The case of SH v Italy was decided on 13th October 2015 – the judgment is in French. Citations here have been provided in English via Google Translate.
The court unanimously found violation of the mother’s Article 8 rights and awarded her 32,000 Euros in compensation.
The mother, had 3 children, born in 2005, 2006 and 2008. She had depression and was taking medication. On 11th August 2009 the Italian authorities removed the children from the care of the parents after several incidents where the children had ingested medication and required hospitalisation.
On 20th October 2009 the parents conceded they were struggling but they could care for the children with the help of Italian social services and the children’s grandfather. On 3rd December 2009 a psychiatrist concluded that the children should be reunited with their parents; the mother was following ‘pharmacological therapy’, was willing to undergo psychotherapy and had a very strong emotional bond with the children. The Italian equivalent of the children’s guardian agreed and recommended the reunification of the family with a support package.
On January 19th 2010 the Italian court ordered the return of the children. However, sadly in March 2010 the children were once again removed as the mother was hospitalised, had separated from the father and the grandfather was ill. There then followed a period of delay until the court ordered an expert’s report in October 2010. The report came in January 2011 and recommended that the children remain in foster care while contact with their parents was increased and the matter re-assessed in 6 months time.
However, the court rejected these recommendations and on 1st March 2011 ‘declared the children adoptable’ and contact ceased. The court relied upon the ‘serious mental problems’ of the mother and that the father could not show affection to the children and displayed aggression in his interactions with social workers.
The parents appealed but this was rejected by the Appeals Court in Rome in February 2012:
The Court of Appeal observed that the authorities had made the necessary efforts to ensure support to parents and to prepare the return of children to their families. However, the project had failed, which demonstrated the inability of parents to exercise their parental role and the lack of transitional nature of the situation. Based on the findings of social services, the appeal court emphasized that the project’s bankruptcy had had negative consequences for children and adoptability was to safeguard their interest in being welcomed into a family able to care for them adequately, that their family of origin was not able to do because of the mother’s health and the father’s difficulties. The Court of Appeal noted that there had been positive developments in the situation, as the awareness of the mother of her health problems and her willingness to follow a treatment course and the father’s efforts to find resources to take care of his children or the availability of the grandfather to help his son. However, according to the Court of Appeal, these elements were not sufficient for the purposes of assessing the ability of the parents to exercise their parental role
A further appeal to the Supreme Court failed. In February 2014 the mother attempted to revoke the adoption order but was unsuccessful and thus she applied to the European Court, claiming a violation of her rights under Article 8 of the ECHR, in that the Italian authorities had not met its obligation to provide support to keep the family together. The children ended up in 3 different places; not only did they lose their relationship with their parents, but also with each other.
The Italian Government argued that it had acted to protect the children; the first attempt to reunify the family had failed and the children had suffered harm to their emotional development.
The judgment of the European Court
The court commented at paragraph 41:
It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with its positive obligations under Article 8 of the Convention and the Court whether, in the application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, in particular taking into account the best interests of the child (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC ] No. 41615/07, § 141, ECHR 2010, KAB c. Spain, No. 59819/08, § 115, 10 April 2012, X c. Latvia [GC], No. 27853/09, § 102, ECHR 2013).
The crucial question here was whether, the Italian authorities had taken all necessary and appropriate measures that could reasonably be required of them for the children to lead a normal family life with their own families.
The court noted at paragraph 47:
The Court notes that the expert appointed by the Court envisaged a course of rapprochement between parents and children, with an intensification of meetings and a review of the situation after six months. The proposed solution was based on the existence of strong emotional bonds between parents and children, as well as the overall positive assessment of the capacity of parents to fulfil their role and their willingness to collaborate with social services. The Court noted that the expert in question was lodged at January 13, 2011 and only two months later, i.e. on 1st March 2011, the court, contrary to the indications of the expert, said children adoptable and ordered the suspension of meetings. The decision to cut immediately and definitively the maternal bond was taken very quickly, without careful analysis of the impact of the extent of adoption of the persons concerned and despite the provisions of the law under which the declaration of adoptability must remain the extrema ratio. Therefore, the court, in refusing to consider other less radical solutions feasible in this case, such as family support project envisaged by the expertise, dismissed any final opportunity for the project to succeed and for the applicant to reconnect with his children.
The court examined other authorities where the positive obligations of the state had been examined. It agreed it was not always clear cut where the decision should be made that a state had failed to meet those obligations and member states retain a ‘margin of appreciation’.
However, at para 57 the court commented:
The Court does not doubt the need in the situation of the case, an intervention by the competent authorities for the purpose of protecting the interests of children. However, [the court] doubts the appropriateness of the intervention chosen and believes that the national authorities have not sufficiently worked to save the mother-child bond. It observes in fact that other solutions were feasible, as envisaged by the expert and particularly the implementation of targeted social assistance that will help overcome the difficulties associated with the health status of the applicant , preserving family ties while ensuring the protection of the best interests of children.
At paragraph 54 the court very clearly re-stated the role of state agencies in this kind of situation; vulnerable people require greater protection:
The Court reiterates that the role of social protection authorities is precisely to help people in difficulty, to guide them through the process and advise, among others, on how to overcome difficulties (Saviny v. Ukraine, no 39948/06, § 57, 18 December 2008; RMS v Spain. no 28775/12, § 86, 18 June 2013). In the case of vulnerable people, authorities must show particular attention and must ensure their greater protection (B. v. Romania (no O2) n o 1285 to 1203, §§ 86 and 114, February 19 2013; Todorova v Italy. n o 33932/06, § 75, 13 January 2009; RMS c. Spain, no 28775/12, § 86, June 18, 2013; Zhou, cited above, §§ 58-59; Akinnibosun c. Italy, cited above, § 82).
Impact for English courts
Despite the very clear declaration of the President in Re B-S about the positive obligations upon States to keep families together and that adoption must be a ‘last resort’, it is clear that there is a tension between this obligation and the requirement that care proceedings must conclude as quickly as possible in or any event within 26 weeks. Access to mental health services is poor and parents will often find themselves on a waiting list for therapy, to be told this is ‘outside the child’s timescales’.
The salient facts here were the clear recognition of the strong bonds between mother and children and the fact that the consequences of failure to reunifiy the family were so serious, in that the children lost their relationship with their parents and each other. These considerations will not be present in all cases; proceedings involving babies removed at birth will not compell consideration of an existing bond, but whether or not that bond should be permitted to develop. That may well lead to decisions to remove that are considered proportionate.
However, this very clear re-statement by the European Court of what is mean by a state’s positive obligation towards families, is another interesting authority to suggest that the UK may find itself vulnerable to serious criticism at some future point.
For example, it is interesting to note the positive research about the impact and efficacy of the Family Drug and Alcohol Courts and yet this model is still not being rolled out nationally. Are we really confident that the way we approach care proceedings with a care plan for adoption, is going to survive scrutiny in the European court?