The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Ri Сведения: 2020-04-02 06:42:18

ECHR judgment of 18 June 2019 in the case of Haddad v. Spain (application N 16572/17).

In 2016, the applicant was assisted in preparing the application. Subsequently, the application was communicated by Spain.

The case has successfully examined the application about the transfer of the girl to the family, which was to be adopted, despite her father's acquittal for domestic violence and the return of her two older brothers under his guardianship. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


In 2012, as part of a domestic violence case initiated by the applicant’s spouse, the court issued an injunction against him, according to which he was forbidden to approach his children.

In June 2012, at the request of her mother, who claimed that she could no longer take care of children, three children of the couple (two older boys aged nine and six years and a girl and a half years old) were recognized as left without parental care, and they were transferred under custody, and then placed in the appropriate institution. The applicant was not notified of this.

In June 2013, the orientational report noted that the applicant’s wife was a mentally unstable person and stated that the father had mistreated the children. On 24 September 2013 the applicant's daughter was transferred to the family, which was to adopt her.

On 27 September 2013 the applicant was acquitted in the above case. In this regard, the ban on his contacts with children was lifted, and he quickly returned the two boys to his care.

In November 2013, representatives of the juvenile protection service met for the first time with the applicant, but he was denied the possibility of renewing contacts with his daughter. The administrative authorities continued to lean in favor of the need for the girl to be in a foster family, referring to the applicant’s serious physical and psychologically ill-treatment of the children, the emotional instability and limited mental abilities of the mother, and the fact that the applicant had no contact with the children since June 2012, as well as the lack of affection between the applicant and his daughter.

In February and December 2014, the conclusions noted a good integration of the applicant's daughter into the foster family. In a decision of 2015 and a ruling of the second instance court of 2016, the courts approved the transfer of the girl to a foster family.


QUESTIONS OF LAW


Concerning the application of Article 8 of the Convention. The European Court is not convinced of the reasons that the administrative authorities and courts of Spain recognized as sufficient to justify the transfer of a minor girl to a foster family, namely that:

- at no stage of the administrative procedure were taken into account: i) the young age of the applicant’s daughter at the time of her separation from her mother; ii) the affection that previously existed between the girl and her parents; iii) the period that has elapsed since their separation; iv) the consequences that ensued for all three children, as well as for the relationship of the girl with her brothers;

- the physical ill-treatment was not proven and was only mentioned in the June 2013 report, which seemed to refer to the contents of the complaint of domestic violence (the charges, which had by then been withdrawn from the applicant);

- the mental imbalance of the applicant’s spouse did not in any way prove the possibility of negative influence on the part of the applicant, on the contrary, rather, testified to the opposite (at least after his acquittal). Evidence of this allegation was the fact that the applicant had returned his two sons to his custody and that he had insisted on recovering his minor daughter;

- the courts did not establish any signs of deprivation (an issue that they did not consider in relation to the applicant), nor health problems that deserved attention, nor material problems or unsatisfactory living conditions on the part of the applicant. His affection for children, as well as his assistance in learning, have not been officially disputed.

The Court has also found serious violations committed by the Spanish authorities in showing due diligence in the examination of relevant issues. Administrative authorities should have considered less drastic measures compared to transferring a girl to a foster family before her adoption, and in any case, taking into account the father’s demands from the moment the situation with his criminal case became clear. The proceedings should have been accompanied by appropriate guarantees to protect the rights of the applicant and take into account his interests.

Of course, it can be understood that three children were first placed under guardianship of the administrative authorities, as their own mother requested this. However, this decision should have been accompanied in the shortest possible time by appropriate measures that would allow a thorough assessment of the situation of children, if necessary separately with the father and mother.

Taking into account the injunction prohibiting the applicant’s contacts with children at a time when the situation was especially serious, given the age of her daughter, who was only a year and a half at the time of custody of her. Over time, the situation, which was supposed to be temporary, became final.

The child protection service was initially based on conclusions drawn up at a time when the applicant could not prove his ability to be a father, as he was deprived of parental rights and criminal proceedings were instituted against him. The approach of the administrative authorities of the respondent Government did not change after the applicant was finally acquitted: the authorities did not evaluate the change in the circumstances of the case on the basis of the evidence in the case.

As regards the Spanish courts, on their part subsequently there was some inaction (even though the applicant had the opportunity to present his arguments): they limited themselves to taking into account the consent to the transfer of the girl to the foster family of the body authorized in the field protection of minors, and the foster family itself, and then that they upheld the decisions of the administrative authorities on the basis of the arguments of the latter, automatically reproduced

throughout the proceedings.

From the Court’s point of view, the authorized bodies themselves were responsible for interrupting the contacts between the applicant and his daughter (at least after his acquittal) and did not fulfill their positive obligation to restore them. The Court observes the following:

- if the vulnerability of the applicant’s wife were taken into account at the time of transferring the girl to the care of the state, this could play an important role in understanding the situation in which the girl and her mother were;

- it appears that the applicant’s final acquittal and the lifting of the ban on contact with children did not attract the attention of the courts, however, this prohibition explained the prolonged lack of contact, which was used as an argument against the applicant to refuse to restore contact with his daughter and uphold the decision to transfer of a girl to a foster family before her adoption;

- despite the fact that the February 2014 report referred to “fear” and “lack of trust in the father” by the children, the applicant quickly returned two other children to his guardianship (in relation to whom, unlike the girl, production for the purpose of their transfer to a foster family before adoption).

Thus, the time lost and the inertia of the Spanish courts, which did not find the arguments of the administrative authorities unreasonable, had a decisive influence on the situation and led to the absence of any possibility of the applicant’s reunion with his daughter.

Despite the margin of appreciation permissible for the respondent States in this area, the Court concludes that the Spanish authorities did not take appropriate and sufficient efforts to protect the applicant's right to live with her daughter and her brothers.


RESOLUTION


In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).


COMPENSATION


In application of Article 41 of the Convention. Noting that Spanish law provided, if necessary, without prejudice to the rights of bona fide third parties, the possibility of reviewing final decisions after a decision by the European Court, the Court urged the respondent Government to promptly review, in particular, regarding the possibility of re-establishing contact between the applicant and his daughter, and that appropriate measures be taken that are in the best interests of the child.

 

 

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