Information Note on the Court’s case-law 189
October 2015
S.H. v. Italy - 52557/14
Judgment 13.10.2015 [Section IV]
Article 8
Article 8-1
Respect for family life
Placement order for adoption irreversibly severing children’s contact with their mother and contrary to the conclusions of the court appointed expert: violation
Facts – The applicant, the mother of three children, suffered from depression. In August 2009 the social services informed the Minors Court that, on a number of occasions, the children had been admitted to hospital following the accidental ingestion of medication. Urgent proceedings were opened in that court, which ordered their placement in an institution. The parents acknowledged that on account of the applicant’s depression they had had difficulties, but said that they could look after the children with the help of the social services.
The social services proposed a family support plan and the children returned to their parents in January 2010. The father left the family home and the applicant was admitted to hospital as her health worsened. In the light of those developments, the court ordered the children’s placement in an institution and granted the parents a right of access.
In March 2010 a procedure was opened by the court with a view to the children’s adoption. The applicant opposed this, insisting that no situation of abandonment existed in reality. The experts appointed by the court to assess the family situation and the parents’ capacity to fulfil their role considered a series of support measures to enable the children’s return to their family, with a fresh assessment of the parents’ capacity after six months. The experts’ report was filed in the court’s registry in January 2011.
In March 2011 the court declared the children adoptable, in spite of the experts’ indications and without leaving any opportunity for the support measures to be put in place and brought to fruition. That decision was upheld by the Court of Appeal and the Court of Cassation.
In February 2014 the applicant appealed against the adoptability decision to the Minors Court. In support of her request she submitted medical documentation attesting that her health had, in the meantime, improved, and seeking to prove that the conditions justifying the declaration of adoptability were not satisfied.
Law – Article 8: Unlike other cases that the Court had had occasion to examine, the children in the present case had not been exposed to a situation of violence or of physical or psychological ill-treatment, * or to sexual abuse.
The procedure for declaring the children adoptable had been opened on account of the worsening of the applicant’s state of health, which had led to her admission to hospital, and the disruption of the family situation following the parents’ separation.
The Court had no doubt that, in the circumstances, an intervention by the competent authorities in order to protect the children’s interest had been necessary. It had some doubt, however about the adequacy of the intervention decided and took the view that the authorities had not made sufficient efforts to protect the mother-child relationship. Other solutions were practicable, such as those envisaged by the experts and in particular the introduction of specific social assistance such as to enable the difficulties related to the applicant’s health to be overcome, thus preserving the family relationship while protecting the children’s best interests.
On a number of occasions, the applicant had sought the intervention of the social services to obtain support in looking after her children. Her requests did not reflect a lack of capacity to exercise her role as parent and did not justify the court’s decision to declare the children adoptable. A response by the authorities to the applicant’s requests for help could have protected both the children’s interest and the maternal bond. It would also have been in conformity with the recommendations of the experts’ report and the provisions of the law whereby a permanent severance of the family bond must remain the last resort.
Even though less radical solutions were available, the domestic courts had nevertheless declared the children adoptable in spite of the experts’ recommendations, thus leading to their final and irreversible removal from their mother. In addition, the three children were placed in three different foster families, resulting not only in the break-up of the family but also the separation of the siblings.
The necessity, which was paramount, of preserving as far as possible the bond between the applicant – who was in a situation of vulnerability – and her sons had not been duly taken into consideration. The judicial authorities merely considered the family difficulties, which could have been overcome by specific social assistance, as indicated in the experts’ report. While it was true that an initial series of support measures had been put in place in 2009 and had failed on account of the applicant’s illness and her separation from her husband, those circumstances did not suffice to justify the removal of any opportunity for the applicant to re-establish a relationship with her children.
Having regard to those considerations and notwithstanding the State’s margin of appreciation in such matters, the Italian authorities, by only envisaging the final and irreversible severance of the family relationship, when other solutions to safeguard both the children’s interest and the family bond would have been practicable, had not made appropriate and adequate efforts to ensure respect for the applicant’s right to live with her children, thus disregarding her right to respect for her family life, as guaranteed by Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 32,000 for non-pecuniary damage.
(See also Kutzner v. Germany, 46544/99, 26 February 2002, Information Note 39; and Couillard Maugery v. France, 64796/01, 1 July 2004, Information Note 66; see also the Factsheet on Parental rights)
* See, for example, Y.C. v. the United Kingdom, 4547/10, 13 March 2012, Information Note 150.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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