#ECHR Judgements as Precedence for Child Protection Issues: #ForcedAdoption #ChildSnatching #Custody

This is Dr Marica Pirosikova’s contribution to the Round Table seminar hosted at the EU Parliament on 02 June 2015:

Dear Mr Chairman,

I am grateful for your initiative in organising this important event.

Dear Honourable Members of the European Parliament, dear Ladies and Gentlemen,

From my point of view there are many Convention issues rising from the cases of children removal from their biological family and I would like to share with you our experience in the Slovak Republic.

Over the last three years I have been in touch with a certain number of cases as a result of Slovak parents contacting me and requesting help. On the 3rd of August 2012, after having studied the case files thoroughly, I publicly expressed serious concerns over cases of adopting children from their living biological parents without relevant reasons (with regards to the guarantees of Article 6 and 8 of the European Convention on Human Rights), occurring upon the decisions of the English courts and the subjects who were also Slovak citizens. I pointed out that the situation was also criticized by the British media, drawing attention in this regard to systemic shortcomings. I stressed that the respected British politician, MP John Hemming, who is also Chairman of the Justice for Families Campaign Group, has been attempting to effectuate a reform in this regard and help individuals facing unjustified adoption. Mr Hemming expressed his willingness to help Slovak citizens in analogical situation by providing adequate legal aid in the proceedings before the English courts. He also drew our attention to the opportunity to enter into proceedings as a third party and to ask for the remission in the case of Boor children. Thanks to these efforts the Boor children were successfully returned to the Slovak Republic where they currently live with their mother.

This case was unfortunately not the only one. Other cases followed and were published by both the British and Slovak press. The effectiveness of the active approach taken by the Slovak Republic intervening in the proceedings before English courts as a third party was proved by the important judgments of Sir James Munby[1]. It is a challenge also for the other countries claiming not to be able to help their citizens facing separation of children from their parents without relevant reasons in the United Kingdom (or others countries), to intervene actively in such proceedings before the family courts[2]. At the same time, it is very important for the intervening country to assess the cases also with regard to European Court case law.

According to European Court taking a child into care is by far the most extreme measure and regularly requires domestic authorities to adopt additional measures of support if those are able to reach the pursued aim.

The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with their child.

In the case Wallová and Walla v. the Czech Republic (judgment of 26 October 2006) the applicants had been separated from their children on the ground that they faced material difficulties making them unable to provide a suitable home for their five children. They also complained about the lack of assistance on the part of the Czech authorities. The Court held that there had been a violation of Article 8 of the Convention. It found that the care order in respect of the applicants’ children had been made solely because the large family had been inadequately housed at the time. Separating the family completely on the sole grounds of their material difficulties had been an unduly drastic measure and other, less intrusive measures would have been available to ensure respect for the best interests of the children. The national social welfare authorities had powers to monitor the applicants’ living conditions and hygiene arrangements and to advise them what steps they could take to improve the situation themselves and find a solution to their housing problem.

The case R.M.S. v. Spain (judgment of 18 June 2013) concerned the placement of a child with a foster family on account of her mother’s financial situation and without taking into account subsequent change in circumstances. The applicant complained mainly of being deprived of all contact with her daughter and being separated from her without good reason. The Court held that there had been a violation of Article 8 of the Convention, finding that the authorities had failed to make adequate and effective efforts to secure the applicant’s right to live with her child.

In the case Kutzner v. Germany (judgment of 26 February 2002) the applicants, a married couple, complained that the withdrawal of their parental authority in respect of their daughters and the placement of the latter in foster families, mainly on the grounds that the parents did not have the intellectual capacity to bring up their children, had breached their right to respect for their family life. The Court held that there had been a violation of Article 8 of the Convention. It found that, whilst the reasons given by the national authorities and courts had been relevant, they had not been sufficient to justify such a serious interference with the applicants’ family life.

In the case Zhou v. Italy (judgment of 21 January 2014) the European Court held that there had been a violation of Article 8 of the Convention, finding that the Italian authorities had not fulfilled their obligations before envisaging the severing of family ties, and had not made appropriate or sufficient efforts to ensure respect for the applicant’s right to live with her child. In particular, the paramount need to preserve, in so far as possible, the family ties between the applicant, who was in a vulnerable situation, and her son, had not been duly considered. The judicial authorities had merely assessed the difficulties, which could have been overcome through targeted support from the social welfare services. The applicant had had no opportunity to re-establish a relationship with her son: in reality, the experts had not examined the real possibilities for an improvement in the applicant’s ability to look after her son, bearing in mind also her health. Furthermore, the Italian Government had provided no convincing explanation which could justify the severing of the maternal affiliation between the applicant and her son.

Taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measure of implementation should be consistent with the ultimate aim of reuniting the natural parent with his or her child.

In the case of A.D. and O.D. v. the United Kingdom (judgment of 16 March 2010) a 5 months old baby (O.D.) was admitted to hospital and a full skeletal survey confirmed four fractures. The County Court granted an interim care order by which the family had been relocated to the Family Resource Centre, some 150 miles away. The report noted that the couple presented as being very capable of caring for O.D. However, the local authority concluded that O.D. could not safely be placed with his parents and O.D. was placed with foster parents. The first applicant was allowed contact for a period of four hours a day for five days during the week. Tests indicated that O.D. had suffered from birth from osteogenesis imperfecta. The Court was not persuaded that less intrusive measures were not available, such as placing O.D. with relatives. It recalled that the local authorities could only exclude this option if it was not reasonably practicable or in the interests of O.D.’s welfare. The European Court found that it dismissed this option too quickly without giving it proper consideration. Finally, the European Court found that the period of time which elapsed between the final assessment and the return of O.D. to his parents’ care (more than six weeks) was not reasonable in the circumstances. The foregoing considerations were sufficient to enable the European Court to conclude that there has been a violation of Article 8.

In the case M.A.K. and R.K. v. the United Kingdom (judgment of 23 March 2010) a nine years old child’s illness was mistaken for signs of sexual abuse. After 10 days the second applicant was diagnosed with Schamberg’s disease, a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin. During this period, all visits of parents were supervised on account of the suspicion that she had been sexually abused. The applicants complained that their separation during the ten days that the second applicant was in hospital violated their right to respect for their private and family life under Article 8 of the Convention. The European Court held that if the dermatologist had been consulted immediately, the second applicant’s condition could have been diagnosed some days earlier. The European Court held that while there were relevant and sufficient reasons for the authorities to suspect abuse at the time the second applicant was admitted to hospital, the delay in consulting a dermatologist extended the interference with the applicants’ right to respect for their family life and was not proportionate to the legitimate aim of protecting the second applicant from harm. Consequently, the Court found that there has been a violation of the applicants’ right to respect for their family life under Article 8 of the Convention.

According to European Court taking of a new-born baby into public care at the moment of its birth as “an extremely harsh measure“ and held that a newborn can be removed from his or her mother only for “extraordinarily compelling reasons” (see K. and T. v. Finland, GC judgment of 12 July 2001).

In the case K. and T. v. Finland (GC judgment of 12 July 2001), the applicant mother had been diagnosed as suffering from schizophrenia. When she was expecting her third child J., the Social Welfare Board, considering that the applicant was unable to care for her second child M., placed him in a children’s home as a short-term support measure consented to by the applicants. As soon as she was born, the third child J. was, by virtue of an emergency order, placed in public care given the applicant’s unstable mental condition. In a further emergency order, issued a few days later, the second child M. was likewise placed in public care. The Court held, unanimously, that there had been a violation of Article 8 in respect of the decision to take into care of child at birth and failure of authorities to take proper steps to reunite parents and children in care. The taking of a new-born baby into public care at the moment of its birth was an extremely harsh measure. There needed to have been extraordinarily compelling reasons before a baby could be physically removed from the care of its mother, against her will, immediately after birth, as a consequence of a procedure in which neither she nor her partner had been involved. Such reasons had not been shown to exist. The authorities had known about the forthcoming birth of J. for months in advance and were well aware of the applicant’s mental problems, so the situation was not an emergency in the sense of being unforeseen. The Finnish Government had not suggested that other possible ways of protecting J. from the risk of physical harm from mother had even been considered. Even having regard to the national authorities’ margin of appreciation, the Court concluded that the emergency care order in respect of J. and the methods used in implementing that care were disproportionate. Different considerations came into play as far as the second child was concerned. He had already been physically separated from his family as a result of his voluntary placement in a children’s home. The national authorities were therefore entitled to consider it necessary to take exceptional action, for a limited period.

Parents must be involved in any decision-making process concerning children to a degree sufficient to provide them with a requisite protection of their interests.

The case T.P. and K.M. v. United Kingdom (GC judgment of 10 May 2001) concerned the placement of a four-year-old girl in the care of the local authorities. She had complained that she had been sexually abused and her mother was considered incapable of protecting her. The mother and daughter alleged that they had had no access to a court or to an effective remedy to challenge the lack of justification for this placement, which had separated them. The European Court held that there had been a violation of Article 8 of the Convention, the mother having been deprived of an adequate involvement in the decision-making process concerning the care of her daughter. At the same time held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, as the applicants had no appropriate means of obtaining a determination of their allegations that their right to respect for their family life had been breached, and no possibility of obtaining an enforceable award of compensation for the damage suffered as a result.

Finally, I draw your attention to the report of Committee on Legal Affairs and Human Rights of Parliamentary Assembly of Council of Europe “Human rights and family courts[3].  The Committee takes a look at the functioning of family courts in Europe. It is especially concerned about certain cases in which children have been withdrawn from their family against the wishes of their biological parents. Children should only be separated from their biological parents as a last resort, given that a family environment offers the best conditions for the proper development of children. Children should only be adopted or placed in care in accordance with the principles established in the 1989 United Nations Convention on the Rights of the Child and the European Convention on Human Rights, and the courts should give priority to the child’s best interests. Member States are also invited to give concrete assistance to families in difficulty so as to reduce, insofar as possible, the number of cases in which children are taken away from their parents. Finally, member States are called upon to sign and/or ratify all relevant Council of Europe conventions on the rights of children and implement the 2010 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice. I would like to draw your attention also to the report of Committee on Social Affairs, Health and Sustainable Development “Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States”[4]. According to this report children have the right to be protected from all types of violence, abuse and neglect. But children also have the right not to be separated from their parents against their will, except when the competent authorities determine that such separation is necessary for the best interests of the child. In the absence of a child being judged to be at risk or imminent risk of suffering serious harm, in particular physical, sexual or psychological abuse, it is not enough to show that a child could be placed in a more beneficial environment for its upbringing to remove a child from his or her parents and even less to sever family ties completely. Children’s rights are violated both by unwarranted decisions taken in member States to remove them from (or not to return them to) parental care, and by unwarranted decisions not to remove them from (or to return them prematurely to) parental care. Member States should thus put into place laws, regulations and procedures which truly put the best interest of the child first in removal, placement and reunification decisions. The competent Council of Europe body should develop policy guidelines for member States on how to avoid practices deemed abusive in this context, namely (except in exceptional circumstances) severing family ties completely, removing children from parental care at birth, basing placement decisions on the effluxion of time, and having recourse to adoptions without parental consent.

However, if it is useful to argue in the proceedings before the family courts by the European Court case-law then there are many cases in which human rights were violated at the national level. For the family concerned it is not an efficient solution to lodge an application to the European Court. This is because in many countries, including the United Kingdom, there is no possibility to reopen the civil proceedings on the basis of the European Court judgement. In these cases the person concerned could obtain only just satisfaction but it is not a sufficient redress of the situation. On many occasions I pointed out this problem at the Council of Europe level[5]  arguing that, in these cases, the reopening of the proceedings before family courts must be granted at the national level and requested as necessary an individual measure at the Committee of Ministers level during the execution of the European Court´s judgement.

With regards to the above mentioned and the fact that in the Brussels II bis Regulation only procedural rules are formulated, I support the adoption of new rules concerning the material part of the problem described at the European Union level. This solution will have the impact not only on the problem concerning the children of foreign citizens but also to the forced separation of children from their parents without relevant reasons in the European Union Member States. In this regard the constant case law of the European Court formulated in the field of Article 8 and Article 6 of the Convention and the PACE resolution 1908(2012) adopted on 30 November 2012[6] and PACE resolution 2049(2015)[7] and recommendation 2068(2015) adopted on 22 April 2015[8]  will be a useful source of inspiration. At the same time I fully support the idea of creating a new international supervising or judicial body able to properly react and sufficiently redress the violation of children’s rights in the European Union.

For these reasons, as well as taking into consideration sensibility of the problem and vulnerability of the victims, I highly appreciate this round table grouping together of many experts from different countries who are in their daily practice fighting for children’s rights and I would like to say all of you a big thank you for your efforts.

JUDr. Marica Pirošíková

Agent of the Government of the Slovak Republic before the ECHR

[1] http://www.familylawweek.co.uk/site.aspx?i=ed126781,http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/re-a-and-b-children-brussels-ii-revised-article-15-2014-ewfc-40

[2] http://www.telegraph.co.uk/comment/11657472/A-rising-tide-of-anger-across-Europe-at-Nazi-social-workers.html

[3] http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=19190&Language=EN

[4] http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21567&lang=en

[5] http://www.coe.int/t/dghl/monitoring/execution/Source/Documents/Tables_rondes/TR_Strasbourg_13-14%20octobre%202014/TR_Strasbourg_Programme_EN.pdf and http://www.coe.int/t/dghl/standardsetting/cddh/reformechr/DH_GDR/DH-GDR(2015)OJ008_EN.pdf

[6] http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=19220&lang=en

[7] http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21737&lang=en

[8] http://assembly.coe.int//nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=21738&lang=en

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