The dangers of ‘absolutism’ when considering the ‘interests of the child’.
Many thanks to Clare Fenton Glynn for alerting me to this recently decided case in the European Court – only a French version of the judgment is so far available but I have run it through Google Translate and this seems a pretty good translation.
Summary of the facts and decision
The case involved a family with (eventually) ten children who were first involved with Portuguese social services in 2005. There were concerns that the children were neglected primarily due to the parents’ poverty and the father’s absence from the home. Alarmingly, the mother was expected to undergo sterilisation by tubal ligation as part of a package of measures set out by social workers to improve the family’s position. By 2012 nothing much had improved and the Portuguese state took measures to have the youngest 8 children adopted – then aged 6, 5, 3, 2 years and 7 months.
The mother argued that the only reason to justify the adoption was the family’s poverty; there was no evidence that either parent had abused the children and there were strong emotional ties between family members (para 77). Further, the family had not received adequate help and support (para 78) and it was unacceptable to expect the mother to agree to be sterilised (para 79). There were complaints about lack of contact with the children (para 80) and that the parents were prevented from being able to participate effectively in the proceedings (para 81). The final objection was that the family court relied solely on evidence from social workers and should have had expert evidence to assess emotional issues relating to the children (para 81).
The findings of the Court are set out from paragraph 88. It emphasises the principle that a child can only be removed from his family if it is ‘necessary’. The State is under positive obligations to keep a family together. The Court found that the family had not been given sufficient support (para 106). With regard to the requirement that the mother be sterilised, the Court declared that to impose such a medical procedure on a person without their consent was incompatible with the freedom and dignity of that person. Less intrusive contraceptive arrangements could have been considered (para 111).
The Court found a clear violation of Article 8, ordered payment of EUR 15,000 in damages and that the Portuguese authorities reconsider the children’s situation and take the appropriate action.
This case is significant in particular for the last 2 paragraphs of the concurring opinion of Judge Sajo:
Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).
The unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.
The original judgment in French.
For further detailed commentary, see this post from the blog Strasbourg Observers.
The English translation is set out below.
CASE SOARES DE MELO c. PORTUGAL
(Application No. 72850/14 )
February 16, 2016
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Melo Soares c. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Paulo Pinto de Albuquerque,
Iulia Motoc Antoanella, Judges,
and Françoise Elens-Passos, Clerk section,
Having deliberated in private on 26 January 2016
Delivers the following judgment voic i, adopted on that date:
1. At the origin of the case in an application (No. 72850/14 ) against the Portuguese Republic and one national of Cape Verde, Ms. Liliana Sallete Soares de Melo ( “the applicant”), referred to the Court 5 December 2014 under Article 34 of the Convention Protection of human rights and fundamental freedoms ( “the Convention”).
2. The applicant was represented by MC’re Almeida Neves and P. Penha Gonçalves, lawyers in Algés. The Portuguese Government ( “the Government”) were represented by their Agent, Ms MF da Graça Carvalho, Deputy Attorney General.
3. The applicant complained of a breach of his right to respect for family life as guaranteed by Article 8 of the Convention, due to the application of institutionalization measuring seven of his children for their adoption.
4. On 17 February 2015, pursuant to Article 39 of the Rules, the Court asked the Government to implement interim measures to allow access by the applicant to his children and restoring contact between them time ruling on the case. It also decided that the application should be given priority, pursuant to Article 41 of the Rules.
5. On 1 April 2015 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1977 and lives in Algueirão-Mem Martins.
7. She is the mother of ten children:
– S., a girl, born in 1993,
– E., a girl, born on 20 June 1995
– I., a girl, born on 27 August 2001
– M., a boy, born July 21, 2004
– Y, a boy, born August 22, 2005
– IR, a boy, born October 10, 2006
– L. and S., a boy and a girl, twins, born on 18 September 2008,
– A., a boy, born November 13, 2009, and
– R., a girl, born November 25, 2011.
A. On the procedure for promotion of the rights and protection of children
1. The procedure before the child welfare committee and youth Sintra
8. In 2005, the situation of the family was reported to the Committee of Protection of Children and Youth (Comissão de crianças e jovens proteção) ( “the CPCJ”) Sintra the ground that the applicant was unemployed for four years and that the children’s father was polygamous and often away from home.
9. On 4 January 2007, pursuant to Article 55 of the law on the protection of children and youth at risk (lei proteção das crianças e jovens em perigo) ( “the LPCJP”), establishes the CPCJ agreement to promote the rights and child protection ( “protection of the agreement”) with the applicant and spouse concerning minors E., I., M., Y. and IR for a period of one year. This agreement had read the relevant parts in this case:
“1. The mother will retain custody of minor E., I., M., Y. and IR She will care for them, their livelihoods and ensure their education, training, health and all other interests ;
2. The mother will include:
a) ensure the attendance and punctuality of children in school;
b) ensure the hygiene and organization within the home;
c) ensure routine medical visits or emergency;
d) Ensure that children M., Y. and IR attending children’s structures;
e) (…) seek gainful employment in order to guarantee its financial autonomy. It should present to the entities in charge of the support of this measure evidence about it.
3. The father will have to ensure that the mother meets the above commitments.
4. The father will continue to contribute financially to pay the fee structures for children and primary needs of children.
5. (…) the parents agree to cooperate and collaborate with social workers, accepting their guidelines, recommendations, suggestions and proposals aimed at maintaining living conditions, comfort, and well – being of Defense interests of minors. ”
10. On an unspecified date, the Agreement was approved by the court.
11. On 22 May 2007, a social worker visited the family and found that the apartment where she lived was filthy and that the supply of running water and electricity was cut off for two months due to non-payment of bills .
12. On 31 May 2007 the CPCJ received a new alert because of truancy of I. who was related to the fact that it had to look after her brothers and younger sisters. That same day she hired a promotion procedure and protection of the rights of children and youth at risk ( “the protection procedure”) in respect of children S., E., I., M., Y. and IR
2. The proceedings before the Family Court of Sintra
13. On 26 September 2007 the CPCJ sent the file to the prosecutor’s office at the Family Court of Sintra because of lack of cooperation from the applicant in the procedure of protection framework in place. The prosecutor requested the opening of a procedure for the protection of children E., I., M., Y. and IR on the grounds that the applicant does not have adequate material conditions and that she neglected the children. From that moment, the family was followed by social services team with court (Equipa de crianças e jovens do Instituto da Segurança Social cupboard ao Tribunal) (the “ECJ”) of Sintra.
14. The applicant and her husband were heard, as well as older children and social workers who had accompanied the family. The family home visits also took place.
15. By order of 21 December 2007, the Family Court decided the implementation of a support measure for parents against children E., I., M., Y. and IR (medida de apoio junto dos pais). This measure was extended several times.
16. On 24 September 2008, during a visit to the family home, social services saw that the living conditions were still precarious.
17. A social worker was sent to the applicant to teach him to manage his home, to ensure hygiene and organization of home and care for her children.
18. On 25 June 2009 the court held a hearing pursuant to section 112 of the LPCJP. During this hearing, after taking into account the recommendations of social workers in charge of accompanying the family, the following clauses were added to the protection agreement:
“1. [Parents should] include the IR minor in a facility for children in the next school year.
2. The father will begin paid work and regularize the situation with social security.
3. The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation.
4. The spouses must prove that they actually care for their regularization in the country.
5. Parents must provide the documents required for the study of a potential financial support.
6. Parents must present someone in their family network and / or social may constitute effective support for the family; that person must then appear before the team and / or the court to be coresponsabilisée. ”
Subsequently, CPCJ asked expanding the protection procedure for children L., and A. MS
19. On 9 September 2009, social services carried out a visit to the home of the applicant.
20. On 10 September 2009, E., who was 13 years old and who was pregnant, was received in a temporary reception center to assist women. October 24, 2009, she gave birth to a child who died December 15, 2009.
21. As to S., who was not living with the family for some time, she returned to the family home in October 2009. Aged 16, she gave birth to a daughter December 31, 2009.
22. In December 2009, the ECJ in charge of the case gave a progress report to the court. It stated that the applicant and his spouse had not complied with the commitments made under the protection agreement and include:
– IR that the child was still not enrolled in an institution for children;
– That the father had not rectified the situation with social security;
– That the mother had not proceeded with the operation of sterilization by tubal ligation she had taken any family planning because it had just given birth to another child, a year after giving birth to Twins ;
– That his last pregnancy had not been a medical monitoring;
– The parents were still unlawfully in the country;
– They did not submit their individual family or social network to help them care for children.
23. On 5 February 2010, the ECJ carried out a visit to the family home. She then gave a report to the court with the following observations:
– Vaccinations of Mr L. and MS were outdated;
– The father had reported receiving 366 euros (EUR) of monthly income;
– The applicant had no income;
– The family received 393 EUR per month family allowance;
– The irregular situation of certain members of the family was an obstacle to obtaining social allowances;
– The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
24. By order of 3 March 2010, the Family Court decided the expansion of the protection procedure for children L., and A. MS (about R., enlargement was pronounced by order of 5 January 2012).
25. In June 2010, a social worker was sent to the family to help in the care of the home. For six weeks, she went three to four times a week at the applicant’s home to teach her to organize her home. It also helped him to move to another apartment.
26. On 23 August 2010, the ECJ introduced a report that:
– The father still had not rectified the situation with social services;
– The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation;
– Parents had still not presented with the documents necessary for the study of their financial situation;
– No person had shown available to provide support to the education of children;
– E. resumed his studies and was passed to the next level, but she continued to help her mother support the family remaining;
– I. succeeded his school year;
– Mr. Y. and did not attend school regularly;
– IR and A. were not attending the nursery and stayed home.
27. The court scheduled a hearing on 23 September 2010, but the parents are not comparurent.
28. A new hearing was scheduled for 26 October 2010, at which only S. appeared. During the hearing, it stated that the family situation has improved.
29. In December 2010, the ECJ gave a new report to the court, noting in particular:
– That E. had stopped going to school;
– That I still had not been entered in the register of civil status and does so enjoyed no social grant;
– That Y. and IR were often dirty and they ended up showering in kindergarten;
– There was no dialogue between the family and school;
– The twins were placed with nurses, they obviously lacked health care and they were not properly dressed compared to the seasons;
– Vaccinations of A. were outdated.
30. The ECJ gave a new report on 24 June 2011. This document stated that:
– The family had moved to another apartment whose conditions had been assessed, the applicant did not open the door of his home social workers;
– E. went to school, but continued to look after her brothers and sisters at home;
– I was still not registered in the register of civil status and does not have an identity document;
– The children’s father continued to be absent.
31. At an unspecified date, the prosecution presented its written submissions (alegações escritas) requiring the application of a measure of autonomy support (medida de apoio para a autonomia de vida) for a period of eighteen months against E., docking measure long-term institution (medida de acolhimento institucional duração longa) in respect of I., and Mr. Y ., and an investment of IR measurement, L., S., A. and R. at a person selected for adoption or in an institution for adoption (medida de confiança has selecionada pessoa para a adoção or has Instituição com vista futura adoção) on the basis of Article 35 § 1 d), f) and g) of the LPCJP.
32. On 26 January 2012 the court held a hearing at which neither the applicant nor her husband comparurent. During this, the ECJ stated that the situation of the family was still critical since the agreement was still not respected. She noted in particular:
– The twins were no longer in the manger-payment of hospitality expenses;
– That the eldest child continued to look after her brothers and sisters;
– That I was still not registered in the register of civil status.
33. On 16 May 2012 the court held a hearing (debate judicial). During the latter, the applicant asked the court not to remove him custody of his children on the grounds that she had great affection for them, it does not mistreated and that they were all his life.
3. The judgment of the Family Court of Lisbon North – East – Sintra of May 25, 2012
34. On 25 May 2012, the Lisbon North Family Court of – East – Sintra (new name of the Family Court of Sintra) gave judgment. He decided the application:
– A support measure of autonomy for an eighteen-month period with respect to E.;
– Of the applicant support measure for a period of one year for I., under Article 39 of the LPCJP;
– A child placement measurement M., Y., IR, L., S., A. and R. in an institution for adoption under section 38-A of LPCJP.
Stating that the latter measure would remain in force until the adoption was imposed pursuant to Article 62-A of LPCJP the court declared the forfeiture of parental rights of the applicant and her husband vis- a-vis Mr. Y., IR, L., S., A. and R., and the prohibition of contact with the latter, pursuant to Article 1978-A of the civil code.
To base its decision, the court took into account the reports of the CPCJ and the ECJ. The reasons for the decision read as follows:
“(…) It appears from the facts considered proven that the father is completely absent and the mother is unable to exercise his mother function as evidenced lack of sanitation, food, health care and supervision, the use of inappropriate clothing to the seasons, neglect to include some of the children in a residential institution for children, lack of school support for these and the lack of monitoring of adequate family planning.
In particular, it should be noted that the mother did not register her daughter I. in the register of civil status. This has the consequence that [the child] has no legal existence and can not benefit from social grants (…).
Regarding the lack of hygiene, it has been proven that children were dirty, [they were suffering from] a lack of personal hygiene and clothing, the kindergarten had allowed and Y. IR to shower in the facility, the comrades of I. refused to sit next to her because of its unpleasant odor and the children slept on mattresses soiled with urine (…).
Regarding the lack of hygiene of the apartment where the children lived, it appeared from various visits to the home he was dirty, the children were all sleeping in the same room, the remaining room was used to cram clothing and other products, and sometimes water and electricity were cut (…).
As for the lack of health care for children, we must first address the lack of medical monitoring of pregnancy, and lack of necessary medical consultations and vaccinations required (…).
Regarding the lack of supervision, it appears that the mother leaves bare son outgoing electrical sockets, windows are accessible to children, that pregnancies S. and E. occurred when they were 16 and 13 years, that I, who is 10, left alone with other children to care for them in the apartment, the door is locked (…).
The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).
The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
The applicant persisted in its refusal to sterilization by tubal ligation (…).
Finally, as to the lack of adequate family planning, it is important to note that, contrary to the commitment made on 25 June 2009 under the protection agreement, the mother has not submitted sterilization by tubal ligation and that since the original agreement to date, four children were born (…).
Certainly the mother asked during the hearing that the children not be removed because she did not mistreated, she had tenderness for them and they were all his life, reflecting a certain affection for them.
However, the record contains no indication that would suggest she or the children’s father are able to provide a satisfactory response in terms of availability, commitment and collaboration to accomplish the relative function.
In addition, at least since the year 2007, the lives of children is more assured with the help of third parties (food bank, clothing donated by private individuals and institutions) than parents who do not seriously seek ways subsistence for themselves and their children.
Because of their irregular situation, minor parents do not even benefit from the social welfare benefit.
35. On 8 June 2012, the children’s placement decision was implemented on Y, R, L, MS, A and R, then respectively aged 6 years, 5 years, 3 years, 3 years, 2 years and seven months. The measure was not implemented with respect to Mr. because it was not at the family home at the time of child removal.
36. On 11 June 2012, the applicant and her husband appealed against the judgment before the Court of Appeal of Lisbon. Invoking the best interests of children, they asked that the execution of the judgment was suspended until the end of the procedure. They then alleged:
– That this separation might jeopardize the well-being of children;
– I. their daughter had meanwhile been registered at the civil status;
– They had not considered the submissions that had been made by the prosecutor and that they had therefore been able to respond;
– They were not represented by a lawyer before the Family Court;
– They had been informed of the date of the court hearing after having contacted the Registry by telephone;
– There were no reasons other than their state of economic deprivation to justify the application of the protective measures they considered to be the most serious in terms of their children;
– The measure of placement in an institution for the adoption on children M., Y., IR, L., S., A. and R. was disproportionate to what was alleged against them and due to, according to them, the absence of abuse or violence against them and the existence of strong emotional ties between the applicant and children;
– That the assessments of the family situation were contradictory, the ground that a measure of support to the applicant had been applied in respect of two older while the most severe protection measure had been applied last seven;
– That the applicant was forced to commit to undergo sterilization operation by tubal ligation and the fact of not having taken this commitment had been held against him to justify the protective measures applied against children.
37. By an application dated 19 June 2012 the applicant requested the court information on the situation of children. She also informed the court that she had started a job and she had registered her daughter I. in the register of civil status of Sintra.
38. The action brought by the applicant and spouse was not welcomed by the Family Court, which held that it was brought outside the time limit. The applicant challenged the decision of the court before the Court of Appeal of Lisbon and in the Constitutional Court. On 10 May 2013, it upheld his appeal, stating that the appeal had been brought within the time limit.
39. On 1 July 2013, the applicant requested the court to suspend enforcement of the judgment in order to avoid breaking the family bond between her and the children on the one hand, and between them, on the other.
40. On 11 October 2013, she asked the Court of Appeal of Lisbon to apply provisional measures in order to have access to her children.
4. The judgments of the Court of Appeal of Lisbon
41. At an unspecified date, the Court of Appeal of Lisbon, sitting as a single judge, delivered a judgment confirming the judgment of the court in Lisbon Family Affairs Northeast – Sintra as well as the facts found by the trial.
As for sterilization, Lisbon Appeals Court held as follows in the part of the established facts:
“The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).
The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).
The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation.
We accept the facts.
As regards the plea of failure to notify the prosecution’s submissions, the Court of Appeal considered that they had been sent to the address that the applicant had indicated to the court as part of the procedure, they were returned to the court with “unclaimed” (não atendeu) and that the applicant had not proved that they had not been brought to its attention.
The plea of lack of abuse against children and the existence of emotional ties, the Court of Appeal held as follows:
“(…) The absence of abuse may be the same fruit of the lack of vis-à-vis child care, and a” food affection “(carinho alimentar) minimal or no can also be neglect. The argumentation seems therefore misleading.
That he reflected in the facts that were considered as? We fear so.
The facts considered proven amply demonstrate that children have not benefited from their parents’ minimum conditions of dwelling [and] physical and psychological security, a lot of waste covering the soil, water and electricity is cut for two months due to default. In addition, vaccinations [children] are outdated. The mother leaves the house and lets his older daughters take care of [their] younger brothers, the latter thus being prevented from going to school. The mother has never taken steps to register in the register of civil status daughter I. It is separated from the children’s father. This is sufficient to demonstrate the moral neglect. Added to this is the fact that [the mother] does not have and does not demonstrate to have the resources to give children a dignified life, which is enough to operate [the machine] court.
(…) Lack of parental involvement to ensure material comfort to children is in itself great violence that justifies the decision at first instance. Furthermore, it can not invoke the principle of primacy of the natural family.
42. On 26 December 2013, the applicant challenged that decision before the panel of three judges (conferência) the Court of Appeal of Lisbon. March 27, 2014, it confirmed word for word, by the process of copying and pasting, the judgment had been rendered.
43. On 21 April 2014 the applicant appealed on points of law to the Supreme Court. It alleged in particular:
– She had not been aware of the submissions made by the prosecution;
– That the prosecution had requested the application of a placement order in institutions of her children and Mr. Y., that the court had meanwhile ordered the institutionalization of these for their adoption and that he had thus violated the adversarial principle;
– That the Court of Appeal had failed to rule over the developments, namely in particular, she said, she worked since 12 June 2012 and that it had conducted the registration of her daughter I. the register of civil status;
– She had been forced to commit to undergo sterilization by tubal ligation as part of the agreement with the social services, and that it violated his fundamental rights and breached Article 55 § 2 of the LPCJP;
– That the fact of not keeping its commitment had been considered by the court as an aggravating circumstance and that had motivated the placement of children for adoption;
– That the appeal court had not responded to its request for access to his children;
– The act about which it was not proportionate to what was criticized and had been executed force with police intervention, while his appeal was still pending.
The applicant argued further that the interpretation that was made of Articles 35 § 1 g) and 55 § 2 of the LPCJP did not comply with the Constitution and that the non-mandatory representation by a lawyer statement, according it in section 103 of the LPCJP went against the right to a fair trial.
44. By order of 22 June 2014, Lisbon Appeals Court admitted the appeal, without giving it a suspensive effect.
45. Meanwhile, on 20 February 2014, the applicant had submitted an application to the Higher Judicial Council, in which it complained of a lack of response to all requests for access to her children and an inability to visit thereof.
5. The judgment of the Supreme Court of May 28, 2015
46. On 28 May 2015 the Supreme Court delivered a judgment in which it dismissed the applicant’s appeal on the basis of the facts established at trial and confirmed by the Court of Appeal of Lisbon. As regards the plea of failure to notify the prosecutor’s submissions in the proceedings before the Family Court, it held:
– That the applicant had not proved not to have actually received the letter from the court containing the requisitions;
– It had presented February 28, 2012 a request to inspect the file of the proceedings that the court had granted the application and that, consequently, the applicant was well aware of requisitions by that route;
– The date of the hearing notification letter was sent to the applicant’s address was on file and had been returned marked “unclaimed”;
– That the record that a court clerk had communicated by telephone the date of the hearing to the applicant and that it had then requested its postponement, which was refused.
The Supreme Court held further that the Appeal Court had not mentioned in its judgment of the commitment by the applicant to undergo a sterilization operation, it was not based on the -ci and it was therefore not appropriate to refer to it and that the new elements mentioned by the applicant in the court of appeal had been taken into consideration by that court in its judgment. As for sterilization, the Supreme Court held as follows in the part of established facts:
“The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).
The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
47. As to the application of the institutionalization of children in placement measure for adoption, the Supreme Court observed that it could not rule on the compatibility of the measure with the law and not on whether or appropriateness thereof. It found that the facts had been established were considered sufficient and that therefore the legal provisions at issue, namely Article 1978 of the Civil Code and Article 34 of the LPCJP, were not violated.
As regards the complaint relating to a lack of the appeal court response to requests for access to his children made by the applicant, the Supreme Court held that:
“(…) The regime demanded proves visits and found inconsistent with the contested decision and in conflict with it, [that decision] providing institutional care for adoption, with disqualification parental authority, [that disqualification is] also in line with the provisions of Article 1978-A of the civil code (…) ”
“Therefore, in view of the established material reality, there is a particularly dangerous situation when the biological family is unstructured, that the father is absent from the lives of children and the mother demonstrated a great emotional instability, unstable employment and obvious negligence in relation to care due to minor children on hygiene, health, food, housing and education. Accordingly, the decision of the courts in the light of Article 1978 § 1 of the Civil Code and Article 35 § 1 g) LPCJP, to opt for the institutionalization of measures to adopt and , consequently, for the loss of parental authority over minor children, under Article 1978-A of the civil code, is not illegal. ”
48. On 16 June 2015 the applicant lodged a complaint before the panel of three judges of the Supreme Court. She requested a review ( reforma ) of the judgment, citing several grounds for revocation and accusing the Supreme Court for not having ruled on the question of the lack of notification of the prosecutor’s submissions and the date of hearing before the family court.
49. In a judgment of 9 July 2015 the panel of three judges of the Supreme Court dismissed the applicant’s appeal on the grounds that the notification of the date of the hearing had been made to the applicant’s address that appeared in the record, and that the applicant had, in fact, access to submissions and evidence which appeared to support them since it had consulted the case file.
50. The applicant challenged the judgment in the context of an appeal for annulment by which it contested consulting the case file. The Supreme Court rejected the claims by its judgment of 17 September 2015.
6. The proceedings before the Constitutional Court
51. Subsequently, on 5 October 2015 the applicant lodged an appeal with the Constitutional Court, arguing the unconstitutionality of several provisions of the LPCJP and Article 1978 of the Civil Code. She complained in particular:
– The interpretation by the courts of Articles 35 § 1 g) and 38-A of LPCJP, who would have considered that the care order for the adoption could be applied even if the parent had not read the prosecution’s submissions requesting such action and that the notification could be presumed;
– The interpretation by the courts of Articles 35 § 1 d) and g), 45 and 55 § 2 of the LPCJP that would have felt that the non-compliance with the commitment by the applicant to undergo sterilization could be a aggravating circumstance and motivate the application of institutionalization measure for adoption;
– The non-mandatory representation by a lawyer during the proceedings before the courts of first instance, which was laid down by Article 103 of the LPCJP.
52. According to the latest information received, which date back to the 1 st December 2015, the proceedings before the Constitutional Court is still pending.
B. On the intervention of the Court under Article 39 of the Rules
53. Meanwhile, by a fax of 19 November 2014, the applicant had, on the basis of Article 39 of the Regulation, referred to the Court a request to obtain visiting rights to her children who had been placed in care for their adoption.
54. On 17 February 2015, the Court invited the Portuguese Government, under that provision, to adopt interim measures to allow access by the applicant to his children and the restoration of contacts between them for the duration of the proceedings before it.
55. On 5 March 2015, the Family Court had authorized the applicant to resume contact with his children.
56. Since 15 March 2015, the applicant makes weekly visits to his children in the three institutions located in Sintra, Cascais and Alverca, where they have been placed.
II. THE MATERIALS AND THE INTERNATIONAL LAW RELEVANT
A. The concluding observations of the UN Child Rights Committee concerning the third and fourth periodic reports of Portugal
57. Pursuant to Article 44 of the Convention on the Rights of the Child, the UN Child Rights Committee considered the third and fourth periodic reports of Portugal, submitted in one document (CRC / C / PRT / 3-4) at its 1860 th and 1861 th meetings (see CRC / C / SR.1860 and 1861), held on 22 January 2014, and adopted at its 1875 th meeting (CRC / C / SR .1875), held on 31 January 2014, its concluding observations on those reports, the relevant parties in this case are as follows:
“39. While welcoming the existence of a wide range of social assistance programs, including that of emergency social assistance program, the Committee is concerned that many families, especially those found in poverty, do not receive appropriate assistance to fulfill their responsibilities as parents raising children, especially in terms of financial, educational early childhood accessible and youth protection children. The Committee is particularly concerned about the situation of children in families affected by the current economic crisis, who need social measures of positive discrimination, especially single-parent families, families with disabled children and families living in persistent poverty.
40. The Committee recommends that the State party strengthen its efforts to provide appropriate assistance to parents and legal guardians to enable them to fulfill their responsibilities of parents raising children, especially when they are in situations of poverty. It also recommends that the State party ensure that no group of children lives below the poverty line. The Committee further recommends that the State party strengthen the system of family benefits and family allowances as well as other services such as counseling and family counseling, as well as child care and early childhood education, to provide support to the families of two or more children, families with disabled children and families living in persistent poverty, according to the guidance document of the European Commission concerning custody and childrearing.
41. The Committee welcomes the adoption of the law on the protection of children and youth at risk, the steps taken to reunite families and efforts to promote the reduction of institutionalization, in particular by increasing the number of children living in group homes. However, the Committee expresses concern:
a) small number of reception and placement of children in families of families, and facing the widespread use yet to institutionalization, especially the younger children;
42. The Committee recommends that the State party to implement the following measures – after taking into account the Guidelines for the Alternative Care of Children annexed to resolution 64/142 of 18 December 2009 of the Assembly UN General:
a) Increase support to biological families to avoid investments in alternative structures; strengthen the provisions relating to the protection within the family, such as the extended family, placement in family systems and investment institutions; take all necessary measures to ensure that alternative care for young children, especially children under 3 years, is part of a family setting;
57. The Committee welcomes the decision of the State party to increase allowances and family benefits for vulnerable households with children, that is to say, single-parent families, families with two children or more, families with disabled children and families living in persistent poverty; it welcomes the expansion of the meal program in schools and the implementation of emergency social program in 2011 in order to minimize the effects of the financial crisis on vulnerable households. The Committee is concerned about the high level of poverty among children and the implementation of austerity measures that have adverse effects on families, which greatly increases the risk of exposing children to poverty and affect their enjoyment of many rights under the Convention, including the rights to health, education and social protection.
58. The Committee urges the State party to intensify efforts to address both the immediate and the long term, the high level of child poverty, including through public policy and a national plan the fight against child poverty. These policies and this plan should consist of the establishment of a coherent framework consisting of priority measures to fight against the exclusion of children with specific and measurable objectives with clear indicators and deadlines, and enjoying a sufficient economic and financial support.
B. Domestic law
1. The Civil Code
58. The relevant provisions in the case of the Civil Code in force at the relevant time, read as follows:
Placement for adoption
“1. For the purposes of an adoption, the court may place the minor in a couple, in one person or in an institution where the affective bonds particular to filiation do not exist or are seriously compromised for the following reasons:
d) when the parents, by act or omission, or because of an obvious disability due to mental illness put at grave risk the safety, health, training, education or development of the minor;
2. As part of the review of the situations listed in the preceding paragraph, the court must consider first the rights and interests of the minor.
5. The judicial placement of a minor can be requested by the public prosecutor, the social security center in the minor area of residence, the person to whom the child was entrusted administratively, the director of the public institution or direction the private host institution.
effect (…) the extent (…) investment in a person selected for adoption or in an institution for the adoption
“Once (…) that the measure promotion and protection with investment in a person selected for adoption or in an institution for the adoption has been ordered, the parents are deprived of their parental authority. ”
2. The law on the protection of children and young people at risk
59. At the material time, the LPCJP, governed by Law 147/99 of 1 st September 1999 in the version following the Law 31/2003 of 22 August 2003, established the regime and the promotion procedure for the rights and protection children and youth at risk ( processo de Promoção of direitos e proteção das crianças e jovens em perigo ).
60. According to this law, he meant by “child” a person under the age of 18 and “young” a person aged under 21 who requested the continuation of the intervention that was implemented before age 18 (Article 5 a)). Measures to promote rights and child protection were adopted by child protection committees or youth at risk or the courts (Article 5 e)). They aimed to remove children and young people to the danger they faced, to provide conditions for them to access their security, health care, education or training, promoting their development and allow them to physical and psychological rehabilitation in relation to any form of abuse or exploitation (Article 34).
61. The relevant parties in this case that Act read as follows:
“1. The intervention of commissions to protect children and young people ( comissões of proteção das crianças e jovens ) require the explicit agreement of the parents, legal guardian or person having custody of fact, the case.
“1. The promotion and protection measures are:
a) support for parents;
b) support to another family member;
c) placement in a person with a good reputation ( Idónea );
d) support for autonomy ( apoio para a vida autonomia );
e) foster care;
f) institutional care;
g) placement with a person selected for adoption or in an institution for adoption.
2. The promotion and protection measures are implemented, depending on their nature, open ( meio natural de vida ) or investment plan and may be decided provisionally.
Application jurisdiction measures to promote
“The application of measures to promote the rights and protection of the exclusive jurisdiction of protection commissions and courts; (…) ”
Placement in a person selected for adoption or in an institution for the adoption
“The measure of placement in a person selected for adoption or in an institution for the adoption, applicable when one of the situations specified in Article 1978 of the Civil Code is verified, consists of:
a) placement of the child or young person under the care of a candidate selected to the adoption by the competent social security body; or
b) placing the child or young person under the care of an institution for adoption. ”
Support for parents
“The parent support measure is to provide for the child or young psychoeducational and social support and, if necessary, financial assistance. ”
“1. When the measure provided for in Article 39 is applied (…), parents (…) can benefit from a training program aimed at improving parenting duties.
Support for autonomy
“1. The autonomy support measure is to bring directly to the young age of 15 years financial and psycho-social support and, in particular through training programs, to offer him terms that will enable to live alone and to gradually acquire a life of autonomy.
institution Home Concept
“1. The welcome in institutions is a measure of placing the child or youth in a structure with facilities or a permanent host, and a team of workers that can guarantee [ the child or young] care consistent with their needs and bring [to it] conditions that promote their education, well-being and full development.
Promotion and Protection Agreement
“1. The promotion and protection agreement must include:
a) identifying the member protection commission or the [social worker] responsible for managing the project;
b) the period for which it is established and where it needs to be revised;
c) the declarations of consent or no objection necessary.
2. Shall not be established clauses impose undue obligations or imposing limitations to the operation of family life beyond the necessary steps to effectively rule out the danger factors. ”
Promotion and Protection Agreement on measures in open
“1. The following shall in particular be included in the promotion and protection agreement establishing the measures to be implemented in an open environment:
a) feeding, hygiene and health care and comfort to provide the child or young by parents (…);
b) identification of the person responsible for the child or youth for the period during which it can not or should not be in the company or under the supervision of parents or the person to whom it was given;
c) school planning, vocational training, work and free time occupation;
d) the planning of health care, including medical consultations and child guidance, and the commitment to comply with the established guidelines and guidance;
e) financial assistance to be awarded, its terms and duration, as well as the entity responsible for its issue and the associated conditions.
placement measurement in a person selected for adoption
or in an institution for the adoption
“1. The measure of placement in a person selected for adoption or in an institution for the adoption lasts until the adoption is granted and is not subject to review.
2. (…) the natural family does not have the access.
Hearing of the holders of parental authority
“The parents, the legal representative and persons with de facto custody of the child or young person is compulsorily heard on the situation which led to the introduction and implementation, revision or termination, of the promotion and protection. ”
“The judicial process of promoting the rights and protection of children and young people in danger, now designated as judicial proceedings promotion and protection, is the voluntary jurisdiction. ”
“1. The parents, legal representative or the person having de facto custody of the child or young person may at any stage of the proceedings, to counsel or request the appointment of a lawyer for representation or that of the child or youth.
2. A lawyer must be appointed to represent the child or young when the interests [of it] and those of his parents are conflicting and, also, when the child or young person who seeks the sufficient maturity with the court.
4. At the hearing ( debate judicial ) recourse to a lawyer or the appointment of a lawyer is required to assist the child or youth. ”
With the entry into force, scheduled for 8 December 2015, of the law 142/2015 of 8 September 2015, paragraph 4 of Article 103 shall read as follows:
“4. At the hearing, recourse to a lawyer or the appointment of counsel to assist parents is mandatory in cases concerning the extent provided in paragraph g) of paragraph 1 of Article 35, and is mandatory in all cases to assist the child or youth. ”
“1. The child or youth, his parents, his legal representative or any person having de facto custody have the right to request the pleadings ( diligencias ) and produce evidence.
2. Written comments may be submitted during the hearing and the adversarial guaranteed.
3. The contradiction regarding the facts and the applicable measurement is always guaranteed in all phases of the proceedings, including during the conciliation aims to reach an agreement, and as part of the hearing where as provided in paragraph g) of paragraph 1 of Article 35 is applicable. ”
Phases of the procedure
“1. The legal process of promotion and protection includes the instruction phase, hearing, decision and execution of the measure.
“After hearing the public prosecutor, the court declares the instruction and close:
c) it clearly appears unlikely to reach a conciliation, he ordered the continuation of the procedure for a hearing and proceed to notifications pursuant to Article 114 § 1. ”
negotiated Decision ( Decisão negociada )
“The judge summons to the hearing ( conferência ), for the purpose of obtaining a promotion and protection agreement, the Public Prosecutor, the parents, the legal representative or the person who has de facto custody [of the minor ], the child or young person aged over 12 years, and persons and representatives of entities that it believes the presence and consent to the relevant agreement. ”
Hearing ( debate judicial)
“1. If it has not been possible to achieve promotion and protection agreement (…), the judge makes a notification to the Public Prosecutor, the parents, the legal representative or the person who guard [the minor], the child or young person aged over 12 years so that interested parties present in writing, within ten days their comments if they wish and (…) their means evidence.
2. The public prosecutor shall submit written comments and evidence if it considers the measure to be applied is that set out in paragraph g) of paragraph 1 of Article 35.
3. After receiving comments and evidence, the judge will set a hearing date and ordered that notification is made to appear to people.
4. With the notification of the hearing date is made available to parents, legal guardian or person having custody of [the minor] the prosecution submissions and knowledge of it and the memories the evidence requested. ”
3. The Code of Civil Procedure
62. Article 1409 of the Civil Procedure Code, in force at the time, had the relevant parts in this case:
4. In voluntary jurisdiction procedures, representation by a lawyer is not mandatory in the appeal phase. ”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
63. Relying on Articles 6 § 1, 8 and 13 of the Convention, the applicant complained of an infringement of her right to respect for family life due to the application of a placement order for the adoption to respect of his seven younger children and the ban for it to have access to them from the court judgment to the Lisbon family Affairs Northeast – Sintra on 25 May 2012. on that point, it states that introduced, unsuccessfully, various applications and appeals. It also complains that the courts based their decisions on the fact that it had not met its commitments to adequate family planning.
64. The Government rejected the applicant’s argument.
65. Mistress of the legal characterization of the facts of the case, the Court considers it appropriate to consider the complaints raised by the applicant in terms of the single article 8 of the Convention, which requires that the decision-making process leading to measures of interference is fair and respects, as it should be, the interests protected by that provision ( Kutzner v. Germany , n o 46544/99 , § 56, ECHR 2002 – I, . Kříž v Czech Republic . (Dec.) n o 26634/03 , 29 November 2005, and Pontes v. Portugal , n o 19554/09 , § 67, 10 April 2012).
Article 8 of the Convention provides in relevant part in this case:
“1. Everyone has the right to respect for his life (…) family (…).
2. There can be no interference by a public authority with the exercise of this right except such as this interference is provided for by law and is a measure in a democratic society, is necessary (.. .) for the protection of health or morals, or the protection of the rights and freedoms of others. ”
1. Arguments of the parties
66. The Government raised a plea of premature nature of the application on the ground that the applicant submitted after the judgment of the Supreme Court of 28 May 2015, an appeal to the Constitutional Court which is still pending. He believes that if the Constitutional Court granted the applicant’s request on the various normative unconstitutionality allegations raised by it in its appeal in memory, the case will be sent back to trial and that therefore the Supreme Court is not yet final.
67. The applicant argues that the appeal of unconstitutionality before the Constitutional Court can not be seen as an effective remedy to exercise under Article 35 § 1 of the Convention. She claims to have submitted his appeal to the Constitutional Court to prevent the investment decision of their children for adoption becomes final. In addition, indicating that there is the Constitutional Court no recourse against violations of fundamental rights equivalent appeal by amparo , it argues that this court can not rule on the character consistent with the Constitution of a standard or its interpretation by a lower court and can not therefore rule on the merits of a case has already been decided by the Supreme Court. It adds that even if the Constitutional Court gives a favorable response to its appeal, this court is not bound to order a referral of the case for a new decision on the merits. Finally, the applicant states that the withdrawal of his children was implemented June 8, 2012, that the violation denounced by it is already effective and that, therefore, the request is not premature.
2. Findings of the Court
68. The Court recalls that Article 35 § 1 of the Convention, it may not matter after the exhaustion of domestic remedies. Every applicant must have given the domestic courts the opportunity that this provision was intended to be afforded to Contracting States in principle: prevent or redress the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Moreira Barbosa v. Portugal (dec.), n o 65681/01 , ECHR 2004-V, and Cardot v. France , 19 March 1991, § 36, series A n o 200). This rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that the domestic system provides an effective remedy in respect of the alleged violation (see, for example, Selmouni v. France [GC], n o 25803/94 , § 74, ECHR 1999-V).
69. The Court further recalls that Article 35 of the Convention provides that only the exhaustion of remedies both related to the breaches alleged available and sufficient. These remedies should exist in a sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many others, Vernillo v. France , 20 February 1991 , § 27, series A n o 198, Dalia v. France , 19 February 1998, § 38, Reports of judgments and decisions 1998 – I, and . Vučković and others v Serbia (preliminary objection) [GC], no bones 17153 / 11 and 29, § 71, 25 my rs 2014).
70. The Court must apply the rule of exhaustion of domestic remedies, taking due account of the context: the safeguard of human rights that the Contracting Parties have agreed to set. It has recognized that Article 35 § 1 of the Convention must be applied with flexibility and without excessive formalism. It has further recognized that the rule does not accommodate an automatic application and is not an absolute one; to monitor compliance, it is essential to have regard to the circumstances of the case. This means that the Court must take realistic account not only of the remedies provided in theory in the legal system of the Contracting Party concerned but also of the general context in which they operate, as well as the applicant’s personal situation ( Akdivar and others v. Turkey, 16 September 1996, § 69, Reports 1996 – IV).
71. The answer to the question of whether the individual complaint to the constitutional court is required under Article 35 § 1 of the Convention depends largely on the peculiarities of the legal system of the respondent State and the extent of skills of its constitutional jurisdiction. Thus, in a state where these skills are limited to a review of the constitutionality and the level of compatibility of legal norms, an appeal to the Constitutional Court is to exercise that where the applicant challenges a law or regulation as in itself contrary to the Convention ( Grišankova and Grišankovs v. Latvia (dec), n. o 36117/02 , ECHR 2003 – II). However, this remedy is not effective when the applicant complains that an error in the interpretation or application of a law or regulation which in itself is not unconstitutional ( Szott Medyńska-c . Poland (dec.), n o 47414/99 , 9 October 2003, and Smirnov v. Russia (dec.), n o 14085/04 , ECHR, 6 July 2006).
72. Turning to the present case, the Court first notes that it is undisputed that the constitutional complaint in Portugal shall relate to one “normative” provision and not a judicial decision ( Colaço Mestre and SIC – Sociedade Independente de Comunicação SA c. Portugal (dec.), No bone 11182/03 and 11319/03 , 18 October 2005).
73. It then observes that the applicant raised before the Constitutional Court several pleas of unconstitutionality of the interpretation given by the courts of certain provisions of LPCJP (paragraph 51 above) to denounce the disproportionate nature in his eyes the institutionalization of best of its children for adoption. Since this part of the constitutional complaint concerns the judicial decision itself and not on a normative unconstitutionality, it appears doomed.
74. As regards the plea alleging an illegal character in the Constitution of the absence of legal representation obligation, before the courts of first instance, parents of a child subject to a protection proceedings, the Court considers that it can not speculate on the admissibility and the potential outcome of this part of the appeal. Moreover, even assuming that the applicant obtains a favorable decision and that the case be sent back to trial, he must still submit his complaints of potential harm resulting from the contested measure, within the framework a civil action against the State for the purpose of obtaining compensation. Moreover, the Court considers that it can not require the applicant to wait longer that the Constitutional Court’s decision, since the protective measure was executed on 8 June 2012, there is more three years already (see, mutatis mutandis , Guillemin v. France , 21 February 1997, § 50, Series 1997 – I).
75. In view of the foregoing, the Court considers it appropriate to reject the Government’s objection.
76. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and it also faces any other ground of inadmissibility, the Court declares it admissible.
1. Arguments of the parties
a) The applicant
77. The applicant alleges that the measure of placement for adoption, applied in respect of seven of his children and performed with regard to six of them, constituted a disproportionate interference with his right to respect for family life. Contesting the facts considered proven by the domestic courts, she argues that her children were exposed to any physical or psychological violence and that their placement was based solely on his social precarious situations. She complains about the application of different measures vis-à-vis her children and says not understand why the support measure for parents has been applied in respect of her daughter I. whereas the road to adoption , harder in his eyes, was chosen for its youngest children.
78. Complaining that less drastic measures with regard to its youngest children were not considered, the applicant claims not to have received adequate social assistance from social services before the institutionalization of its children for adoption. It refers, as evidence, to the various reports on which the domestic courts have relied and believes they show that social services were deaf to her distress and she continued to struggle alone to provide for his family. She denies having ceased to work with social services, stating that it has received no visits from them the year before the application of the investment measure.
79. The applicant also complained of being pushed to agree to include in the agreement with the social services a clause under which it undertook to undergo sterilization operation while it believes such a move went against his culture and his Muslim religion. She says she accepted the inclusion of this clause because of her emotional state – in her brittle – at the material and to stop the relentless social services to which it was confronted. She is convinced that the withdrawal of his children was decided to punish her for not having been sterilized and have even given birth to four children. It states that it appears from the judgment of the Family Court in which it had stressed that it was ultimately not sterilized despite its commitment to undergo such an operation.
80. Next, the applicant criticizes the forfeiture of parental authority and the prohibition of contact with and between his children in three different foster homes under the judgment of the Family Court. Indicating that the decision was not yet final and that the courts had recognized the absence of physical violence and the existence of emotional ties with her children, she argues that these restrictions have made it for additional punishment and that the ‘were removed from her children. In the alternative, she complained of not having received any response from the authorities about the various requests made by it to have access to her children. She indicated that her youngest was six months old when he was removed and the immediate implementation of the measure and the absolute prohibition of contact were thus prevented the establishment of any link with it. She complains of not being able to see her children since the indication of provisional measures by the Court, ordered under Rule 39. It adds, in the alternative, as reports show that children responded enthusiastically to restoring contact with her.
81. At the procedural level, the applicant complains of not being able to participate effectively in the proceedings.
First, it states that it was represented by counsel until May 25, 2012, the judgment of the Family Court, and it was not before, and that in despite it believes the complexity of the procedure and the severity of its issues. It believes that it has therefore not been able to defend its interests, since it would have been possible to present its case, and the court did not allow effective participation in since the procedure would not have told her what was happening. On this point, she alleges, for example she could not attend the hearing various witnesses during the judicial debate on 16 May 2012.
Then she complained that the prosecution’s charges were not brought to its notice, which would not have allowed him to understand the stakes in the proceedings and, in particular, the investment demand from children for adoption envisaged in the court order of January 26, 2012. in addition, it alleges that the family court to have applied the placement order against her seven younger children, namely M. Y, R, L., S., A. and R. whereas this measure had, she said, was requested by the prosecution vis-à-vis the last five.
Finally, the appellant criticizes the Family Court having relied solely on the reports of social services and to have ordered no expertise enabling it to assess its ability to exercise their parenting and assess the maturity and affective and emotional balance of his children. It further alleges that the evidence it submitted in support of its appeal before the court of appeal were not considered, that court, as the Supreme Court, being limited his statements to confirm the judgment of the family court without a critical examination of the facts. She claims to have suffered the procedure without ever having been able to bring any evidence in his defense.
82. Furthermore, the applicant requests the Court to order the continued visits to his children and between them.
b) The Government
83. The Government recognizes that the placement of children of the applicant institution for adoption was an interference with the right of the latter to respect for family life. It is, however, that the interference was justified having regard to the best interests of children on the grounds that they were in danger because of negligence on the applicant and her husband, and that the situation would have known no improvement despite the application of a measure of support to parents for several years.
84. As regards the necessity of the measure, the Government maintained that the father was absent from the home and that the applicant had shown great neglect of her children. He said that the family had followed since 2005 by social services and a more sustained since the agreement with the applicant in 2007, which led to the application of a support measure against relatives children. He added that this has brought social services to perform close monitoring of the family including through meetings and visits at home and at school. It states that, from 2010, the applicant ceased to cooperate with social services and has made it impossible to apply the measure of current assistance. He says the child institutionalization was then considered as a solution for the younger children and that this measure was applied only after other measures failed. He says, to base its judgment, the Family Court took into account the competing interests at stake and that it relied on the testimony of Social Workers, the applicant and spouse and the eldest daughter of torque, and the different social relations. It specifies that these reports had helped raise the following: a lack of health and safety at the family home; lack of medical care for children; a truancy of children; food and clothing deficiencies; administrative negligence, for example the lack of registration of one of the daughters of the applicant in the register of civil status and the irregular situation of the applicant in the country.
The Government also states that the applicant had not designated a person of the family circle may constitute a support for the family.
85. As regards the sterilization operation, the Government maintained that the applicant had deliberately engaged in 2009 to do such an operation within the framework of the promotion and protection agreement. He added that the aim was only to allow monitoring of a family planning program by the applicant and not to force it to a specific contraceptive method. In addition, it states that the courts had not taken this into account in their decision and that it therefore had no influence in the procedure: in this regard, he said that the Family Court noted in its judgment the lack of monitoring of family planning and not a specific method of contraception.
86. The Government concluded that the measure was appropriate, proportionate, and therefore necessary in a democratic society, and therefore did not violate Article 8 § 2 of the Convention. He believes it also notes the national margin of appreciation, as the authorities are better placed to determine the solution to be applied in relation to a concrete situation and that, consequently, the Court can not revisit the facts were considered as internally.
87. As regards the impossibility for the applicant to have access to her children, the Government explains that this follows from the very measure of placement for adoption, pursuant to Article 1978-A the civil code and Article 62-A of LPCJ.
2. Findings of the Court
a) General principles
88. The Court recalls that, for a parent and child of each constitutes a fundamental element of family life ( Kutzner , cited above, § 58): domestic measures hindering such constitute interference with the right protected by the Article 8 of the Convention ( K. and T. v. Finland [GC], n o 25702/94 , § 151, ECHR 2001-VII). Such interference breaches the aforementioned Article 8 unless it is “prescribed by law”, pursues one or more legitimate aims under the second paragraph of that provision and was “necessary in a democratic society” for the ( Gnahoré c. France , n o 40031/98 , § 50, ECHR 2000 IX, and Pontes , cited above, § 74). The notion of “necessity” implies that the interference on a pressing social need and, in particular, proportionate to the legitimate aim ( Couillard Maugery v. France , n o 64796/01 , § 237, 1 st July 2004). In assessing the “necessity” of the measure “in a democratic society” and therefore should be analyzed in the light of the whole case, the reasons adduced in support of it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.
89. The fact that a child could be placed in a more beneficial environment for his education can not in itself justify the strength of removal from the care of their biological parents; such an interference with the right of parents, under Article 8 of the Convention to enjoy a family life with their child still has to be “necessary” due to other circumstances ( K. and T. , supra , § 173, and Kutzner , cited above, § 69). Moreover, Article 8 of the Convention imposes on the state of positive obligations inherent in effective “respect” for family life. Thus, where the existence of a family relationship is established, the State must in principle act to enable that tie to be developed and take measures to meet the parent and the child concerned ( Kutzner , cited above, § 61).
90. In consideration of the necessity of the interference, the Court will take into account that the design that has been the timeliness of intervention by public authorities in the care of a child varies from State to another depending on factors such as traditions relating to the role of the family and state intervention in family affairs, as well as the resources that can be devoted to measures public in this particular field. Still, the best interests of the child in each case takes decisive. We must also not lose sight of that national authorities benefit of direct contact with all concerned ( Olsson v. Sweden (n o 2) , 27 November 1992, § 90, Series A n o 250), often at the when investment measures are envisaged or immediately after their implementation. It follows from these considerations that the Court is not its task to replace the domestic authorities in the exercise of their regulatory responsibilities in matters of child care by the public authority and the rights of parents whose children were well placed, but to control the angle of the Convention the decisions they delivered in the exercise of their discretion ( Hokkanen v. Finland , 23 September 1994, § 55, series A n o 299 – A, Johansen v. Norway , 7 August 1996, § 64, Reports 1996 – III, and K. and T. , cited above, § 154).
91. The Court also recalls that although the border between the positive obligations and negative obligations of the State under Article 8 of the Convention does not lend itself to precise definition, the applicable principles are nonetheless similar. In particular, in both cases, regard must be had to the fair balance between the competing interests – those of the child, those of the parents and those of public order ( . Maumousseau and Washington v France , n o 39388 / 05 , § 62, ECHR 2007-XIII) – taking into account, however, that the child’s best interests must be the paramount consideration (see, to that effect, Gnahoré , cited above, § 59) which, according to its nature and seriousness, override those of the parents ( Sahin v. Germany [GC], n o 30943/96 , § 66, ECHR 2003 – VIII). In addition, a family breakup is a very serious interference; a measure leading to this situation should therefore be based on considerations inspired by the interests of the child and of a weight and a sufficient strength ( Scozzari and Giunta v. Italy [GC], no bones 39221/98 and 41963 / 98 , § 148, ECHR 2000-VIII). The remoteness of the family context child is an extreme measure to which one should be used as a last resort. For a measure of this type is justified, it must meet in order to protect the child faces an immediate danger ( Neulinger and Shuruk v. Switzerland [GC], n o 41615/07 , § 136, ECHR 2010).
92. It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with these positive obligations under Article 8 of the Convention and the Court whether, in application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, taking particular account of the best interests of the child (see, mutatis mutandis , Neulinger and Shuruk , § 141, ECHR 2010, and KAB v. Spain , n o 59819/08 , § 115, April 10, 2012,).
93. The Court reiterates that, if the authorities have considerable latitude to assess in particular the need to take charge of a child, it must nevertheless be satisfied that in the case in question, there were circumstances warranting the removal of the child. It is incumbent on the respondent State to establish that the authorities before putting such measures into effect, carefully assessed the impact that would have on the parents and the child measuring envisaged adoption and other solutions that child care ( K. and T. , supra, § 166, and Kutzner , cited above, § 67). The Court also exerts tighter control on additional restrictions, such as those made by the authorities of the parents visiting rights, and safeguards to ensure the effective protection of the rights of parents and children to respect for their family life . Such further limitations entail the danger that the family relations between the parents and a young child ( Gnahoré , § 54, and Sahin , cited above, § 65). On one hand, it is certain that guarantee children a development in a healthy environment responsibility of the child’s interests and that Article 8 of the Convention does not permit a parent to take actions detrimental to health and development of children ( Sahin , cited above, § 66). On the other hand, it is clear that it is as much in the child’s interest that the relationship between he and his family are kept, except in cases where it was particularly indignant: break link back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , § 59, and Pontes , cited above, § 85).
94. If Article 8 of the Convention contains no explicit procedural requirements, the decision process related to measures of interference must be fair and proper to respect the interests protected by that provision. It should therefore be determined, depending on the circumstances of each case including the seriousness of the action, if the parents have been involved in the decision process, as a whole, a fairly important role to give the required protection in their interests. If not, there is a failure to respect their family life and the interference resulting from the decision can not “necessary” under Article 8 ( W. v. United Kingdom , 8 July 1987 § 64, series A n o 121, and Assunção Chaves v. Portugal , n o 61226/08 , §§ 82-84, 31 January 2012).
b) Application of these principles in the present case
95. In the present case, the Court notes that the parties do not dispute that the contested measure investment – orders against seven of his children, M., Y., IR, L., MS, and A. R., and executed from the last six – the loss of parental authority and the prohibition of any visit, decided by the judgment of the family court of Lisbon Northeast – Sintra on 25 May 2012 constituted “interferences” in the exercise of the right of the applicant to respect for his family life. The Court sees no reason to conclude otherwise.
96. The Court further observes that the parties agree that the interference in question had a legal basis. It also notes that the above measures at issue were based on Article 35 § 1 g) of the LPCJP and Article 1978-A of the Civil Code, and were therefore “prescribed by law”.
97. It appears from the reasons given by the domestic courts that the decisions to which the applicant had the objective of safeguarding the interests of children. The interference in question therefore pursued a legitimate aim under Article 8 § 2 of the Convention: “the protection of rights and freedoms of others.” The question is therefore whether the measures were “necessary in a democratic society” to achieve the legitimate aim in the particular circumstances of the case; more specifically, it is whether the application made in this case the legislation struck a fair balance between the best interests of the child and other competing interests.
i. preliminary observations
98. As a preliminary point, the Court notes the concluding observations and recommendations presented by the Committee of the UN Rights of the Child adopted 31 January 2014 concerning the situation of families living in persistent poverty in Portugal (see comments and recommendations n os 39-42 and 57-58 times in paragraph 57 above).
99. Next, in the present case, it notes the following.
First, the family of the applicant was the subject of a first report of the CPCJ in 2005, since the applicant was unemployed and his spouse, the children’s father, was often away from home because his polygamy.
Subsequently, a rights promotion agreement and child protection between the applicant, spouse and CPCJ was established January 4, 2007 pursuant to section 55 of the LPCJP concerning E. (then aged 11 years), I. (then aged 5), M. (then aged 2), Y. (then aged 1 year) and IR (then aged three months). Under the agreement, the applicant was engaged, among others, to seek employment, to improve the living conditions in its housing and to ensure to allow his children to go to school and, where appropriate, from attending kindergartens or nurseries. Also according to the agreement, CPCJ was committed, for its part, to monitor and support the implementation of the Agreement through recommendations, suggestions and proposals (see paragraph 9 above).
The promotion procedure for the rights and protection of children at risk was officially opened on 26 September 2007, at the request of the CPCJ who was brought to the attention of the prosecutor at the court in Sintra family affairs lack of cooperation from applicant as part of the agreement, including the lack of adequate material conditions and neglect. A measure of support to parents against children was then applied on 21 December 2007 in accordance with Article 39 of the LPCJP. It resulted from the support provided to the applicant by a social worker of the ECJ in order to teach it to organize their home and care for her children (paragraphs 15-17 above – above ).
Following a hearing held on June 25 2009 in the presence of the applicant and her husband, additional clauses were added to the protection agreement by which, inter alia, the applicant undertook to rectify the situation in Portugal , to submit a dossier in order to obtain a financial allocation to designate a trusted person in the family or social circle and to undergo a sterilization operation by tubal ligation (see paragraph 18 above).
Finally, between 10 September 2009 and 24 June 2011, the applicant was the subject of several controls ECJ.
100. The Court further notes that the ECJ has sent five reports to the court, including opportunities early pregnancies of two older girls, always precarious and unhealthy housing conditions, a one-time truancy of some children, but also good grades with regard to E. I. and the lack of vaccinations update in respect of M., L., and A. MS, lack of hygiene observed in children as well as the non-compliance the commitment by the applicant to be sterilized.
101. The Court also observes that, in financial terms, the ECJ noted that the applicant was still out of work and she received 393 EUR family allowance, the children’s father had declared a monthly income of 366 EUR and that parents still had not submitted an application to obtain financial assistance.
102. It further notes that in its judgment of 25 May 2012, the Family Court ordered three types of measures: a support measure of autonomy with regard to E. (then aged 17) , a measure of support to the applicant concerning I. (then aged 11) and institutionalization measure to the adoption of Mr. (then 8 years old), Y. (then aged 7 years ), IR (then aged 6 years), and L. MS (then aged 4), A. (then 3 years old) and R. (then aged 7 months).
103. The purpose of the request therefore concerns the measure taken against the seven youngest children of the applicant, confirmed by the Court of Appeal of Lisbon and, ultimately, the Supreme Court of years his judgment of 17 September 2015, and executed from the last six of them (see paragraph 35 above).
ii. The institutionalization of measures of the seven youngest children of the applicant for adoption
α) on the precarious situation of the applicant
104. The Court notes that it was primarily criticized the applicant for not providing adequate material conditions for their children and for neglecting them.
105. The Court reiterates that it is not him substituted er its assessment for that of the competent national authorities on the measures that have been taken since they are in fact better placed to make such an assessment in particular because they are in direct contact with the context of the case and the parties involved ( Reigado Ramos v. Portugal , n o 73229/01 , § 53, 22 November 2005). However, in this case, it considers the outset that it was objectively clear that the situation of the applicant was particularly fragile since it had to bear a large family, in this case ten children, that it amounted to only addition owing to the absence of her husband.
106. Now it appears that the applicant survived with 393 EUR family allowance per month and it ensured the food and clothing for the family by using the food bank and donations from individuals or associations. Despite the obvious material deprivation found in the various home visits to the applicant, the domestic authorities did not try to fill these gaps through additional financial assistance to cover the basic needs of the family (eg in food, electricity and running water) and the hospitality of the younger children in family day care to allow the applicant to exercise a paid job. In reality, it appears that social services in charge of support for the family waiting on the part of the applicant, in addition to the regularization of its situation in the country, the formal presentation of a reasoned record exists needs yet they themselves identified and reported (see paragraphs 23 and 26 above – above). The Court believes that the authorities should take concrete steps to allow children to live with their mother, before placing and open a adoptability procedure. It also recalls that the role of social protection authorities is precisely that of helping those in difficulty, guiding them through the process and advise, among others, about the different types of available social benefits, opportunities to obtain social housing or other means to overcome their difficulties ( Saviny v. Ukraine , n o 39948/06 , § 57, 18 December 2008, and RMS v. Spain n o 28775/12 , § 86, 18 June 2013 ). In the case of vulnerable people, authorities must show special attention and must ensure their greater protection ( B. v. Romania (n o 2) , n o 1285 to 1203 , §§ 86 and 114, February 19 2013 Todorova v. Italy , n o 33932/06 , § 75, 13 January 2009, and Zhou v. Italy , n o 33773/11 , § 58, 21 January 2014).
107. While it is true that in some cases declared inadmissible by the Court, the placement of children was motivated by the unsatisfactory living conditions and material deprivation, it has never been the sole reason as the basis for the decisions of national courts: in addition there were other elements such as psychic conditions of the parents or emotional disability, educational and teaching (see, for example, Rampogna and Murgia v. Italy (dec), n. o 40753 / 98 , May 11, 1999, and MG and MTA v. Italy (dec.), n o 17421/02 , 28 June 2005).
108. In this case, it is clear that at no stage of the procedure were discussed situations of violence or abuse against children (see, a contrario , Dewinne v. Belgium (dec. ), n o 56024/00 , 10 March 2005, and Zakharova v. France (dec.), n o 57306/00 , 13 December 2005) and sexual abuse (see, a contrario , Covezzi and Morselli v. Italy , n o 52763/99 , § 104, 9 May 2003, Clemeno and others v. Italy , n o 19537/03 , § 50, 21 October 2008, and Errico v. Italy , n o 29768/05 , § 48, 24 February 2009 ). The courts have not found emotional neglect (see, conversely, Kutzner , cited above, § 68, and Barelli and Others v. Italy (dec.), N o 15104/04 , 27 April 2010) or a worrying state of health or mental imbalance parents (see, a contrario , Bertrand v. France (dec.), n o 57376/00 , 19 February 2002, and Couillard Maugery , § 261). Rather, it appears that attachment links between the applicant and her children were particularly strong, which the Family Court has also noted in its decision (paragraph 34 above). It does not follow the internal record as expertise of children, at least older, has been initiated.
β) on the commitment made by the applicant under the protection agreement, for sterilization
109. The Court recalls that the dignity and human freedom are the essence of the Convention ( Christine Goodwin v UK. [GC], n o 28957/95 , § 90, ECHR 2002 – VI). In the sphere of medical assistance, the tax treatment without the free, express and informed consent of an adult in full possession of his mental capacity does not comply with the right to physical integrity and, a fortiori , with the Convention ( Glass v UK. , n o 61827/00 , §§ 82 – 83, ECHR 200 – II, and Jehovah’s witnesses of Moscow v. Russia , n o 302/02 , § 135 10 June 2010).
110. The Court emphasizes that sterilization is a major attack on the ability of a person to procreate. As this intervention concerns an essential bodily functions of humans, it affects many aspects of a person’s integrity, including physical and mental well-being and emotional, spiritual and family. It can be practiced legitimately at the request of the person concerned, such as birth control or for therapeutic purposes where the existence of a medical necessity is established convincingly. However, the situation is different where such medical treatment has become an adult and sane patient without his consent. Such a design shall be considered incompatible with respect for the freedom and dignity of man, which is one of the fundamental principles of the Convention ( VC v. Slovakia , n o 18968/07 , §§ 106-107, ECHR 2011 (extracts), and NB v. Slovakia , n o 29518/10 , § 80, 12 June 2012).
111. In the present case, the Court observes that the lack of monitoring of adequate family planning has resulted in worsening the financial situation, already difficult for the applicant. However, it considers that the addition of a commitment to the sterilization interested in the protection agreement established with social services is particularly serious (paragraph 18 above – above). It believes that social services could advise the applicant less intrusive contraceptive methods to respond to the lack of monitoring of family planning they found. Moreover, even assuming that the applicant deliberately accepted this approach, as the Government submitted, the Court noted that the applicant finally refused to undergo the operation in question and that, contrary to what the government refusal has clearly been brought against it by both the family Court by the Court of appeal of Lisbon and the Supreme Court, which accepted the facts established by the first instance (paragraphs 34, 41 and 46 below -above). In addition, the Court wishes to point out as a matter of principle, that the use of a sterilization operation can never be a condition for continued parental rights. Consequently, the failure by the mother of his commitment to submit to such a transaction does not in any way be held against it, even in the case of a voluntary and informed commitment on his part.
iii. On the prohibition of any contact between the applicant and his seven younger children
112. If it is not the task of replacing the domestic authorities to regulate matters of custody and access, it is for the Court to review under the Convention the decisions that they have taken in the exercise of their discretion
113. In the present case, the Court found that the prohibition of any contact between the applicant and her children have been the subject of an investment institution for the adoption was pronounced by the judgment of 25 May 2012 the family court, pursuant to Article 1978-A of the civil code which provides for deprivation of parental authority in connection with any investment measure to adopt regardless concrete situations. It notes that this measure was executed June 8, 2012, when the forced placement of children in institutions, and it lasted until 5 March 2015, the date of the lifting of the ban after the decision by it pursuant to Article 39 of the Rules.
114. The Court reiterates its position that additional restrictions are justified under Article 8 of the Convention that when the family was particularly indignant vis-à-vis the child. Or, as it has already raised previously (see paragraph 108 below – above), this was not the case in the present case. Despite the lack of evidence of violence or abuse vis-à-vis her children, the applicant was deprived of any access, while they had between seven months and 10 years and that his appeal against the judgment of the family court was pending. The Court further observes that the six children were actually placed in three different institutions, making difficult to maintain fraternal ties. This measure has caused not only the family breakdown, but also siblings, and went against the best interests of children ( Pontes , cited above, § 98).
iv. On decision making
115. The Court observes that, to justify their decisions the domestic courts are essentially based on the reports of the CCPCJ and the ECJ that accompanied the applicant in previous years. It notes that no psychological evaluation by an independent expert was ordered to assess the maturity and educational and teaching skills of the applicant ( Saviny , cited above, § 58) and a psychological evaluation of children did not longer considered necessary as it appears that the eldest daughters of the applicant ensured a crucial educational role with their cadets, to constitute for them referees. It notes that the Court of Appeal of Lisbon has not given the information that the applicant has submitted in support of his application to show that she had looked for solutions to its problems after being removed his children (see paragraph 41 above). The Court also notes that, in the review of the case on 27 March 2014 the panel of three judges of the Court of Appeal of Lisbon confirmed word for word the previous decision of the single judge by the copy-process paste, which is not an actual review of the situation (see paragraph 42 above).
116. As to the alleged lack of notification of the prosecutor’s submissions as part of the protection process, the Court considers that, since it has no direct knowledge of the case file, it n is not able to decide whether the applicant received or not reporting them. However, it finds that the applicant was not represented by a lawyer in proceedings before the Family Court, which was also not compulsory at the relevant time (it has been since the entry into force of law 142/2015 of 8 September 2015 amending Article 103 of the LPCJP), except in the appeal. As she has said in the judgment Assunção Chaves (cited above, § 82), given the complexity and the issue of child protection proceedings in danger and extremely serious and delicate consequences thereof this both for the child and parents concerned, the Court considers that precautions and additional procedures have been taken to ensure not only of understanding by the applicant of the exact stake in the proceedings, but also effective participation in the latter. The Court notes that the applicant has participated only once in a hearing, namely before the Family Court (paragraph 33 above) for his hearing before that court.
117. In the alternative, the Court notes that, since it is represented by a lawyer – that is to say from the judgment of the Family Court of May 25, 2012 – the applicant took his case to the highest courts, introducing appeals and making repeated requests for access to his children. This act supported procedural ivity contrast to that prevailing in the proceedings before the Family Court, during which the applicant was not represented by a lawyer.
118. Notwithstanding the margin of appreciation enjoyed by the respondent State in the present case, the Court does not consider that the institutionalization of measures for their adoption, imposed on seven of his children, Mr. , Y, R, L., S., A. and R., and executed from the last six, to the extent that it deprived the applicant of her parental rights in respect of his children and contacts with them, causing the rupture of the biological family relationship was relevant and adequate in relation to the legitimate aim pursued and therefore necessary in a democratic society. To arrive at this conclusion the Court has had particular regard to the above considerations, namely, the absence of violence or abuse physical (compare R. and H. v. United Kingdom , n o 35348/06 , § 85, 31 May 2011), sexual or psychological against children, the existence of strong emotional bonds with them, the lack of response from social services to the physical distress of the applicant s mother a large family, exercising his almost single parenting. It also notes that the courts had not properly considered the cultural differences in the context of the proceedings in question and raises the pressure on it for submission to a sterilization operation under the procedure protection of minors.
119. Since the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , cited above, § 59), the Court considers that the measures adopted by the placement of children in courts of the applicant for adoption, depriving her of her parental rights, have spared a balance the interests at stake in the domestic proceedings ( R. and H. , supra, § 72). It does not appear, moreover, that the courts have considered other less restrictive measures, including foster care and institutional care, established by Article 35 § 1 e) and f) of the Law the protection of children and youth at risk (see paragraph 61 above).
120. In conclusion, on the basis of the foregoing, the Court finds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L. , MS, A. and R. for their adoption (paragraphs 104-107).
121. In addition, there has been a violation of Article 8 of the Convention that the decision of placing children in an institution for adoption took account of the failure by the applicant to its commitment to undergo sterilization by tubal ligation (paragraphs 109-111).
122. The Court also considers that there has been interference with the right of the applicant to respect for his family life due to the prohibition of any contact between her and her children. There has therefore been a violation of Article 8 of the Convention in this regard (paragraphs 112-114).
123. Finally, there has been a violation of Article 8 of the Convention because the decision-making process that led to the placement of children in institutions for their adoption, which was not conducted fairly saw the lack of effective involvement of the applicant (paragraphs 115-117).
III. APPLICATION OF ARTICLE 39 OF THE RULES OF COURT
124. The Court recalls that according to Article 44 § 2 of the Convention, this judgment will become final a) when the parties declare that they do not require the transfer of the case to the Grand Chamber; or b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or c) when the panel of the Grand Chamber rejects the request to refer under Article 43 of the Convention.
125. The Court considers that the measures it has indicated to the Government pursuant to Article 39 of Regulation (paragraphs 53-56 above) should remain in force until the present judgment becomes final or that it makes a further decision in this regard. After the final judgment, the applicant may, if necessary and if desired, make a new application for interim measures under Article 39 of the Rules of Court.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
126. Under Article 41 of the Convention,
“If the Court finds that there has been violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party allows only partial reparation consequences of this violation, the Court awards the part injured, if necessary, just satisfaction. ”
127. The applicant claimed 150,000 euros (EUR) for pecuniary damage.
128. The Government left to the discretion of the Court.
129. Given the circumstances of the case and the four findings of violations of Article 8 of the Convention contained in paragraphs 120, 121, 122 and 123, the Court considers that the applicant suffered non-pecuniary damage. Given all the evidence before it and equitable basis, as required by Article 41 of the Convention, the Court considers it appropriate to award the applicant EUR 15 000 for non-pecuniary damage .
130. Under the particular circumstances of this case and the urgent need to end the violation of the right of the applicant to respect for his family life, the Court invited the national authorities to review, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children (see, mutatis mutandis , Bondavalli v. Italy , n o 35532/12 , §§ 83 and 91, November 17, 2015, and RMS, § 101).
B. Costs and expenses
131. The applicant made no application for costs and expenses. The Court considers that there is therefore no need to grant it to award under this head.
132. The Court considers it appropriate to base the default interest rate on the interest rate on the marginal lending rate of the European Central Bank plus three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Decides to continue to indicate to the Government, pursuant to Article 39 of the Rules, it is desirable in the interests of the proper conduct of the proceedings, to take appropriate measures to ensure the right of visit the applicant to his children having been an institutionalization for their adoption until the present judgment becomes final or she makes another decision in this regard;
3. Holds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L., S., A. and R. for their adoption ;
4. Holds that there has been a violation of Article 8 of the Convention on account of the fact that children’s placement decision in an institution for adoption took account of the failure by the applicant of its commitment to submit to sterilization by tubal ligation;
5. Holds that there has been a violation of Article 8 of the Convention on account of the ban on contact between the applicant and her children M., Y, R, L, MS, R and A. . June 8, 2012 to March 5, 2015;
6. Holds that there has been a violation of Article 8 of the Convention due to the lack of effective involvement of the applicant in the decision making process that resulted in six of institutionalization of children for their adoption ;
7. Holds that local authorities will reconsider, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children;
a) that the respondent State is to pay the applicant, within three months from the day the judgment becomes final in accordance with Article 44 § 2 of the Convention, 15 000 EUR (fifteen thousand euros), plus any tax that may be chargeable to tax for non-pecuniary damage;
b) that from the expiry of that period until settlement, this amount will increase to simple interest at a rate equal to the marginal lending rate of the European Central Bank during the period, plus three percentage points;
9. Rejects the claim for just satisfaction to the remainder.
Done in French, and notified by 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-PassosAndrás Sajó
At this stop is attached, in accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court of the separate opinion of Judge A. Sajó.
CONCURRING OPINION OF JUDGE SAJÓ
I fully agree with the judgment. I think it is important to emphasize that the best interests of the child is – except in exceptional cases – to be with her parents. The 1989 Convention on Children’s Rights provides in Article 3 § 1, that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. A primary consideration does not exclude the existence of other considerations and in the presence of a Convention right, we must strive to harmonize different interests. However, it is important to emphasize that the best interests of the child is not in principle opposed to the fundamental right of parents to live a family life with their children. The rule of the best interests of the child shall be construed as a rule excluding the fundamental rights of parents. Moreover, we find this consideration in Article 9 § 1 of the Convention on children’s rights:
“States Parties shall ensure that the child is not separated from their parents against their will, except when competent authorities determine, […], that such separation is necessary for the best interests of the child. ”
Similarly, the Court has recognized that it is as much in the child’s interest and in that of his parents that the relationship between he and his family are kept, except in cases where the latter has shown particularly unworthy: break those links back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time v enu, “reconstitute” the family ( Gnahoré v. France , n o 40031/98 , § 59, ECHR 2000 – IX).
According to the principles established by case law of the Court, where the existence of a family tie with a child has been established, the state must act to enable that tie to develop and provide legal protection making possible the integration of the child in his family (see, mutatis mutandis , Kroon and others v. the Netherlands , 27 October 1994, series A n o 297-C, § 32, and Wagner and JMWL v. Luxembourg , n o 76240/01 , 28 June 2007). For parent and child of each constitutes a fundamental element of family life. Moreover, if the Court finds a measure concerning interference with the exercise of rights protected by the Convention is “necessary in a democratic society” requires that the reasons given for the measure in question is relevant (and sufficient ).
Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).
Originally the unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.
We discussed proportionately and the ECHR on the CPR fairly recently (either late last year or early this) although i cannot remember exactly which thread it was.
A point was made that the child ‘saviours’ views and opinions of what comprised the ‘best interests of children’ does not satisfy the requirement which states there has to be a ‘pressing social need ‘for interference in family life’.
This can perhaps be summed up by saying this. The pressing social need for keeping a child with natural parents cannot be trumped by what professionals see as the best interests of the child. It is not in the Public interest to remove children permanently ( liquidate families ) therefore forced adoption and other permanent removal plans should be outlawed.
Such plans should only be ordered in the most dire circumstances when absolutely nothing else will do. At the very least , something approaching deliberate malice would need to be proven ( as in the case of Fred West and other convicted malicious abusers) for the order to satisfy Article 8.
The Portugese case supports what we were discussing ,in my opinion. Unfortunately,as we all know, it will make no difference to us in the U.K. unless our lawyers enforce these ECHR principles in the lower courts, also when it is so hard for parents to get permission to appeal. This is one reason why i reckon there should be an automatic right of appeal and/or lower court hearings should be scrupulously fair. That will mean a radical reform of the judicial system.