Published on 29 January 2024
FOURTH SECTION
Application no. 61347/21
D.G and S.G.
against Serbia
lodged on 11 December 2021
communicated on 11 January 2024
SUBJECT MATTER OF THE CASE
The present case concerns the immediate temporary placement of the applicants’ son D.G. in a foster family in 2017, without regulating their contact rights to date.
On 16 August 2017, following an alleged call about the child being routinely unattended, the Arandjelovac Social Care Centre inspected the applicants’ house while the first applicant, the child’s mother, was absent performing short-term seasonal agriculture work in the nearby fields. According to the Centre’s officials, the child, three years old at the time, was found in the front yard while playing in an unsatisfactory living and safety environment, in presence of his grandmother who did not display capabilities of properly taking care of him. At that time, the second applicant, the child’s father, was serving a prison sentence for domestic violence committed in the period between 2009 and 2012 and undergoing compulsory alcoholism rehabilitation from December 2016 to August 2020.
As a consequence, the Centre took an immediate measure of temporarily placing the child with a foster family on that same day and informed the first applicant about it the following day, despite her inquiry. Following a remittal on the ground of a lack of adequate reasoning, the placement order was eventually upheld by the Ministry of Work and Social Care in March 2018 and by the Administrative Court on 31 October 2018.
In May 2019 the Social Care Centre instituted proceedings against the applicants with a view of depriving them of parental authority. The applicants requested an interim measure seeking to have the child placed in their household pending the outcome of the main proceedings, or, alternatively, to have access to their child and contact rights regulated. Following a quashing of the first-instance negative decision on the request for an interim measure, the judicial proceedings are still pending at first instance. In the meantime, the higher court found a violation of the applicants’ right of a trial within a reasonable time and ordered the acceleration of the proceedings.
During all this time, despite the experts’ reports finding that it was in the child’s best interest to have contacts gradually introduced with the aim of ultimate family reunification, apparently no contact rights have been regulated by the competent court. It transpires that, since August 2017, only sparse contacts between the first applicant and her son have been organised under supervision of the Social Care Centre.
The applicants complain under Articles 6 § 1, 8 and 13 of the Convention about the unjustified decision to place their child in a foster family and prevent their contact with him, as well as the flawed and protracted proceedings concerning the deprivation of their parental authority and contact rights.
QUESTIONS TO THE PARTIES
1. Having regard to the removal of the applicants’ son from the applicants’ care and the authorities’ failure to regulate their contact rights since then, can the applicants be considered to have done everything that could reasonably be expected of them to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, despite the fact that the relevant proceedings are still pending domestically and no final decisions have been yet taken? In this context, was any remedy, including a constitutional appeal, an effective remedy within the meaning of this provision in respect of the applicants’ complaints under Articles 6 and/or 8 of the Convention? Would a constitutional appeal have had a reasonable prospect of success, given that the relevant proceedings are still pending? The Government are requested to submit any jurisprudential evidence for their pleadings in this respect.
2. Is the length of the proceedings on the deprivation of parental authority and the applicants’ request for contact rights in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention and/or Article 8 of the Convention, taking into consideration the young age of D.G. and what is at stake for the applicants?
3. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention? Were the application and continuation of a temporary placement in respect of D.G. and the lack of regulated contact between him and the applicants, despite the experts’ reports, in accordance with the law and necessary in a democratic society in terms of Article 8 § 2? In particular,
(i) How long, according to the relevant domestic law, an emergency placement order may remain into force?
(ii) Have the Serbian authorities initially introduced or envisaged to take any support measures or remedy the applicant’s material deprivation by means of financial assistance in order to assist the first applicant, before the emergency placement order (see, for example, Soares de Melo v. Portugal, no. 72850/14, § 106, 16 February 2016 and Saviny v. Ukraine, no. 39948/06, § 57, 18 December 2008? Did the domestic authorities perform a genuine balancing exercise between the interests of the child and his biological family; in particular, was the immediate and temporary placement order and a lack of adequate contact justified by an overriding concern pertaining to D.G.’s best interests or by considerations of sufficient weight and strength (see, mutatis mutandis, Strand Lobben and Others v. Norway [GC], no. 37283/13, §§ 209 and 220, 10 September 2019; Soares de Melo, cited above, §§ 112-114 and 122; and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII)? Having regard to the experts’ reports in favour of gradual introduction of contact given the lost bond following the child’s temporary placement in the foster family, was every effort made to maintain personal relations consistent with the ultimate aim of reuniting the family, if necessary and justified (see, mutatis mutandis, Strand Lobben, cited above, §§ 206-08 and 220-221; K. and T. v. Finland [GC], no. 25702/94, §§ 151-166, ECHR 2001-VII; Gnahoré v. France, no. 40031/98, §§ 54-59, ECHR 2000-IX; and Sahin v. Germany [GC], no. 30943/96, §§ 65-66, ECHR 2003-VIII)?
(iii) Also, has the decision-making process been conducted in such a way as to ensure that the views and interests of the applicants had duly been taken into account and accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake? In this regard, was adequate account taken by the domestic courts of the first applicant’s attempts to improve her living conditions and the second applicant’s efforts to refrain from alcohol use apparently since 2016 (see, for example, Strand Lobben, cited above, §§ 212 and 225; Soares de Melo, cited above, §§ 94, 115-117 and 123; and W. v. the United Kingdom, 8 July 1987, § 64, Series A no. 121)?
4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 6 and 8 of the Convention, as required by Article 13 of the Convention?