Information Note on the Court’s case-law 247
January 2021
Terna v. Italy - 21052/18
Judgment 14.1.2021 [Section I]
Article 8
Article 8-1
Respect for family life
Taking into care of the Roma granddaughter of the applicant, who had had custody of her since birth, and failure to implement visiting rights: violation
Article 14
Discrimination
Ethnic origin not the reason for the removal and placement in care of the Roma granddaughter of the applicant, who had had custody of her since birth: no violation
Facts – The applicant, an Italian national, had been convicted of various criminal offences. She had had custody of her Roma granddaughter since the latter’s birth in 2010.
Since 2016, when the child was taken into care, the applicant had been constantly requesting the court to arrange visits for her, but she had been unable to exercise her visiting rights despite the decisions given by the court. Subsequently the child had been put up for adoption and the applicant’s visiting rights had been suspended.
Law –
Article 8: The child’s parents had been stripped of their parental authority, and even in the absence of an official procedure to place the child in the custody of the applicant, her grandmother, the latter had taken care of her since her birth, a close personal bond had grown up, and the applicant had behaved in all respects as if she had been her mother. Consequently, the relationship between the applicant and her granddaughter were, in principle, of the same nature as the other family relationships protected by Article 8.
The applicant had constantly endeavoured to resume contact with the child since the latter’s placement in a home, and despite all the court’s various orders, she had been unable to exercise her visiting rights.
In the present case, the authorities had clearly been facing a very difficult situation stemming, in particular, from the risk of abduction alleged by the guardian and the implications in terms of organising visits. However, the court twice ordered the social welfare services to organise the visits in such a way as to guarantee the anonymity of the home where the child had been placed, but those services at no stage acted on the court’s orders.
The authorities had not shown the requisite diligence in the instant case, and had failed to take the action which could reasonably have been expected of them. In particular, the social welfare services had done nothing to create the requisite conditions for full implementing the applicant’s visiting rights.
The domestic courts had been slow to take the practical action required in order to establish effective contact between the applicant and the child, and had subsequently, for a time, “tolerated” her inability to see her granddaughter. In particular, the court decided to suspend the applicant’s visiting rights pending the submission of an expert report, when in fact no visits had ever been organised.
Even though the Court considered the legal resources provided under Italian law sufficient for the respondent State to be able to honour its positive obligations under Article 8, it cannot be overlooked that the authorities, for a period of time, allowed a de facto situation to establish itself, despite a number of judicial decisions, completely ignoring the probable long-term effects of permanently separating the child from the person responsible for looking after her, that is to say the applicant.
Having regard to the foregoing considerations and notwithstanding the respondent State’s margin of appreciation in this sphere, the domestic authorities had failed to expend appropriate and sufficient efforts to ensure compliance with the applicant’s visiting rights, flouting her right to respect for her family life.
Conclusion: violation (unanimous).
Article 14 read in conjunction with Article 8: The domestic courts took the applicant’s granddaughter into care on the basis of expert assessments which had found that the applicant was incapable of playing the role of a parent, and that the child was facing increasing difficulties in a criminal environment, and had begun to display attachment disorders. Following the child’s placement in a home, the court twice ordered the maintenance of contacts between the applicant and the child.
Moreover, the child’s guardian had asked the Guardianship Court to suspend those contacts on account of a risk that the child would be abducted by fellow members of the Roma community. Although, initially, the Guardianship Court provisionally allowed the guardian’s request by ordering the suspension of visits and adopting provisional measures to prevent the child’s abduction, the court, examining the merits of the case, varied its decision and ordered the competent authorities to ensure that the visits to the child could take place, while preserving the anonymity of the home where she had been placed.
The fact that even though the contacts had been ordered by the court no visits ever took place constituted mismanagement of the visits by the social welfare services, leading the Court to find a violation of Article 8 on account of the lack of adequate and sufficient efforts by the domestic authorities to ensure respect for the applicant’s visiting rights. The delays, as transpires from the Court’s case-law, pointed to the existence of a systemic problem in Italy.
The third party referred to a 2011 survey which had shown that a large number of Roma children were taken into care in Italy. Yet the domestic courts had not used arguments concerning the child’s and her family’s ethnic origin to justify taking her into care. The latter action had been explained by the best interests of the little girl in being removed from an environment in which she had been heavily penalised in a variety of ways, and also on account of the applicant’s incapacity for playing the role of a parent.
As regards the guardian’s attitude, although her considerations had reflected prejudices and could not be dismissed as unfortunate, albeit objectionable, remarks, in themselves they provided an insufficient basis to conclude that the courts’ decisions had been motivated by the child’s and her family’s ethnic origin. Even though the Guardianship Court had provisionally allowed the guardian’s request by ordering the suspension of visits and adopting provisional measures to prevent the child’s abduction, that decision had subsequently been varied by the court.
Conclusion: no violation (unanimous).
Article 41: EUR 4,000 in respect of non-pecuniary damage.
(See also Jansen v. Norway, 2822/16, 6 September 2018, Information Note)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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