Information Note on the Court’s case-law No. 112
October 2008
Clemeno and Others v. Italy - 19537/03
Judgment 21.10.2008 [Section II]
Article 8
Article 8-1
Respect for family life
Severance of all ties with the biological family of a child who was put up for adoption following suspected sexual abuse by members of the family: violation
Facts: X, a child aged about 13, declared that she had been subjected to sexual abuse for seven years by six members of her family. An order was made for her to be placed in a children’s home. In a letter to the children’s court, she said she feared that her cousin Y had also been subjected to sexual abuse and rape by the same people. On the basis of an expert report indicating that Y was emotionally disturbed and that her behaviour suggested that she had been sexually abused, the children’s court ordered her to be taken into the care of the social services and placed in a children’s home. Criminal proceedings were instituted against the six persons named by X. Y’s father was sentenced to 13 years’ imprisonment and the payment of approximately EUR 52,000, and his parental authority was withdrawn. Y’s mother launched a protest in support of her husband by chaining herself in front of the children’s home in which Y had been placed. Y’s father was subsequently acquitted by a court of appeal along with another four of the six accused. An appeal by the prosecution to the Court of Cassation was dismissed.
The children's court decided to prohibit further contact between Y and her parents and brother and gave permission for her adoption. It declined to stay the proceedings pending the final outcome of the criminal proceedings or even the outcome of the appeal. It withdrew the parental authority of both parents and ordered Y’s placement with foster parents. The applicants appealed, in particular, on the grounds that Y’s father had been acquitted in a decision that was final. However, the Court of Appeal dismissed their appeal on the grounds that the issues in the two sets of proceedings were entirely independent and that the interests of the child were paramount. Their appeal to the Court of Cassation was also dismissed.
The applicant attained her majority in 2006 and returned to her biological family of her own free will. She informed the Court registry that she wished to support her parents’ application.
Law: The care order, Y’s placement in a children's home and the order giving leave for her adoption amounted to interference with the first four applicants’ rights for respect of their family life. That interference was in accordance with the law and the impugned measures pursued the legitimate aims of protecting health or morals and the rights and freedoms of others as they were intended to ensure Y’s welfare.
(a) The care order and Y’s removal from her home: The children’s court had based its decision on strong presumptions that the child had suffered sexual abuse by her father, as confirmed by his committal for trial and the psychological report on the two brothers which the Court had ordered of its own motion. Subsequently, with a view to ensuring a stable family environment and after considering the second expert report on Y and the conduct of the parents over a one and a half year period the courts had decided to grant permission for Y’s adoption. In these circumstances, the care order and the removal of Y from her family could be regarded as proportionate measures that were necessary in a democratic society for the protection of her health and her rights as a child. The criminal background, with Y’s father being seen as the offender, could reasonably have led the authorities to believe that keeping Y in her home might cause her harm.
Conclusion: no violation (unanimously).
(b) Lack of contact between the first four applicants in the period between the care order and the decision to grant leave for adoption: The civil courts had given leave for Y’s adoption while the criminal proceedings against her father were still pending and had chosen not to reverse that decision when they were called upon to rule on the family’s objections following the father’s acquittal. Although the decisions dismissing the parents’ objections contained lengthy reasons and were based on various expert reports that indicated a difficult family context, the reasons given by the domestic courts for the decision to grant leave for adoption were, despite their extensiveness, insufficient when it came to the child’s interest. Neither the children’s court nor social services had set up a programme to re-establish links between Y and her biological family, even though the mother had not faced any criminal charges. Moreover, the main reasons advanced for granting permission for Y’s adoption were the mother’s support for the father and her inability to understand Y’s deepest needs. However, at the time that decision was made, the criminal proceedings against the father were still pending and he was later acquitted. Lastly, criminal proceedings did not appear to be a sufficient ground to justify severing all links between mother and daughter or granting permission for adoption. From the moment she was taken into care, Y was never allowed to meet any member of her biological family, or her brother, or her father, even after his acquittal. The severing of all links with her biological family was total and final. The domestic authorities had not made any attempts to maintain links between Y, who was seven years old when she was taken into care, and her family, particularly her mother and her brother, or to help the biological family to overcome any difficulties in their relations with Y and to reconstitute the family.
Conclusion: violation (unanimously).
Article 41 – EUR 20,000 to each of the applicants for 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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