SECOND SECTION
DECISION
Application no. 2584/11
M. and S.
against Italy and the United Kingdom
The European Court of Human Rights (Second Section), sitting on 13 March 2012 as a Chamber composed of:
Françoise Tulkens, President,
Dragoljub Popović,
Isabelle Berro-Lefèvre,
András Sajó,
Guido Raimondi,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 4 December 2010,
Having regard to the Section President’s decision to grant anonymity to the applicants of her own motion under Rule 47 § 3 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mrs F.M. and Ms A.S., are Italian nationals who were born on 25 August 1962 and 10 September 2004 respectively and live in Milan. They were initially represented before the Court by Ms L. Cossar, a lawyer practising in Milan, who later gave up her mandate. The first applicant is the mother of the second applicant and is acting in her own name and on her child’s behalf.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background of the case
3. The first applicant lived and worked in the United Kingdom from 1996 and became resident there in 2000. The parents of the second applicant (“A.S.”), who are both Italian citizens, married in the United Kingdom on 22 September 2000, and registered their marriage in Italy in November 2000. The parents separated before the child’s birth and judicial separation proceedings were issued by the first applicant in the Milan Civil Tribunal on 15 June 2004. They were eventually linked to subsequent child care proceedings which were commenced upon A. S.’s birth.
4. On 17 March 2005, custody of the child was granted to the mother by the Milan Tribunal. Regular (initially supervised) contact, to be held in the mother’s house, was also granted to the father (“X.”), who was ordered to pay maintenance.
5. On 31 May 2005, the first applicant complained about X.’s violent behaviour and the effects this was having on the child. She further requested authorisation to return, with the child, to the United Kingdom for work purposes.
6. By a judgment of the Milan Youth Tribunal (Tribunale per i minorenni) of 5 August 2005, the applicants were granted permission to return to the United Kingdom and the second applicant was inscribed on the first applicant’s passport. They moved to Reading, England, in the United Kingdom.
7. By a decision of 13 September 2005, the Milan Civil Tribunal altered the visiting arrangements, holding that the child should spend alternate weekends with the father, in Italy and the United Kingdom, in the presence of a nanny, but not including overnight stays. Visits to the United Kingdom would be unlimited as long as announced in advance.
8. On 13 January 2006 a CTU (psychiatric assessment) report was filed, stating that the time was not ripe for joint custody but that arrangements for more visits with the father were to be made gradually. The second applicant’s contact with her father was regular and became unsupervised through progressive contact orders issued by the Milan Tribunal.
9. On 13 March 2006 the court confirmed the mother’s custody of the child.
10. On 29 September 2006 the first applicant made submissions reiterating her concerns regarding the father’s behaviour and its effects on the child.
11. On 30 October 2006, the second applicant returned to the United Kingdom following a weekend with her father. She had a heavy rash in her genital area and displayed disturbed behaviour. On 4 November 2006 the emergency doctor noted a small tear in her anus but could not determine its cause. On 13 May 2007, again following a weekend with her father, the second applicant returned with a rash in her genital area and according to her mother displayed uncharacteristic behaviour such as heavy kissing on the mouth, and profound physical and psychological discomfort. The emergency doctor noted the rash and inflammation and reported these to the appropriate authorities as suspicious and indicative of possible sexual assault. However, he also considered it could be due to a lack of hygiene or to masturbation and was surprised that a congenital malformation of the girl’s genitalia had not been brought to his attention. On 17 May 2007 a detective constable of Thames Valley Police informed the first applicant that there was insufficient evidence to pursue a criminal investigation. On the same day A.S.’s nursery reported that A.S. had been found masturbating on the potty and that her behaviour the previous days had been strange.
12. On 11 June 2007, following accusations made against him, the father lodged an emergency request with the Italian Civil Tribunal asking for sole custody of the child and for her to be resident with him.
13. On 18 June 2007 a British social worker reported on the mother’s good qualities and noted the possibility that sexual abuse had taken place. She thought it was possible that the child’s travelling to Italy might be causing stress and advised that A.S. be accompanied by a nanny on these journeys. On this basis the first applicant requested the Italian courts to order supervised visits and submitted a detailed account of the situation in her pleadings of 25 June 2007.
14. On 28 June 2007, the Italian court found that the inquiry into the claim of sexual abuse did not provide any evidence substantiating the claims brought solely by the mother, who suffered from a state of extreme anxiety. Moreover, no official action had been taken by the British authorities. The court, therefore, dismissed the claims as unfounded. It noted that the mother had systematically and continuously denigrated the child’s father, even if no concrete elements that could suggest he was an inadequate parent had been revealed. This brought into question the appropriateness of the mother’s behaviour. For these reasons the custody regime had to be altered. Joint custody was therefore granted to the mother and the father to underscore the importance of both parental figures for securing the healthy psychological growth of the child, making both parties aware that they must assume responsibility for overcoming their parental conflict, in which the child was heavily involved. It confirmed the previous visiting arrangements and residence mainly with the mother. The applicant alleged that she had not been heard before this decision.
15. On 5 July 2007, the mother applied to the English courts for an emergency protection order under the 1989 Children’s Act, with a suspension of visiting rights. On 6 July 2007 the Principal Registry of the Family Division in London ruled that nobody could remove the child from the mother or from British jurisdiction until the case had been heard, and that the father should have supervised visits. The father issued a cross‑application to enforce the existing Italian orders. On 24 July 2007 the Milan Tribunal issued the certificate needed for the enforcement of the Italian orders regarding visiting arrangements. This was delivered to the United Kingdom authorities on 1 August 2007.
16. In the meantime, the British police had interviewed the father. He was also informed that the social services and the police felt supervised access would be appropriate while the Italian social services made an assessment of the situation.
17. On 2 August 2007, before the High Court it was accepted that the Italian courts had primary jurisdiction (according to the Brussels II Regulation) in matters of legal separation and child care. The mother’s applications were therefore withdrawn and the orders of the Milan Tribunal were recognised and enforced.
18. In October 2007, the mother stopped all contact between the child and her father due to suspicions that the father had sexually abused the child after a contact visit in Italy. The mother had taken the child to a doctor in an Accident and Emergency department in a hospital in the United Kingdom. However, contrary to the mother’s claims, the doctor found that the child was healthy save for a slight rash; no lesions had been found on her external genitalia and her anus was intact. However, child protection referrals were made to the United Kingdom police and social services. The police conducted two interviews with the child, recorded on video, where A.S. spoke of her father touching her. They advised the mother not to allow any unsupervised contact between the child and her father in order not to prejudice the criminal investigation. However, a letter of the Director of Childhood and Education, Reading Borough Council, to X., informed him of the events and concluded that there was no evidence of harm or risk of danger. Thus, the department’s intervention had not been necessary.
19. On 6 November 2007 the applicant submitted documents related to the alleged abuse and requested the Milan Tribunal to terminate the father’s visiting rights. On 23 November 2007 the father lodged his defence arguments, requesting that the child be placed with him or alternatively with a foster family under the control of the Milan Municipality, and for the relevant physical and psychological reports to be drawn up.
20. On 28 November 2007 the British police wrote to the Milan Tribunal informing it that criminal investigations were taking place in respect of the suspicion of sexual abuse.
21. On 29 November 2007 the Milan Tribunal held that there was no reason to change the provisional custody and visiting arrangements in place. It ordered a new CTU, which would also investigate whether it was possible that any sexual abuse had taken place.
22. A comprehensive CTU was drawn up which included interviews with all the parties involved, including the nanny, the father’s partner and her son. No interviews were, however, held with the child together with the father, since the first applicant denied the father access. Medical examinations and reports were also taken into account. According to the report, while talk about genitalia and sexual attitudes was recurrent in the child, it was mostly associated with the images of the British police and the mother and not those of the father and his new family. The child repeatedly stated that certain terminology which she used had only been used with these figures (the police constable and the mother) and she was unable to explain certain of the terminology she herself used. It emerged that the child missed the father and the united family unit, she felt uncared for and that she needed to be left alone in tranquillity. The report concluded that there existed “a possible sexual trauma and in any event a suffering exacerbated when confronting the subject of an alleged abuse, in addition to the suffering from the continuous conflict between the parents which aggravated the family dynamics and harmed the child’s equilibrium”. However, the report could not confirm that such a state was due to an actual abuse, as it could have been the result of a sexually charged environment in which the child was brought up.
23. After protracted proceedings in which both parties were represented and extensive expert evidence was submitted, and following a collegial hearing of 14 January 2009, the Milan Tribunal issued a (48 page) partial decision, filed in the relevant registry on 26 January 2009. It pronounced the couple’s separation. Furthermore, having considered the parties’ submissions, the expert evidence – particularly the medical reports –, the CTUs, the reports of the British police and of the British social services, and confirming its jurisdiction, it ordered, inter alia, that custody of the child be assigned to the Municipality of Milan; that the mother return the child to Italy immediately, if necessary with the assistance of the public forces; that the child’s name be removed from the passport of the nanny who had previously accompanied her on her travels; that the Municipality of Milan place the child, if possible with her mother (should she be so willing), in a protected place, and instigate a course of therapy, making available to the parents every form of therapy and support that might assist with parenting and meetings between father and daughter, which had to resume; that the mother pay compensation to the father and the child for breaching the previous contact orders and causing a sudden interruption in the relationship between father and child (by also forbidding any telephone communication), with the ensuing repercussions on the child’s equilibrium and the moral suffering caused to both.
24. On 2 February 2009, the first applicant appealed to the Milan Court of Appeal, requesting the suspension of the partial decision.
25. On 24 February 2009, the father registered the Milan Tribunal’s order of 26 January 2009 in the High Court of England and Wales, requesting its enforcement. On the same day the High Court ordered the registration of the order and the securing of the passports and identity cards of both the mother and her child. The first applicant, in her application to the Court, stated that she could request from the father the restitution of her documents for periods relevant to work-related travel.
26. On 1 April 2009 the first applicant requested permission to appeal against the High Court decision, and requested that the decision be stayed in the meantime.
27. On 17 April 2009 X. released the first applicant’s identity card.
28. By a judgment of 22 April 2009, filed in the relevant registry on 29 May 2009, containing a reasoning of more than twenty pages, the Court of Appeal in Milan dismissed the mother’s appeal against the Milan Tribunal’s decision of 26 January 2009. It noted that the proceedings had been long and complex, marked by various decisions, based on pleadings and evidence submitted by both parties, who had effectively participated (contradittorio). It dismissed her application for the case to be transferred to the jurisdiction of England noting, inter alia, that all of the parties were Italian. The child had been born in Italy, where she had remained for the first year of her life; the child had only left Italy due to her mother’s work and had regularly returned on multiple and extensive visits; the child’s mother tongue was Italian and she had only just started to learn English; and the British courts could not be said to be better suited to deal with the application given the stage of the proceedings in which extensive investigative measures had been ongoing for many years, including two expert witnesses, psychiatric assessments of the parties and huge amounts of evidence.
On the merits, considering all of the different evidence before the court, including the child’s testimony also through expert reports, but excluding video recordings which had been made with unknown technologies and which had not been open to challenge by the father, it held that the medical evidence was not conclusive and that the advice given by the English police on the basis of the mother’s unilateral statements could not be regarded as determinative of the father’s guilt, though it was not yet excluded as investigations in Italy were still ongoing. The Court of Appeal was seriously concerned about the level of acrimony between the parents and the damage to the child. It clearly emerged from the report of the court-appointed expert witness, the reports of the expert witnesses of the parties and the report of British social services that the child was in a serious situation of psychological distress. In particular, it referred to the damage relating to the sexual and corporeal sphere and also the suffering caused by the current conflict between her parents, and her need, which had been denied, to maintain a network of connections with members of the father’s family and her father. The position of the child, the fact that she had not seen her father since October 2007, was considered to be grave. It was considered necessary to clarify once and for all this position given the confusion caused by the accusations of the mother and the damage produced by an invasive investigative approach aimed exclusively and obsessively at finding abuse – and deliberately designed to remove the child from the father – with no respect for the consequences upon the child, who was clearly unhappy and displaying physical and psychological suffering.
The court therefore endorsed the decision of the Milan Tribunal to order the return of the child to Italy and her placement in a neutral environment, with the mother, if the mother wished, or alone, if she did not, with a course of therapy and the reinstatement of contacts with the father in a protected and monitored fashion. The court considered this to be an inevitable solution, given the increasingly serious and poisonous situation, which could only be sorted out in a neutral place, where the nature and origin of the child’s fundamentally sexual compulsive behaviour, her eroticisation and the minor’s adult expressions, with sexual content, could finally be fully deciphered, and the family dynamics and parenting skills of the mother and father could be observed. Indeed, the mother appeared anxious and showed little empathy towards her daughter (according to CTU reports), she was not in favour of allowing father-child contact and her actions were of emotional harm to the daughter. With regard to the suffering that the child would undoubtedly experience if the order were carried out, it was pointed out that the mother had the possibility of reducing this alleged suffering by agreeing to be placed in the home with her daughter for the limited period of time needed to sort out the family dynamics, a choice that was compatible with her activity as a university researcher entitled to periods of sabbatical or leave to conduct research in other countries.
29. On 16 June 2009, the English Court of Appeal ordered that the Family Division of the High Court was the correct court to consider the mother’s appeal against the execution of the Milan Tribunal’s order in which she relied on Article 23(a) and (b) of Brussels II (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility). It ordered that a CAFCASS (Children and Family Court Advisory and Support Service) report be presented. In the CAFCASS report dated 27 July 2009, concerns were set out about the enormous effect of the enforcement of the Italian court’s order which would remove the child from the United Kingdom and into institutional care in Italy with or without her mother. It suggested that A.S.’s position in the proceedings be safeguarded by a guardian to be appointed. This suggestion was rejected by the court on 29 July 2009.
30. On 4 November 2009, the mother’s appeal was dismissed by the High Court after a three day final hearing, the appointment of an advocate to assist with interpretation of Brussels II (Council Regulation (EC) No 2201/2003) of 27 November 2003, and the consideration of over 1200 pages of evidence, including the evidence before the Italian courts and of the court-appointed expert. It was accepted that the Italian courts had jurisdiction in relation to the child, and that under Article 31 of the Regulations the court in the United Kingdom could only refuse to enforce the order for one of the reasons specified in Articles 22, 23 and 24 of the Regulations, and could not review the substance of the Italian order. The issues were limited to whether the decision of the Milan Tribunal of 26 January 2009 was manifestly contrary to public policy of the Member State in which recognition was sought, taking into account the best interests of the child (Article 23 (a)), or whether it was taken without the child having been given an opportunity to be heard, in violation of the fundamental principles of procedure in England (Article 23 (b)). It was not accepted that the policy adopted by the Italian courts in any way differed from that which would have been adopted by the United Kingdom courts, as the welfare considerations of the child plainly lay behind their decision. The order could therefore not be considered to be manifestly contrary to public policy. In addition, it was considered clear that the child’s voice had been put before the Italian courts through the expert witness who had prepared a thorough report which went conscientiously through a mass of material and involved a series of interviews with all parties. It was also abundantly clear that the expert was highly concerned about the child and had highlighted the child’s welfare in the clearest possible terms. The Italian courts had set out clearly why further assessments of the child, which all parties agreed were necessary, could not be done in England, making their orders even more understandable. In addition, the order was not a final order and was only for a limited time solely to address the problems that had caused the child to suffer to the extent that she had. It was clear that if sexual abuse by the father was established, relations with the father would be stopped. It was noted that the Italian court was faced with two difficult problems – on the one hand to discover the truth behind the mother’s allegations and on the other hand to prevent the child suffering further, as set out by the expert, as a result of the atmosphere created by the mother denigrating the father, and refusing to comply with court orders despite warnings. It was accepted that the order requiring mother and child to move to Italy even for a short time would cause the child upset, and might impact on the mother’s employment. Nevertheless, it was considered to be wrong to ignore the significant part that the mother’s attitude and actions had played in bringing about the present situation and the order of the Italian courts. Overall, the solution chosen by the Italian courts placed in such a dilemma was considered to have particular benefits including, inter alia, allowing the mother to remain with the child, the fact that it was only a short term measure, the fact that contact with the father was dependent upon the determination of the mother’s allegations, and that any decisions which followed would be taken by the same court that had heard this matter extensively since 2004. The High Court therefore made an order for recognition of the Italian court order, dismissed the mother’s application for a stay of the proceedings and dismissed her application for a transfer of the proceedings to the English High Court.
31. By a decision of 24 November 2009, filed in the relevant registry on 31 May 2010, the Italian Court of Cassation rejected the first applicant’s appeal on the basis that the appeal grounds were unfounded. It noted, however, that in respect of jurisdiction the Court of Appeal’s decision had been based on the application of the Brussels II Regulation, which at the time had not been applicable. In respect of other grounds of appeal it considered that the impugned decision had been comprehensive, took account of all the pleadings of the parties and appeared wholly legitimate. As to the merits, namely the admissibility and assessment of evidence, the Court of Cassation considered that the Court of Appeal had given ample, logical and correct reasons justifying its decision.
32. On 4 December 2009, the High Court in England issued a further judgment to clarify aspects of the previous judgment and ordered the execution of the Italian order by 16 December 2009. It clarified that the mother’s application for a stay of the proceedings had been dismissed together with her application that the High Court should not enforce the decision of the Italian court. The Italian authorities had provided information about where the assessment would take place, the accommodation that would be provided and further details of the plans for the mother and the child in Italy. Whilst sympathetic to the fact that the child would have to be taken out of school two days before the end of term, it was noted that proceedings in the United Kingdom had been ongoing since February 2009, and the date of enforcement continually delayed. It was noted in particular that the mother had accepted that she would be obliged to go and stay with the child in Italy to undertake assessments. This would give the child the enormous advantage of having her mother with her when she went to an unfamiliar setting. Finally, the High Court refused to extend the time-limit to appeal, but in any event refused to grant leave to appeal, as not only was the decision under consideration not contrary to public policy, but it was one which the British courts might well have followed.
33. On 11 December 2009 the first hearing in the divorce proceedings took place in Milan. The judge offered to “withdraw” the order for the placement of the child in an institution if the child entered Italy voluntarily.
34. On 16 December 2009, the English Court of Appeal dismissed the mother’s further application for a stay of the execution of the Italian order, confirming that the mother should return the child to Italy by 18 December 2009.
35. On 17 December 2009, following attempts to reacquire their travel documents, the applicants returned to Milan. On 18 December 2009, in the context of the divorce proceedings, the judge held that A.S. should remain under the custody of the Milan Municipality but that she could live with her mother for the limited time the latter was in Italy, the father to pay an allowance for the renting of an apartment.
36. In December 2009 A.S. regularly met with the doctors from Spazio Neutro (a service aiding the exercise of access rights according to Article 9 of the Convention on the Rights of the Child). From then up to June 2010 supervised access with the father took place once every two weeks and thereafter on a weekly basis.
37. On 11 January 2010, following the father’s refusal to pay the deposit for rent of an apartment, the applicants moved to Venice, although arrangements were in progress for the child to start school in Milan. On 26 January 2010 the first applicant removed A.S. from her passport following complaints by the father.
38. On 12 April 2010 the Italian inquiry into allegations of sexual abuse was discontinued, having become time-barred.
39. In the meantime, proceedings were pending in respect of the first applicant’s financial situation and the financial obligations of the parents, and various decrees were issued, including in respect of the child’s schooling. On 14 July 2010 A.S. was allowed to go on holiday to the United Kingdom with her mother. They went to England from 7 to 22 August 2010.
40. On 1 October 2010 the British police discontinued the investigation regarding sexual abuse. By a letter of 10 November 2010 the first applicant was informed that the case had also been reviewed by the Child Abuse Investigation Unit and after a careful consideration of all the facts and the recent changes in circumstances surrounding A.S. and her father’s supervised contact, it had been decided that no further active investigation would ensue.
41. The first applicant alleged that the father had again abused the child on a particular occasion when the child went to buy an ice-cream with her father with no supervision. She claimed that although she had urged the social services and medical staff to implement A. S.’s therapy, no action had been forthcoming.
42. Following the first applicant’s proposal for settlement in the context of the separation proceedings, on 16 November 2010 the father agreed to drop the judicial separation proceedings. Access decrees continued to be delivered according to the needs and in the best interests of the child, and from March 2011 A.S. was spending one weekend every fortnight at her father’s residence.
43. In February 2011 the parents commenced a mediation process at the local department in Milan.
44. On 13 May 2011 Spazio Neutro handed in another report suggesting the continuation of the current arrangements in Milan. The applicant complained that no mention was made of the fact that she would lose her job if she did not return to the United Kingdom.
45. Divorce proceedings continued in June 2011. By a decision of 13 July 2011, A.S. was to spend part of her summer holidays (24 July – 15 August) in the United Kingdom with her mother and another part (16‑28 August) with her father. A request lodged on 17 August by the first applicant for the child to have an extended period of summer holidays with her in the United Kingdom was rejected on 29 August 2011 on the ground that there had been no time for the Milan Municipality, to whom the child was entrusted, to give its approval. Moreover, it was noted that since the lodging of the request coincided with the first day of the father’s period of vacation with the child, it appeared that the request had been made with the intention of disrupting this already ordered period of holiday with the father. Furthermore, the child would have been unable to attend the visits with the social services and the municipality, if away from Italy.
46. In a social services’ report dated 26 August 2011, it was considered that the current arrangements were adequate to the minor’s needs and it would not be necessary to limit the parents’ rights any further in respect of medical and schooling issues. The report further noted with concern the repetitive requests of the parents regarding matters not related to the custody of the minor, which were taking precedence over the main issues and increasing conflict between the parents.
COMPLAINTS
47. The applicants complained under Article 6 of the Convention that the proceedings before the “ordinary” tribunal in Italy were unfair. Invoking Article 8 the applicants complained about the forced return to Italy, and considered that the Italian decisions were not necessary in the interests of the second applicant. Moreover, the English High Court had erred in rejecting the first applicant’s appeal on the ground that the decisions were not contrary to public policy. Relying on Article 2 of Protocol No. 4 the first applicant complained that she was deprived of her passport and identity card and that there was uncertainty as to whether A.S. could leave the country. The applicants also invoked Article 3 of Protocol No. 4.
THE LAW
A. Alleged violation of Article 6 of the Convention by the Italian State
48. The applicants complained under Article 6 of the Convention that the proceedings before the “ordinary” tribunal in Italy were unfair for several reasons: i) the judge ignored the serious accusation being made by the British police, failed to stay the proceedings, and went on to order the child’s return, omitting to admit the relevant video recordings; ii) the CTU dated May 2008 had observed A.S. outside her natural environment and missed the information given by A.S. in video recordings because the CTU experts failed to understand English, and one of them was not specialised in minors; iii) only two witnesses were heard for the first applicant; moreover, she was unable to attend the hearings on several occasions; iv) it had taken the courts more than six years to deliver judgment in the separation proceedings (15 June 2004 – 16 November 2010).
The provision reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”
49. The Court notes that in so far as the complaint relates to the length of the proceedings, the applicants failed to bring proceedings in accordance with the Pinto Law. However, even assuming the complaint is not inadmissible for non-exhaustion of domestic remedies, the Court notes that various orders were delivered and arrangements made throughout the proceedings. Although proceedings have been going on for more than six years, it is evident from the facts of the case that there have not been any significant periods of inactivity, or adjournments for reasons related to internal organisation (see, a contrario, Veljkov v. Serbia, no. 23087/07, § 88, 19 April 2011 and Wildgruber v. Germany, nos. 42402/05 and 42423/05, § 61, 21 January 2010). The appeal against the contested decision of 14 January 2009 was decided within less than two months, and a further appeal to the Court of Cassation within seven months. Indeed, it also transpires that the parties’ requests for urgent hearings were immediately followed up (see, for example, paragraphs 12-14 above, where the father’s request was decided within a little more than two weeks, and the mother’s in three days). Thus, although parallel proceedings in multiple jurisdictions and the fact that the courts had to decide a number of ancillary matters simultaneously could have detracted from the required speediness of child care proceedings, the Court considers that in the present case the Italian domestic courts dealt with the proceedings with the requisite diligence and this part of the complaint is therefore manifestly ill-founded.
50. As to the part of the complaint about the participation in the proceedings, the Court notes that throughout the proceedings the first applicant, represented by counsel, had the opportunity to present her arguments in writing and orally. Indeed, she presented ample submissions to the domestic courts (which had also received information from the English authorities), as evidenced by the documentation submitted to the Court and the statements made in her application. Moreover, even assuming that the first applicant missed some of the hearings, the Court notes that she was represented throughout the proceedings, and was heard regularly. It follows that this part of the complaint is also manifestly ill-founded.
51. The remainder of the complaint under Article 6 essentially relates to the outcome of the proceedings and the manner in which the domestic court assessed and interpreted the evidence which it allowed in the case. Firstly, the Court notes that it has not been claimed that the first applicant called witnesses who were rejected by the Italian courts. The Court reiterates that, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The Court has on numerous occasions held that it is not a court of fourth instance and that it is in the first place for domestic courts to interpret the evidence and apply domestic law. The Court’s jurisdiction is limited to ensuring that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable. In the case at hand, the Court sees no reason to find that the Italian courts’ decisions fell foul of these criteria.
52. It follows that the complaint under Article 6 is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
B. Alleged violation of Article 8 by the United Kingdom and Italy
53. Invoking Article 8 the applicants complained that the protracted investigations into the sexual abuse of the child by the father, which were eventually discontinued, led to the forced return of the applicants to Italy, which displaced the child and decreased the mother’s rights and resulted in her losing her job. They considered that the Italian authorities’ decisions, particularly removing the mother’s custody rights, were not necessary in the interests of the second applicant. They further complained that the English High Court had erred in rejecting the first applicant’s appeal on the ground that the decisions were not contrary to public policy, with the result that the second applicant had no guarantee of continued schooling and no period stipulated for her treatment. Likewise, the first applicant considered that she had had no guarantees of retaining her job. Thus, the British courts should not have accepted to send back the two applicants, and had therefore violated the said provision, which reads 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.”
54. The Court reiterates that it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Olsson v. Sweden (no. 1), 24 March 1988, § 72, Series A no. 130). Therefore, regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and the State enjoys a certain margin of appreciation in regard to both elements (see Hokkanen v. Finland, 23 September 1994, § 55, Series A 299-A). In this sphere, the Court’s review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. In addition, in exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced to justify the interferences at issue are relevant and sufficient (see Olsson (no. 1), cited above, § 68).
55. At the same time, the Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child has been taken into public care (see Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156). As the Court has previously observed, taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the biological parent(s) and the child. In this regard, a fair balance has to be struck between the interests of the child in remaining in public care and those of a parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. 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, 7 August 1996, § 78, Reports 1996-III).
56. The Court observes that the complaint relating to the length of the investigations was not aired before the domestic authorities and it does not appear that the applicants are complaining about their effectiveness. In consequence, the Court considers that the complaint mainly relates to the decision of the Italian courts of 26 January 2009 and its confirmation at various degrees of jurisdiction ordering the return to Italy of the applicants and giving the Milan Municipality custody of the child, as well as the decisions of the British courts recognising and enforcing the Italian decision. The complaint also includes subsequent decisions to maintain the same arrangements.
57. In so far as the complaint relates to the decision of 26 January 2009 which was confirmed by the Court of Cassation by a decision of 24 November 2009 filed in the relevant registry on 31 May 2010, the Court notes that the applicant has not submitted the date when the judgment was notified to her and in consequence it is unclear whether the complaint is within the six months’ time-limit. Similarly, the British domestic decisions were delivered in December 2009, therefore more than six months before the lodging of the application with the Court (4 December 2010). In any event, the Court considers that the global complaint is inadmissible for the following reasons.
58. It has not been contested by the applicants that the domestic decisions constituted an interference with the applicants’ family life which was in accordance with the law, and the Court considers that the measures pursued the legitimate aims of the protection of health or morals and the protection of the rights and freedoms of others, namely the child and her father. It remains to be ascertained whether the measures were necessary in a democratic society.
59. As to the part of the decision ordering the return of the child to Italy, the Court notes that permission to remain in the United Kingdom was not final, but was a temporary arrangement dependent on further decisions to be taken by the Italian courts. The Court further notes that the case, which had been pending for a number of years, required swift resolution in the interests of the child and necessitated further assessment which it was reasonable to consider would be more appropriately taken up in Italy where it had been initiated, also in view of the reasons reiterated by the Court of Appeal (see paragraph 28 above). Moreover, their return to Italy had been considered in great depth with the assistance of expert medical and social services reports. Thus, the decision was based on relevant and sufficient grounds for the purposes of paragraph 2 of Article 8.
60. As to the custody order, the Court notes from the outset that it was X., the second applicant’s father, who lodged a request with the domestic authorities to temporarily place the second applicant under the custody of the Milan Municipality (see paragraph 19 above). This request was a result of the atmosphere within the family, the allegations made against him and the first applicant’s repeated failure to respect his contact rights. The authorities considered the request appropriate and upheld it. Quite apart from the consideration of the detrimental effect the mother’s attitude was having on the child, it would further appear that the authorities upheld the request also in order to ensure the safety of the child in the light of the allegations of sexual abuse perpetrated by the father, pending the outcome of the criminal investigation. Moreover, the Italian courts took these decisions on the basis of extensive pleadings and evidence submitted to them and for the Court it cannot be said that their decisions were not aimed at the best interest of the child, or that they were taken lightly.
61. In so far as the impugned arrangements remained in force following the discontinuation of the investigations (in April 2010 in Italy and on 1 October 2010 in England), the Court notes that this was not the sole reason for issuing such a measure. Moreover, the first applicant lodged further accusations right after the investigations were discontinued. The Court further notes that the maintaining of the order thereon (up until August 2011 at least) was also based on the reports of Spazio Neutro and the social services which had regular contact with the child and the parents, and which considered that the parents were not yet ready to overcome their differences and give paramount importance to the child. Furthermore, the domestic courts took due care to recommend educational programmes for the family and to foster the parents’ reconciliation and co-operation in the best interests of their daughter.
62. The Court further notes that, while the second applicant was under the custody of the Milan Municipality, there was no period where there was a total separation from the parents. Residence was maintained with the mother, visitation rights for the father increased gradually, and holiday periods with the child were granted to both parents. While it is true that this arrangement has lasted for more than two years, it is still a temporary measure arising out of a partial decision and the above-mentioned rights were not denied or suppressed at any moment.
63. The Court observes that there is no evidence in the file showing that the contact with the second applicant’s father was harmful to the second applicant. Consequently, it considers that by allowing the father access to his daughter, which contact initially was supervised, the authorities did not fail to strike a fair balance between the interests of all the parties involved. As to the mother’s rights vis-à-vis her daughter, while it was true that she no longer had custody for this period, she had constant contact with her daughter, who resided with her. Moreover, the Court considers that the mother’s emphasis on her job could not be of any major relevance to the domestic courts’ assessment, which had to give priority to the interests of the child. Indeed, the Court considers that the domestic courts made a thorough assessment and considered all the relevant aspects of the case, giving extremely detailed and relevant reasons supporting their decisions. Moreover, as noted above under Article 6, the court considers that the decision-making process, seen as a whole, provided the first applicant with the requisite protection of her interest.
64. In the Court’s view, the Italian authorities have shown the degree of prudence and vigilance required in such a delicate and sensitive situation, and have not done so to the detriment of the first applicant’s rights or the superior interests of the second applicant.
65. The Court further notes the detailed assessment of the British domestic courts that accepted to enforce the Italian domestic decisions, after having examined all the relevant submissions and evidence presented before the Italian domestic courts. Again in the Court’s view these decisions were based on relevant and sufficient reasons and struck a fair balance between the competing interests.
66. It follows that the entire complaint is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
C. Alleged violation of Article 2 of Protocol No. 4 to the Convention
67. Relying on Article 2 of Protocol No. 4 the first applicant complained that following the enforcement of the repatriation order, by a decision of the English High Court she was deprived of her passport and identity card. She claimed that the restriction was not just or necessary, particularly in view of her work commitments. Moreover, on 18 December 2009 a judge’s order removing A.S. from the first applicant’s passport was issued and forwarded to the police. In contrast, a judge’s order of 14 July 2010 granting A.S. permission to leave the country for a two week holiday was not forwarded to the police, thus there was uncertainty as to whether A.S. could leave the country. The provision reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
68. In so far as the complaint relates to the English High Court decision, the Court recalls that the United Kingdom has not ratified Protocol No. 4 to the Convention.
69. It follows that this part of the complaint is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.
70. As to the second part of the complaint, directed against Italy, the Court notes that in their application the applicants admitted (see paragraph 39 above) that both of them left the United Kingdom on 7 August 2010 and returned on 22 August 2010. In consequence they cannot be considered victims of the alleged violation.
71. It follows that this part of the complaint is also inadmissible as incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.
D. Other alleged violations
72. The applicants also invoked Article 3 of Protocol No. 4 without specifying on which basis or against which State. The provision reads as follows:
“1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
2. No one shall be deprived of the right to enter the territory of the state of which he is a national.”
73. The Court notes that the applicants are Italian nationals. Thus the complaint can only be directed against Italy. It further notes that the applicants have not been expelled from Italy, and neither have they been denied the right to enter Italy.
74. It follows that the complaint is inadmissible as manifestly ill‑founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley NaismithFrançoise Tulkens Registrar President
Full & Egal Universal Law Academy