SH v Italy – violation of Article 8 by failing to support family to stay together

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 Facts

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?


19 thoughts on “SH v Italy – violation of Article 8 by failing to support family to stay together

  1. Julie D

    Thank you so much for this very important piece of news especially as I am adding it to student reading today!

    However, do you know what was meant by ‘the project’s bankruptcy’? A support service collapsing a la Kids Company, or a failure of the plan to keep this family together? If not, I will have a go at google translate too.

    1. Sarah Phillimore Post author

      It must mean the failure of the plan to reunify, once the mother’s mental health got worse, as I have not found any suggestion reunification failed because of lack of resources – so not the best translation.

      There are a couple of sentences which need a different translation but on the whole I am very impressed!

  2. Sam

    What are the practical implications of this judgement? Does it mean that if a parent asks for help ,and none is provided but the child is placed on a child protection plan that article 8 is then breached or is it just for care proceedings or only for adoption?
    Can it apply to families already parted for instance when a parent cannot access therapy because the NHS won’t provide it?
    Is it worth waving this under a local authority’s nose?

    1. Sarah Phillimore Post author

      I was emailed this recently:-
      hansard from Wed ( October 14th 2015 ) : Q4. [901524] Kit Malthouse (North West Hampshire) (Con): The Prime Minister recently spoke movingly and shockingly about the life of despair that still lies ahead for too many of our looked-after children.
      Notwithstanding the vital work that has been done in recent years, will he expand on the reforms that he proposes for these, our most vulnerable citizens?The Prime Minister: I am grateful to my hon. Friend, who knows a lot about this from the work he did in London when working for the Mayor.
      I think that there are two areas we need to look at most of all. First, we need to speed up adoption processes. We should be reducing the number of children in care by ensuring that they can find loving family homes. We have made some progress, but frankly we have had set-backs, not least because of some of the judgments in our courts, so we need to get the level of adoption back up again. Secondly, we need to take some of the knowledge from our education reforms and use it to reform social services.
      For example, we need to see the best graduates going into social work.
      Frankly, those social services that are failing need to be taken over far more quickly.

      I think there is a very real risk that this ‘push’ for adoption is going to impact on the willingness and ability of LA to offer services to help vulnerable families stay together. This recent judgment is a very clear statement of the law. there is a serious argument that current government policy is therefore unlawful; as the focus seems simply on getting children in care adopted rather than trying to support their return to their families.

      there is also the point raised by John Hemming that these ‘adoption targets’ must be having an influence on rates of children taken into care in the first place. The Transparency Project is currently wading through a mass of FOI responses to see if there is anything in the data to support that. Its going to be a mammoth project but we hope to report early in 2016.

      It is always worth bringing these kinds of authorities to their attention but it may not achieve much of a practical impact in individual cases, unless you are appealing of course.

  3. Sam

    Thanks Sarah. So if the current law is unlawful , there could be a case for judicial review, taken through by an interested organisation or individual? That is I understand however very expensive and I suppose it’s unlikely to happen. Or as you said on appeal .I really don’t understand why the Government cannot see that supporting families is more stabilising and cost effective in the long term. Unless it is about social engineering , after not many on the margins of society are likely to vote Conservative. I am not sure it was any better under a Labour government though , as I had no involvement then.

    1. Sarah Phillimore Post author

      I just don’t think JR is ever the appropriate challenge for this kind of unlawfulness – we are talking about the substance and the heart of the law, not just its procedural technicalities. Also the remedies in judicial review don’t seem of much use. I would rather see a proper challenge on Human Rights grounds, which would also be politically very interesting and probably mean that the judiciary and the current government would be waging open war on each other.

  4. Sam

    Does that put paid to the argument that it is too expensive to provide support in some areas? Correct me if I am wrong but a large proportion of Wales would be classified as an area of low income with all the health and social care concerns that go along with that. I do know that pre this programme that some local authorities in Wales were extremely under resourced and reactive rather than preventive. One county Bridgend had a rash of teenage suicides, which have now been swept under the carpet. Presumably this has now changed.
    I do think the Welsh Assembly Government is more flexible and willing to listen than Westminister. Perhaps there are more normal, grass roots people as Assembly members rather than elite professional politicians that dominant in England.

  5. claire smith

    Can I ask the legal professionals here a question. Could a bollocking from Europe about the UK’ s current legislation result in a retrospective change in our Adoption Orders here. So, to put it baldly, would my son’s birth family theoretically be able to reopen a case about his adoption if a judgement was made by Europe in a current appeal?

    1. Sarah Phillimore Post author

      Theoretically. But in practice, if a child has lived for years with one family, I can’t see that any court could possibly order a return to another family who would be effectively strangers. They might have to consider direct contact or some kind of ‘co-parenting’ if the respective adults could manage that.

      I think its impossible to say what might happen at this stage; we don’t seem to be even close to England getting a bollocking and we are unlikely to ever see this because the ‘campaigners’ such as Hemming are making sure they run utterly witless arguments in Europe along the lines of deliberate fabrication of court documents and ‘targets’ to ‘destroy families’. So the good arguments that could be made are drowned out in that kind of rubbish.

      Relevant facts would be – length of time that’s passed since adoption, child’s memory/experiences of birth family, birth family’s willingness to support child’s relationships with adoptive family.

      Article 8 and family life is not just about blood ties, its about psychological integrity and identity. An adoptive family where the child has lived for many years is now a significant part of that psychological integrity and can’t be lightly set aside.

  6. angelo granda

    Let us not resort to course language,please ladies , as we do not want the floodgates blown away.
    As Sarah suggests,no matter what human rights children ( and families) have, Family Courts will always come up with reasons to justify the continuation of wrongful forced adoption.
    They do not have to admit they are wrong and follow ECHR objectives. As with safeguards and procedures,ECHR objectives can be flouted too.It takes several years for a parent to get a case to the European Court and even if they won a case there, the Local Authority might refuse to obey its order.
    If a tyrannical authority refuses to acknowledge concerns and change, and will only bring up further arguments to sustain a wrong adoption order ( saying it is in the best interests of the child’s welfare)and the lawyers take it seriously, then what can be done?

    Perhaps a little honesty is called for.
    An adoptive parent should ask ” If I were unjustly taken from my natural family, would I want the mistake to be rectified and to be restored to my family? Or would I prefer to remain in the unnatural family?

    Article 8 may not only be about blood ties,lawyers,but mainly it is so you should concentrate on them, in my opinion.

    1. Sarah Phillimore Post author

      I will use whatever language I find appropriate. It is not your role to police that language, nor to do so in such sexist terms. I am not a ‘lady’. I am a human being and I use language as a tool to communicate. In this context ‘bollocking’ is more than apt.

      I am afraid I don’t think it is right to say ‘Article 8 is mainly about blood ties’. As ever, much will depend on the facts of the case. I have dealt with cases where the parent had no blood tie whatsoever but was clearly the child’s psychological parent. It was that relationship that prevailed as the ‘blood’ parents had not had any contact with the child for over three years.

      Blood ties are important but they are just one piece of the fascinating jigsaw that makes us who we are. Elevating any one piece of that jigsaw to ultimate significance, as part of a philosophy, rather than looking at the facts on the ground – is dangerous. We should always focus on the individual child and what he or she needs, not on our own agenda.

  7. angelo granda

    However, it is only natural that the Public will find it perverse for Local Authorities to decide against unifying wrongly adopted (or fostered children ) with their real parents using arguments which should have been applied originally and prevented the wrong decision.

    I understand that lawyers have to take instructions and argue whatever the LA wants and that the Public’s definition of ‘hypocrisy’ will be different to the average social worker but I feel it totally beyond reason to sustain wrongful permanency plans on the grounds you have mentioned.
    Such plans should never be final.

  8. angelo granda

    I am not sure if you are joking or not about my addressing you as a lady???

    Surely you are………………! Or perhaps not………?

    I didn’t mean to upset Claire Smith or your goodself.

    1. Sarah Phillimore

      If the definition of being a ‘lady’ means I am not allowed to say ‘bollocks’ or any variation thereof, then I am afraid I fall at the first hurdle.

      1. angelo granda

        The suggestion that I used a ‘sexist’ term when referring to ‘ladies’ may or may not have been light-hearted.
        However,it perhaps illustrates to all of us why there is often such a wide gulf between child-protection professionals and the general Public.

        There may be a generation gap.

        There is also a gap in culture and beliefs and values due to life experiences,training etc.Heaven knows what nonsensical standards and theories are drummed into young, novice SW’s about child care practice, pre-contemplation etc.

        As a woman and a lawyer in an environment where political-correctness is increasingly dominant,you have very different values to mine in many ways.

        It does not matter that I was innocent of sexism. I was merely being polite in the manner I have been brought up. I suppose cp professionals might say, therefore, that I am caught up in cycle of deprivation and sexist behaviour.

        It is not important that I am not. The fact is that the professionals think I am!

        Sarah, if you try from now until doomsday, I doubt if you could persuade me to accept that calling you a lady was a valid concern.

        Can you see how different we are? Can you see also how different cp professionals are from ordinary parents in the real world and the potential for wrong decision making?

        If you can then perhaps you will support the view that serious cases should be held before a jury of peers. Twelve carefully selected parents would be ideal.

        Such decisions should not be taken by a tribunal of professional ‘child rescuers’.They should be taken by occupants of the real world,one where progress, here today-gone tomorrow social work theories and political correctness are not so high on the agenda. If value judgments are to be made then I think juries are essential.

        As usual, all comments welcome.

        1. Sarah Phillimore Post author

          Us being ‘different’ should not mean that you simply refuse to listen to my point of view and respect it. I certainly won’t bother trying from ‘now until doomsday’ to help you understand why calling me a ‘lady’ is something that I find offensive and belittling. Because it is a term of diminishment, or at least that is how I see it. ‘Ladies’ don’t bother their little heads about the important stuff. ‘Ladies’ just get on with cooking and cleaning.

          Of course, I accept that you did not set out to deliberately offend and belittle me. But language IS important. It shapes our thoughts and our perceptions of the world. That’s why some words now have such huge power to wound and hurt, because they are not ‘just’ words, they come with a massive baggage of prejudice and fear. That’s why we can’t just bandy about the word ‘nigger’ at will.

          Yes, its pretty trivial me getting worked up over ‘lady’ as opposed to ‘nigger’ or ‘paki’ or ‘dirty Jew’ – I do get that. but I think all these words and phrases are on the same spectrum. They are words and phrases used to convey a certain mind set, either consciously or unconciously.

          You are right that we need to appreciate differences and not judge people automatically or harshly because they are different. But equally we all have a responsibility to be mindful of how we are seen by others and what the impact of our words and actions are.

  9. angelo granda

    I respect your opinion as always. I was trying to make something positive out of the point of issue.
    Can you see what I mean about juries ?
    This thread is about Article 8 (proportionality).As massive decisions are being made, wouldn’t it be more in keeping ( proportionate) for them to be considered fairly by a panel of jurors ?

    1. Sarah Phillimore Post author

      Not if your complaint is that evidence is not properly analysed and considered. the jury can only make a decision on the evidence in front of them. The jury system is also cumbersome and expensive – I am not sure how we are going to find 12 people willing to give up their time for the many thousands of care cases that are heard each year. It could lead to massive delays for parents in getting their case heard AND I have heard worrying anecdotes about the quality of jury decision making.

      I think the answer to what both you and I agree is a problem is that family courts must become more open to scrutiny and journalists must be allowed to report more widely. We all need to have confidence in what is done in our name and on our taxes.

      Another reform I have been pondering is to seriously consider ‘triaging’ care cases. So the ones involving drug use/neglect over many years and parents aren’t engaging with support – those get fast tracked in a more administrative system. The money we save there can then go to the cases of non accidental injury where we could switch to a quasi criminal set of proceedings.

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