CASE OF S.H. v. ITALY

FOURTH SECTION

CASE OF S.H. v. ITALY

(Application no. 52557/14)

JUDGMENT

STRASBOURG

13 October 2015

FINAL

13/01/2016

This judgment is final under the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of S.H. v. Italy,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Päivi Hirvelä, President,
Guido Raimondi,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Faris Vehabović,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 22 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 52557/14) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Ms S.H. (“the applicant”), on 11 July 2014. The Vice-President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant was represented by Mr M. Morcavallo, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora.

3. The applicant alleged, in particular, a violation of her right to respect for family life as secured under Article 8 of the Convention.

4. On 23 October 2014 the complaint concerning the violation of Article 8 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1984 and lives in Sacile.

6. The facts of the case as submitted by the parties may be summarised as follows.

7. The applicant is the mother of three children, R., P. and J., who were born in 2005, 2006 and 2008 respectively.

8. At the material time the applicant was living with the children’s father, was suffering from depression and was undergoing a pharmacological treatment.

9. In August 2009 the social services informed the Rome Youth Court (hereafter “the court”) that the children had been hospitalised several times following the accidental ingestion of medication, and emergency proceedings were commenced before the court. By decision of 11 August 2009 the court ordered the children’s removal from their family and their placement in an institution, and instructed the social services to draw up a support project for the children.

10. On 20 October 2009 the applicant and the children’s father were heard by the court. They admitted that owing to the applicant’s state of health and the side-effects of the medication she was taking to treat her depression they had had difficulties looking after the children. They affirmed, however, that they could take proper care of the children with the help of the social services and the children’s grandfather. The applicant pointed out that she was undergoing treatment and that the side-effects initially caused by the medication had ceased. Both parents requested that the social services put in place a support project so that the children could return home.

11. On 3 December 2009 the psychiatrist submitted her report on the applicant. The report stated that the latter was undergoing pharmacological treatment, that she was willing to have psychotherapy and to accept the assistance of the social services and that she had a very strong emotional bond with her children.

On the same day the Integrated Working Group on Adoption (the “GIL”) submitted its report, pointing out that despite the family difficulties, the parents had reacted positively, had taken part in the meetings and were prepared to accept the support of the social services. Consequently, the GIL proposed returning the children to their parents and introducing a family support project.

12. By decision of 19 January 2010 the court, having regard to the expert reports and the fact that the paternal grandfather was available to help his son and the applicant to look after their children, ordered the children’s return to their parents.

On 24 March 2010, however, the parents’ reunion with their children was interrupted and the children were once again removed from the family home on the grounds that the applicant had been hospitalised owing to an aggravation of her illness, that the father had left the family home and that the grandfather had fallen ill. The court established visiting rights for both parents as follows: for the applicant, one hour per fortnight, and for the children’s father, two hours per week.

13. In March 2010 the prosecutor requested the opening of a procedure for declaring the children available for adoption.

14. On 10 June 2010 the parents were heard by the court. The applicant submitted that she was undergoing treatment, that the children’s father was available to look after them and that they had therefore not been abandoned. The father emphasised that even if he was working he could take proper care of the children with his father’s help, and that he had recruited a home help.

15. In October 2010 the court ordered an expert assessment of the applicant’s and the children’s father’s capacity for exercising their parental role. On 13 January 2011 the expert submitted his report, which concluded:

- that the father displayed no psychiatric illness and that despite his fragile personality he was capable of shouldering his responsibilities;

- that the applicant suffered from a “borderline personality disorder which interfered, to a limited extent, with her ability to shoulder responsibilities linked to her role as a mother”;

- that the children were hyperactive, largely as a result of the family’s difficulties.

In his conclusions, the expert pointed out that both parents were willing to accept any intervention required to improve their relationship with their children, and he made the following proposals: extending the children’s placement in public care, introducing a programme of bringing the parents and the children together, and intensifying encounters. He also suggested that the situation of the family should be reassessed six months later.

16. By decision of 1 March 2011, however, the court declared the children available for adoption, and the meetings between the parents and the children were discontinued.

In its reasoning, the court stated that no reassessment of the family’s situation was necessary in the present case. It highlighted the parents’ difficulties in exercising their parental role, as indicated by the expert, and referred to the statements of the Director of the institution to the effect that the applicant had “serious mental disorders”, the father “was unable to show affection and spent his time arguing with the welfare assistants” and the parents “were incapable of providing their children with the care and treatment which they needed”. Having regard to those facts, the court declared the children available for adoption.

17. The applicant and the children’s father appealed against that decision and requested a stay of execution. They submitted:

– that the court had erroneously declared the children available for adoption in the absence of any “abandonment”, a precondition for such a declaration under Law No. 184 of 1983;

– that the declaration of availability for adoption should only be used in the last resort and that in the present case it was unnecessary because their family difficulties, which stemmed, in particular, from the applicant’s illness, were temporary and could be overcome with the welfare assistants’ support.

Finally, they emphasised that the court had not taken into account the January 2011 expert report ordering the establishment of a programme of support and gradual reunion of the children with their parents.

18. In July 2011 the court ordered that each child be placed in a different foster family.

19. By decision of 7 February 2012 the Rome Court of Appeal dismissed the applicant’s appeal and upheld the declaration of availability for adoption.

The Court of Appeal observed that the competent authorities had expended the requisite efforts to provide support to the parents and prepare the children’s return to their family. However, the project had failed, which showed the parents’ incapacity for exercising their parental role and belied the temporary nature of the situation. With reference to the social services’ findings, the Court of Appeal emphasised that the failure of the project had had negative consequences for the children and that the declaration was geared to protecting their interest in being fostered in a family capable of properly caring for them, which their family of origin was incapable of doing owing to the mother’s state of health and the father’s difficulties. The Court of Appeal noted that there had been some positive developments in the situation, such as the mother’s realisation of her health problems and her determination to undergo treatment, as well as the father’s efforts to find resources in order to look after his children and the availability of the grandfather to help out. However, the Court of Appeal held that those factors were insufficient to assess the two parents’ capacities for exercising their parental responsibilities. Having regard to those factors, and with an eye to safeguarding the children’s interests, the Court of Appeal also confirmed their availability for adoption.

20. The applicant and the children’s father lodged an appeal on points of law. By judgment deposited in the registry on 22 January 2014, the Court of Cassation dismissed the applicant’s appeal on the grounds that:

– the Court of Appeal had correctly assessed the existence of a situation of psychological abandonment of the children and the irreversibility of the parents’ incapacity for exercising their role, having regard to the failure of the first support project put in place by the social services;

– the declaration of availability for adoption had duly taken into account the children’s interest in being fostered by a family capable of looking after them effectively.

21. In February 2014 the applicant requested the Rome Youth Court to cancel the declaration of the children’s availability for adoption (on the basis of section 21 of Law No. 184 of 1983). In support of her request, the applicant presented various medical documents attesting that her state of health had improved in the meantime, in order to prove that the conditions set out in section 8 of Law No. 184 of 1983 for issuing a declaration of availability for adoption has since lapsed.

By a decision of 14 May 2014 the Rome Youth Court dismissed the applicant’s request.

22. The outcome of the adoption procedure concerning the children is unknown.

II. RELEVANT DOMESTIC LAW

23. The relevant domestic law is described in the cases of Akinnibosun v. Italy, (no. 9056/14, § 45, 16 July 2015) and Zhou v. Italy, (no. 33773/11, §§ 24-26, 21 January 2014).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

24. The applicant complained that the domestic authorities had declared her children available for adoption despite the fact that there had been no situation of abandonment in the present case but only a number of temporary family difficulties arising from her clinical depression and the fact that she and the children’s father were no longer living together, which difficulties could have been overcome by putting in place a support project with the assistance of the social services.

She emphasised that the domestic authorities had cut off all contact between her and her children even though the expert report had established that other measures could have been used to preserve the family bond in the present case.

She accordingly considered that the domestic authorities had failed in their positive obligation to take all the necessary action to preserve the bond between parents and their children, which obligation was inherent in Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

25. The Government contested that argument.

A. Admissibility

26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

27. The applicant first of all emphasised that the conditions prescribed by law for declaring her children available for adoption had not been fulfilled in the present case. She observed that the domestic courts had primarily based the declaration of availability for adoption on her illness and the fact that the parents were no longer living together.

Considering that those family difficulties had only been temporary, the applicant submitted that by opting for cutting off the maternal bond rather than taking the requisite measures to support and assist her, the domestic courts had failed in their positive obligations under the Convention.

28. The applicant pointed out that although a support programme had initially been established, it had been discontinued because of her worsening state of health. She emphasised that the deterioration of her health had only been temporary and therefore could not have warranted the final cessation of all efforts to preserve the family relationship.

29. The applicant had been aware of the difficulties caused by her illness, submitting that she had undergone treatment and had several times requested support and assistance from the social services and the competent authorities in order to meet the children’s needs as effectively as possible.

She considered the fact that a parent was in difficulty could not suffice, in itself, to justify breaking the links between the parents and their children, but rather required the State to take the necessary action to provide effective assistance and preserve the family relations. In that regard, the applicant referred to Zhou v. Italy, cited above.

30. The applicant did not dispute the fact that the domestic authorities benefited from a broad margin of appreciation in determining the measures to be adopted to protect the best interests of children. Nevertheless, she pointed out that the removal of the children from their mother had had negative effects on their mental and physical equilibrium, and referred in that regard to the expert reports (see paragraph 15 above).

31. The applicant drew attention to the fact that the decision to declare the children available for adoption had been taken despite the expert reports stating that the bond between the parents and their children had to be preserved. The experts had initially considered returning the children to their parents. Subsequently, when the applicant’s state of health had worsened and the two parents had ceased living together, the expert mandated by the court had proposed temporarily placing the children in a foster family and establishing a support programme. The domestic courts had nonetheless ignored those recommendations, declared the children available for adoption, and placed them with different families.

(b) The Government

32. The Government explained that the competent Italian authorities had pursued the aim of protecting the best interests of the children, taking all the necessary steps to preserve the family links. The declaration of availability for adoption had been issued in the framework of a fair procedure following in-depth examination of the parents’ and children’s psychological and physical states.

33. The Government pointed out that the children had been living in an insecure, dangerous situation, which was why the social services had intervened and placed them in an institution.

34. The declaration of availability for adoption, which had been issued after several attempts to reunite the children with their parents, had been based on the information provided by the experts and been justified by the obligation to protect the children’s best interests. The Government pointed to the content of the expert reports demonstrating the limits of the applicant’s capacity for shouldering her parental responsibilities and the children’s behavioural disorders linked to the difficult family situation (see paragraph 15 above).

35. The Government considered that the domestic courts had been unable to accept the experts’ proposal for a reassessment of the family situation before declaring the children available for adoption. The courts’ detailed analysis of the factual and legal aspects had uncovered serious reasons for declaring the children available for adoption, and had left no doubt as regards the impossibility of any positive change in the family’s situation. The parents’ determination to look after their children and their willingness to accept support from the social services were insufficient to overcome the objective difficulties of the present case and to guarantee the children’s proper mental and physical development.

36. The Government pointed out that the applicant had told the domestic courts that she was unable to look after the children and had requested either that she receive assistance or that custody of the children be assigned to their father. In view of the difficulties, which the applicant had herself acknowledged, and the fact that the support programme had failed, the domestic courts had adopted the only decision capable of protecting the children’s interests. The Government referred to the case-law of the Court to the effect that a fair balance should be struck between the interests of the children and those of the parents. However, the best interests of the child had to take precedence over those of the parents (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996‑III).

37. The Government argued that the interference with the applicant’s right to respect for her family life was prescribed by law and had pursued the aim of protecting her children. Finally, they considered that the reasons given by the domestic courts for their decisions were relevant and sufficient and that the domestic authorities had not overstepped the margin of appreciation permitted under Article 8 § 2 of the Convention.

2. The Court’s assessment

(a) General principles

38. The Court notes, on a preliminary basis, that it was undisputed that the declaration of the children’s availability for adoption amounted to an interference with the applicant’s exercise of her right to respect for her family life. It reiterates that such an interference was incompatible with Article 8 unless it was “in accordance with the law”, had an aim or aims that is or are legitimate under Article 8 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Gnahoré v. France, no. 40031/98, § 50, ECHR 2000‑IX; Couillard Maugery v. France, no. 64796/01, § 237, 1 July 2004; and Pontes v. Portugal, no. 19554/09, § 74, 10 April 2012).

39. The Court reiterates that beyond protection against arbitrary interference, Article 8 imposes on the State positive obligations inherent in effective respect for family life. Thus, where a family tie has been established, the State must in principle act in such a way as to allow the relationship to develop (see Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 140, ECHR 2010; and Pontes v. Portugal, cited above, § 75). The boundary between positive and negative obligations under Article 8 cannot be precisely defined, but the applicable principles are nonetheless comparable. In particular, in both cases a fair balance must be sought between the interests of the child and those of the parents and that, in the balancing process, primary importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003-VIII; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and Akinnibosun v. Italy, cited above, § 60). In particular, a parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see Johansen v. Norway, cited above, § 78, and Gnahoré, cited above, § 59). Thus, in the field of adoption, the Court had already accepted that it may be in the child’s interest to promote the process of establishing bonds with his or her foster parents (see Johansen, cited above, § 80, and Kearns, cited above, § 80).

40. The Court also reiterates that a margin of appreciation is left to the State vis-à-vis both negative and positive obligations (see W. v. the United Kingdom, 8 July 1987, § 60, Series A no. 121), which margin varies depending on the nature of the issues at stake and the seriousness of the competing interests. In particular, the Court requires that measures which involve breaking a child’s bonds with his or her family should only be applied under exceptional circumstances, that is to say only where the parents have shown themselves to be particularly unfit (see Clemeno and Others v. Italy, no. 19537/03, § 60, 21 October 2008), or where the measures are justified by an overriding requirement in the child’s best interests (see Johansen, cited above, § 84, and P., C. and S. v. the United Kingdom, no. 56547/00, § 118, ECHR 2002‑VI). However, this approach can sometimes be overruled because of the nature of the parent-child relationship, where the bond is very weak (see Söderbäck v. Sweden, 28 October 1998, §§ 30 ‑ 34, Reports 1998‑VII).

41. It is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention, and it is for the Court to ascertain whether the domestic authorities, in applying and interpreting the applicable legal provisions, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 141, ECHR 2010; K.A.B. v. Spain, no. 59819/08, § 115, 10 April 2012; and X v. Latvia [GC], no. 27853/09, § 102, ECHR 2013).

42. In that regard, in connection with the State’s obligation to adopt positive measures, the Court has consistently held that Article 8 includes both a right to the taking of measures with a view to their being reunited and an obligation the national authorities to take measures to facilitate that reunion (see, for example, Eriksson v. Sweden, 22 June 1989, § 71, Series A no. 156; Margareta and Roger Andersson v. Sweden, 25 February 1992, § 91, Series A no. 226-A; and P.F. v. Poland, no. 2210/12, § 55, 16 September 2014). In this type of case the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live (see Maumousseau and Washington v. France, no. 39388/05 § 83, 6 December 2007; Zhou v. Italy, cited above, § 48; and Akinnibosun v. Italy, cited above, § 63).

(b) Application of those principles

43. The Court considers that the decisive question in the instant case is whether, before cancelling the mother-child bond, the domestic authorities had taken all the necessary and adequate steps that could reasonably be expected of them to enable the children to lead a normal family life with their own family.

44. The Court notes that the Italian authorities first dealt with the applicant and her children in August 2009, when the social services informed the court that the children had been hospitalised owing to their accidental ingestion of medication. The children were removed from the family and placed in an institution.

45. The Court observes that an initial support project was established for the family, and that in January 2010 the children were returned to their parents. The court’s decision was based on an expert report which noted a positive reaction on the parents’ part to the family support programme drawn up by the social services, and on the existence of a very strong emotional bond between the applicant and her children.

46. In March 2010 the children’s father left the family home and the applicant was taken into hospital owing to a deterioration in her state of health. In the light of those developments, therefore, the children were once again removed from their family and placed in an institution, and a procedure was initiated to declare them available for adoption.

47. The Court notes that the expert mandated by the court envisaged implementing a project geared to gradually bringing the parents and their children back together, with intensification of the meetings and a review of the situation six months later. The proposed solution was based on the existence of strong affective bonds between the parents and the children, as well as a generally positive assessment of the parents’ capacity for performing their role and their willingness to cooperate with the social services. The Court observes that the expert assessment in question was filed with the registry on 13 January 2011 and that it was not until two months later, that is to say on 1 March 2011, that the court, contrary to the expert’s recommendations, declared the children available for adoption and ordered the discontinuation of the parent-children encounters. The decision to break the maternal bond immediately and definitively was taken very quickly, without any detailed analysis of the impact of the adoption on the individuals concerned and despite the legal provisions laying down that a declaration of availability for adoption must remain the last resort. Accordingly, by refusing to consider any other less radical solutions which could have been implemented in the instant case, such as the family support programme envisaged by the expert, the court definitively ruled out any possibility that the programme might succeed and that the applicant might restore her relationship with her children.

48. The Court reiterates that for a parent and child the fact of being together is a fundamental aspect of family life (see Couillard Maugery v. France, cited above, § 237) and that measures having the effect of breaking the bonds between a child and his or her family can only be implemented in exceptional circumstances. The Court also emphasises that Article 8 of the Convention requires a State to adopt measures to preserve the mother-child bond as far as possible (see Zhou v. Italy, cited above, § 59).

49. The Court notes that in such difficult and complex cases, the margin of appreciation available to the competent national authorities varies with the nature of the issues at stake and the seriousness of the competing interests. Although the authorities have broad latitude in assessing the need to take a child into public care, particularly in emergency situations, the Court must nevertheless be satisfied that in the case in question there existed circumstances justifying the children’s removal. It is for the respondent State to establish that the authorities carried out a careful assessment of the impact of the proposed care measure on the applicants and the children, as well as of the possible alternatives to taking the children into care, prior to the implementation of such a measure (see K. and T. v. Finland [GC], no. 25702/94, §166, ECHR 2001‑VII, and Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002‑I).

50. In the present case, unlike in other cases assessed by the Court, the applicant’s children had not been exposed to a situation of violence or physical or mental ill-treatment (see, to converse effect, Y.C. v. the United Kingdom, no. 4547/10, 13 March 2012; Dewinne v. Belgium (dec.), no. 56024/00, 10 March 2005; and Zakharova v. France (dec.), no. 57306/00, 13 December 2005), or sexual abuse (see, to converse effect, Covezzi and Morselli v. Italy, no. 52763/99, § 104, 9 May 2003).

The Court reiterates that it found a violation of Article 8 in the case of Kutzner v. Germany (cited above, § 68), in which the courts had withdrawn the applicants’ parental authority after having noted their intellectual deficiencies, and had placed the two children in separate foster homes (ibid., § 77). The Court noted that although the reasons relied on by the domestic authorities and courts had been relevant, they had been insufficient to justify such a serious interference in the applicant’s family life (ibid., § 81). A violation of Article 8 was also found in the case of Saviny v. Ukraine (no. 39948/06, 18 December 2008), in which the decision to place the applicants’ children in care had been based on their inability to provide the children with appropriate living conditions (the applicants’ insufficient financial means and personal qualities had endangered the children’s lives, health and moral upbringing).

The same applied in the case of Zhou v. Italy (cited above, §§ 59-61), in which the Court held that the authorities had not expended the requisite efforts to preserve the mother-child bond, and had merely noted the existence of difficulties, which could have been overcome by means of targeted social assistance.

On the other hand, the Court found no violation of Article 8 in the case of Aune v. Norway (no. 52502/07, 28 October 2010), noting that the child’s adoption had not prevented the applicant from continuing to have a personal relationship with him and did not result in “cutting him off from his roots”. In the above-cited case of Couillard Maugery v. France, in which the children’s placement in public care had been ordered owing to the mother’s psychological imbalance, the Court also found no violation of Article 8, having regard to the mother’s failure to cooperate with the social services, the children’s refusal to see her and, above all, the fact that the maternal bond had not been definitively cut off since in that particular case the placement in care had only been a temporary measure.

51. In the present case, the procedure for declaring the children available for adoption had been initiated owing to the worsening of the applicant’s illness, which had led to her hospitalisation, and to the deterioration of the family situation consequent upon the judicial separation of the parental couple.

52. The Court does not doubt the necessity, in the situation at issue, of intervention by the competent authorities in order to protect the children’s interests. However, it doubts the appropriateness of the chosen mode of intervention and considers that the domestic authorities expended insufficient efforts to safeguard the bond between the mother and the children. The Court observes that other solutions would have been practicable, such as those envisaged by the expert, in particular the implementation of a targeted programme of social assistance capable of overcoming the difficulties of the applicant’s state of health, which would have preserved the family bond while also protecting the children’s best interests.

53. The Court notes the fact that the applicant submitted several requests for the intervention of the social services to help her take better care of her children. In the Court’s view, no credence can be given to the Government’s argument that the applicant’s requests displayed her inability to shoulder parental responsibilities and justified the court’s decision to declare the children available for adoption. The Court considers that a response by the authorities to the applicant’s requests for assistance could have protected both the children’s interests and the maternal bond. Furthermore, such a solution would have complied with the recommendations of the expert report and the legal provisions laying down that a definitive interruption of the family relationship must be the last resort.

54. The Court reaffirms that the authorities’ role in the social welfare field is, precisely, to help persons in difficulty, to provide them with guidance in their contact with the welfare authorities and to advise them, inter alia, on how to overcome their difficulties (see Saviny v. Ukraine, no. 39948/06, § 57, 18 December 2008, and R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013). In the case of vulnerable persons, the authorities must show particular vigilance and afford increased protection (see B. v. Romania (no. 2), no. 1285/03, §§ 86 and 114, 19 February 2013; Todorova v. Italy, no. 33932/06, § 75, 13 January 2009; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013; Zhou, cited above, §§ 58-59; and Akinnibosun v. Italy, cited above, § 82).

55. The Court observes that the judgment of the Rome Court of Appeal acknowledged improvements in the applicant’s state of health and in the family situation as a whole. In particular, that court took note of the fact that the applicant was undergoing treatment, that the children’s father had been endeavouring to find resources to look after his children and that the paternal grandfather was willing to help his son (see paragraph 19 above). However, those improvements were considered insufficient for the purposes of assessing the parents’ capacity for performing their role, and the Court of Appeal confirmed the declaration of availability for adoption, on the basis, in particular, of the obligation to protect the children’s interest in being fostered by a family capable of adequately caring for them.

56. The Court reiterates that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with their child (see K. and T. v. Finland [GC], cited above, § 173; Pontes v. Portugal, cited above, § 95; and Akinnibosun v. Italy, cited above, § 75).

The Court notes that in the present case, despite the availability of less radical solutions, the domestic courts nevertheless declared the children available for adoption, contrary to the expert’s recommendations, leading to their definitive and irreversible removal from their mother. Moreover, the three children were placed in three different foster families, such that not only the family but also the children were split up (see Pontes v. Portugal, § 98, cited above).

57. The Court considers that the vital need to preserve as far as possible the bond between the applicant – who was, moreover, in a situation of vulnerability – and her children was not duly taken into consideration (see Zhou, § 58, cited above). The judicial authorities solely considered the family’s difficulties, which could have been overcome by means of targeted social assistance, as the expert report had in fact stated. Although an initial support project had been put in place in 2009 and had failed because of the applicant’s worsening state of health and the termination of her cohabitation with her husband, those facts were insufficient to justify the removal of any opportunity for the applicant to reconnect with her children.

58. Having regard to the above considerations and notwithstanding the State’s margin of appreciation in the relevant sphere, the Court concludes that the Italian authorities, by exclusively envisaging a definitive and irreversible break-up of the family bond despite the availability of other solutions that would have both protected the children’s interest and preserved the family relationship, failed to expend adequate and sufficient efforts to ensure compliance with the applicant’s right to live with her children, thus flouting her right to respect for family life as guaranteed by Article 8 of the Convention. There was therefore a violation of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

60. The applicant claimed 300,000 euros (EUR) in respect of non-pecuniary damage which she had sustained owing to the violation of Article 8.

61. The Government contested that claim.

62. Having regard to the circumstances of the case and to the finding that the Italian authorities failed to expend adequate and sufficient efforts to ensure compliance with the applicant’s right to live with her children, in breach of Article 8, the Court takes the view that the applicant suffered non-pecuniary damage which cannot be adequately compensated by the mere finding of a violation of the Convention. It considers, however, that the amount claimed is excessive. Having regard to all the facts before it and making its assessment on an equitable basis, pursuant to Article 41 of the Convention, the Court considers it reasonable to award the applicant a sum of EUR 32,000 in respect of non-pecuniary damage.

B. Costs and expenses

63. The applicant made no claim in respect of costs and expenses. The Court therefore considers that no award should be made under this head.

C. Default interest

64. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible as regards the complaint under Article 8 of the Convention;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 32,000 in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in French, and notified in writing on 13 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident

 

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