Information Note on the Court’s case-law No. 143
July 2011
Šneersone and Kampanella v. Italy - 14737/09
Judgment 12.7.2011 [Section II]
Article 8
Article 8-1
Respect for family life
Order for return of minor child, who had been living with mother in Latvia, to father in Italy without due consideration of child’s best interests: violation
Facts – The second applicant, whose mother (the first applicant) is Latvian and father Italian, was born in Italy in 2002. A year later his parents separated and he has lived with his mother ever since. The mother was granted custody by an Italian court in September 2004. She left Italy for Latvia in April 2006 taking the second applicant with her. Subsequently, the Italian courts granted the father sole custody. In 2007 the Latvian courts decided on the basis of a psychologist’s report that the boy’s return to Italy would not be in his best interests and might even provoke neurotic problems and illnesses. The Italian courts subsequently ordered the child’s return to Italy on the basis of European Council Regulation No. 2201/2003 concerning jurisdiction in matters of parental responsibility (“the Regulation”). Latvia brought an action against Italy before the European Commission in connection with the return proceedings but, in a reasoned opinion, the Commission found that Italy had not violated either the Regulation or the general principles of Community law.
In their application to the European Court, the applicants complained that the Italian courts’ decisions ordering the second applicant’s return to Italy were contrary to his best interests and to international and Latvian law. They further complained that the Italian courts had heard the case in the first applicant’s absence.
Law – Article 8
(a) The return order – The Italian court’s order for the child’s return to Italy constituted an interference with the applicants’ right to respect for their family life. The interference was in accordance with the law (Article 11 of the Regulation in combination with Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction) and pursued the legitimate aim of protecting the rights and freedoms of the child and his father.
As to whether the interference had been necessary in a democratic society, the reasoning in the Italian courts’ decisions was rather scant. Even assuming that the Italian courts’ role was limited by Article 11(4) of the Regulation to assessing whether adequate arrangements had been made to secure the child’s protection after his return to Italy from any identified risks within the meaning of Article 13(b) of the Hague Convention, the fact remained that none of the risks identified by the Latvian authorities were addressed by the Italian courts. The Italian courts did not refer to the two psychologists’ reports that had been drawn up in Latvia or to the potential dangers to the boy’s psychological health the reports identified. No effort was made by the Italian authorities to inspect the accommodation proposed by the father to establish its suitability as a home for a young child. The Court was thus unpersuaded that the Italian courts had sufficiently appreciated the seriousness of the difficulties the child was likely to encounter in Italy. Nor could the “safeguards” of the child’s well-being accepted by the Italian courts be regarded as adequate: allowing the first applicant to stay with the child for fifteen to thirty days during the first year and then for one summer month every other year was a manifestly inappropriate response to the psychological trauma that would inevitably follow a sudden and irreversible severance of the close ties between mother and child; the provision of facilities such as a kindergarten, swimming pool and Russian-language classes could in no way compensate for the child’s drastic immersion in a linguistically and culturally foreign environment; and external psychological support could not be considered equivalent to the support intrinsic to strong, stable and undisturbed ties between a child and its mother. Nor had the Italian courts considered any alternative solutions for ensuring contact between the boy and his father. The interference had thus not been necessary in a democratic society.
Conclusion: violation (six votes to one).
(b) Procedural fairness – Taking into account that both the father and the first applicant had submitted, with the aid of counsel, detailed written statements to two levels of Italian jurisdiction, the Court, like the European Commission, was satisfied that the procedural fairness requirement of Article 8 had been observed*.
Conclusion: no violation (unanimously).
Article 41: EUR 10,000, jointly, in respect of non-pecuniary damage.
* Whilst it contains no explicit procedural requirements, Article 8 requires that the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by that Article.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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