ECHR judgment of 23 June 2020 in the Case of Omorefe v. Spain (aplication No. 69339/16).
in 2016, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Spain.
The case was successfully reviewed against an aplication the deprivation of the applicant of the opportunity to see your child that her application was placed in the shelter custody of the state, and were subsequently transferred to the adoptive family for adoption without consent of the applicant. The case violated the requirements of article 8 of the Convention for the protection of human rights and fundamental freedoms.
CIRCUMSTANCES OF THE CASE
The applicant is originally from Nigeria. In February 2009, her son, who was almost two months old at the time, was placed in a shelter under the care of the state at the request of his mother and declared abandoned. The applicant's parental rights were suspended, but the regime of visits established by the authorities and the right of the minor's parents to receive information about him remained in force. In the beginning, the authorities considered in the medium term the possibility of reintegrating the child into his native family, if his parents fulfill a number of conditions with the support of social services. In addition, the process was to be reviewed by the juvenile protection authorities within six months.
However, in may 2009 the applicant's visits with her son were suspended and the boy was placed in a foster home for adoption. This decision was due to the lack of funds for the child's parents, who were in the country illegally and had no permanent housing or permanent work, crisis and conflict relations between parents and the ambivalent attitude of the mother to the child. The applicant objected to the termination of visits with her son and his adoption.
Referring mainly to the applicant's lack of parental skills, the court of first instance considered that the child could have been adopted without her consent. However, in 2012 this decision was overturned by the national judicial presence of Spain (Audiencia provincial), because the applicant, who at that time was not deprived of parental rights, had to give consent to the adoption. In this regard, the decision to transfer the child to a foster family for adoption was also canceled. In June 2015, the court of first instance recognized the applicant's right to see her son under supervision for one hour each month.
In October 2015, the National judicial presence overturned its previous decision (of 2012) and allowed the applicant's child to be adopted in the absence of the latter's consent and in the presence of a negative opinion of the Prosecutor. However, the National judicial presence indicated the possibility of establishing in the future "some form of relationship or contact through visits or communication with the birth mother".
Regarding compliance with article 8 of the Convention. The contested decisions, which led to the adoption of the applicant's child, constituted an interference with the exercise by her and her son of the right to respect for private and family life. This intervention was provided for by law and had the legitimate aim of protecting the rights and freedoms of the child. However, the Court noted that, despite the limits of the state's discretion, the decision-making process did not take into account all the views and interests of the applicant and did not provide guarantees commensurate with the seriousness of the interference and the interests involved in the case.
First, although the applicant was supposed to have been supported and assisted by social services in order to be reunited with her child, they did not conduct any assessment of her situation until 2013, thus leaving the applicant to decide for herself what measures she should have taken to meet the tasks assigned to her in this regard.
Secondly, the decision of the evaluation Commission, which proposed to transfer the child to a foster family for adoption, was taken only 20 days after the applicant was informed that she had been given six months to complete the tasks assigned to her and take the child to her home. Thus, long before the expiration of this period, she was already deprived of visits with her son, and at the same time, the authorized authorities referred the issue of adoption of the child without the consent of the mother to the court.
Third, as indicated by the National judicial presence in a 2012 ruling, the law required an adversarial trial on the issue of deprivation of parental rights, which was not done in the present case. At the same time, the authorities did not cite any serious reasons for not conducting the proceedings.
Fourth, the authorities did not compare the interests of the child and the mother, but focused on the interests of the child. They also failed to pay particular attention to the possibility of reuniting the child and his birth mother, and did not take due account of the efforts made by the applicant to legalize and stabilize her situation.
In this regard, in a 2012 ruling, the National judicial presence pointed out a number of shortcomings in the decision-making process. It noted that no psychological expert report had been received stating that the mother was not attached to her son, and that poverty could not have been the main reason for the mother's deprivation of her rights and obligations. The national judicial presence also decided that, despite the fact that the main purpose of the legislation was the reintegration of minors into their native family, this priority issue was not addressed in any way by the authorities.
Fifthly, the applicant was deprived of the right to see her son in may 2009 without any psychological examination. This significantly limited the assessment of the change in the applicant's personal situation and parenting skills at the relevant time. In addition, by consistently insisting on her demands, she succeeded in having her right to see her son under supervision restored by the court of first instance. However, although the court issued this decision, no meetings took place. The mother and son did not see each other even after the National judicial presence issued the latest ruling, which indicated the possibility of "relations or contacts through visits or communication with the birth mother" if it was in the best interests of the child.
As a result, the situation, which was supposed to be temporary, became final. In October 2015, the National judicial presence also gave consent to the adoption of the applicant's child on the grounds that he had been living in a foster family almost since his birth and that his mother did not have the necessary parenting skills. These conclusions were made without independent expertise.
While acknowledging that the Spanish courts had tried in good faith to protect the welfare of the child, the court noted that the authorities and the courts of first instance had failed to make adequate efforts in the course of the proceedings. Of course, it is obvious that the applicant's child was placed in the custody of the state at her request. However, this decision should have been accompanied by the adoption as soon as possible the most appropriate measures that would enable to assess the seriousness of the situation of the child and his relationship with his parents, if necessary, separately with mother and father, in full accordance with the legislation in force. The situation was particularly difficult due to the child's young age. The Court was not convinced by the reasons that the Spanish authorities and courts found sufficient to justify the transfer of the child to a foster family and its subsequent adoption, despite the applicant's explicit objections, who could only see her son for the first three months at the very beginning of the proceedings, which may indicate that the authorities immediately intended to transfer the child to a foster family for adoption. The administrative authorities did not consider the possibility of taking other, less drastic measures provided for by law, for example, transferring a child to a foster family on a temporary basis not for adoption, in which case the rights of foster parents are also more respected, since they do not have false expectations. The role of social protection agencies is precisely to help people in a difficult situation, in the present case, the mother of the child, who had to give up her son due to the severity of her personal and family situation.
Having regard to the above, the Court finds that the authorities failed to make the necessary and sufficient efforts to ensure the applicant's right to continue to see her son, thereby violating her right to respect for her private and family life.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 46 of the Convention. The court decided that it should not consider the applicant's request to re-establish contact with her child. However, in view of the specific circumstances of the present case and the need to stop the violation of the applicant's right to respect for her private and family life, the court invited the Spanish authorities to review the situation of the applicant and her minor son as soon as possible in the light of the present Judgment and to explore the possibility of establishing any contact between them, taking into account the best interests of the child, as well as to perform any other actions dictated by these interests. The court noted that the present Decision should also serve to enforce the decision of the Supreme territorial court, which provided for such a possibility. The most appropriate form of redress is to ensure, as far as possible, that the applicant is placed in the situation in which she would have been had there not been a violation of article 8 of the Convention. Spanish law provides for the possibility of reviewing final judgments found by the European court of Justice to violate the rights guaranteed by the Convention, "provided that such review does not violate rights acquired in good faith by third parties".
In the application of article 41 of the Convention. The applicant did not submit claims for compensation, so the European Court did not award her any sums on this basis.