The ECHR ruling of April 01, 2021 in the case "A.I. v. Italy" (application No. 70896/17).
In 2017, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Italy.
In the case, an application was successfully considered about the fact that the applicant of Nigerian origin, a victim of human trafficking, was deprived of any contact with her children, contrary to the recommendations of experts and before making final decisions on the possibility of adopting children. The case involved a violation of the requirements of article 8 of the Convention.
CIRCUMSTANCES OF THE CASE
The applicant, who is of Nigerian origin and is a victim of human trafficking, was unable to contact her two children due to the ban on communication established by the Juvenile Court in the case of the possibility of adopting children, although the proceedings on the status of the applicant's children (in relation to the possibility of their adoption) at that time had lasted for three years and it hasn't been completed yet.
Regarding compliance with article 8 of the Convention. The appealed decisions were an interference with the applicant's right to respect for her family life. The intervention was provided for by the Italian Adoption Law and pursued the legitimate aim of "protecting the health and morals" and "protecting the rights and freedoms" of the two children.
The applicant's children were declared free for adoption by an interim decision of the juvenile Court on the grounds that their parents had abandoned them. The children's mother, who is of Nigerian origin, came to Italy as a victim of human trafficking and did not have the necessary parental skills to raise children. The Court decided to terminate contacts between the applicant and her children, without indicating any compelling reasons for making such a serious decision.
Eight months later, the Court of Appeal, deciding on the applicant's urgent interim request to suspend the ban on contacts with children, rejected this request and decided to conduct an examination on whether such meetings would be in the best interests of the children. Despite the conclusions of experts who stressed the importance of maintaining mother-child contacts in order to allow the children to develop their individuality, the Court of Appeal in its subsequent decision, in which it also indicated that the children were subject to adoption, ruled that the applicant's contacts with the children should not be resumed, given that the decision to recognize the applicant's children as subject to adoption, all the children's ties with the family of their origin were severed. However, the court did not explain why these contacts should have been stopped for the period until the decision to recognize the applicant's children as subject to adoption entered into legal force.
The Court of Cassation, to which the applicant filed a legal complaint, overturned the decision of the Court of Appeal on the grounds that this court did not take into account the section of the expert opinion, which emphasized the following: in order for the children to develop personally, they need to maintain contact with their mother. Also, the Court of Appeal did not consider the possibility of applying another adoption scheme in this case, taking into account the best interests of the children.
Despite the availability of less radical ways to solve the problem, the Italian courts nevertheless decided to suspend all contacts of the applicant with the children, although there was no evidence that the children would have been subjected to violence or abuse, contrary to the recommendations of experts and without giving reasons for such a decision, which led to the final and irrevocable separation of the children from mother. The Italian courts have not analyzed the question of whether an irrevocable break in the relationship between a mother and her children would really be in the best interests of the children.
The Italian courts sent the applicant's children to two different families. Consequently, these measures not only destroyed the applicant's family, but also separated close relatives and contradicted the best interests of the children.
The appealed decision was taken despite the fact that the applicant was a victim of human trafficking. Although, in general, the Italian authorities provided the applicant with medical and humanitarian assistance, the courts, on the contrary, did not take into account her vulnerable situation when assessing her parenting skills and considering her request to maintain contact with children. However, taking into account the importance of the interests involved in the case, the authorized Italian authorities should have assessed the applicant's vulnerable situation more thoroughly during the relevant proceedings. In this regard, paragraph 7 of article 12 of the Council of Europe Convention on Combating Trafficking in Persons establishes that it is necessary to take due account of the special needs of persons in vulnerable situations.
In addition, the Italian courts assessed the applicant's parenting skills without taking into account her Nigerian origin or other patterns of parent-child relationships that existed in African culture, although this factor was clearly noted in the expert opinion.
During the proceedings, as a result of which contacts between the mother and her children were terminated, insufficient attention was paid to the possibility for the applicant and her children to lead a family life. Thus, the appealed proceedings were not accompanied by guarantees that would be proportional to the severity of interference in the interests affected by the case.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 15,000 euros in compensation for non-pecuniary damage.