient’s legal representative of the measure of confinement and the reasons for its adoption. Recent amendments to mental-health legislation provided that if the patient had no legal representative and was unable to appoint one on account of mental incapacity, the hospital would be required to notify the relevant local authority promptly so that legal protection measures could be put in place. However, those new provisions had not benefited the applicant. The provisions of domestic law governing psychiatric confinement and the protection of persons unable to look after their own interests had not been applied to the applicant in the spirit of her right to respect for her private life under Article 8. The authorities had thus failed in their obligation to take appropriate measures for the defence of the applicant’s interests.

Conclusion: violation (unanimously).

(b) Placement of the applicant’s children in care – It was because of the lack of special protection for the applicant, who, in particular, was not assigned a lawyer during the placement proceedings or any guardian ad litem, that she had not been able to participate effectively in the proceedings concerning the placement of her children or to have her interests defended. In addition, her family situation had been examined on only two occasions in a period of twelve years. Lastly, there was no evidence that the social workers had maintained the regular contact with the applicant that would have afforded a good opportunity to make her views known to the authorities. For those reasons, the decision-making process leading to the placement of the applicant’s two minor children had not been conducted in compliance with her rights as guaranteed by Article 8 of the Convention.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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