ECHR judgment of 22 June 2017 in the case of Barnea and Caldararu v. Italy (application No. 37931/15).
In 2015, the applicants were assisted in preparing the application. The application was subsequently communicated in Italy.
The case successfully considered the complaint of the applicants for the removal of the child from the parents and its recognition as suitable for adoption based on inadequate living conditions in the family. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants are the Roma family. The parents (the first two applicants) and their four children (three other applicants) lived in the camp in inadequate conditions.
In June 2009, the youngest daughter was placed in an institution, and then recognized as a child by the first instance court in December 2010. The applicants were criticized primarily in connection with the evasion of the creation of an adequate material living conditions for the child and transferring it to a third party. However, in October 2012, the Court of Appeal decided that the child should be returned to his family in six months. Social services failed to comply with this instruction, and in November 2014 the court extended the child's stay in the foster family. In January 2015, the appellate court overturned this decision, but supported the child's stay in the foster family, in which the girl lived for six years.
Finally, in August 2016, the court of first instance ordered the return of her to her family. The child was returned to the family in September 2016, which the family considered a very difficult experience.
ISSUES OF LAW
Notwithstanding the limits of the discretion of the respondent Government, the Italian authorities failed to take adequate and sufficient measures to ensure the applicants' right to stay with their child from June 2009 to November 2016, subject to the conditions in which they were separated, and the failure to comply with the decision of the Court of Appeal 2012 year, providing for the return of the child to the family, which violated the applicants' right to respect for their family life.
Firstly, the grounds on which the trial court refused to return the daughter to the applicants and found it suitable for adoption did not constitute "very exceptional circumstances" that could justify the breakdown of family ties. In addition, before the placement of the child and the adoption procedure, authorities had to take practical measures to allow the girl to live with the applicants.
No allegations of ill-treatment, sexual abuse or emotional shortcomings, other disturbing health problems, or psychological instability on the part of parents were made at any stage of the proceedings. On the contrary, the connections between the parents and the child were particularly strong. The applicants could fulfill their parental responsibilities and not have a negative impact on the development of the child. In addition, the first expert opinion suggested starting the process of reintegration of the child into the family.
Secondly, after the decision of the Court of Appeal in 2012, the plan to restore relations between the applicants and the child in the recommended six months was not fulfilled. The court of first instance extended the stay in the foster family and reduced the number of visits of the girl and her family to four per year, based their decision on the applicants' behavior and physical living conditions, the potential difficulties of reintegrating the child into their own family and the strong ties that the applicant's daughter had in the waiting room family.
The fact that a child could be placed in a more favorable environment for her upbringing, by itself, can not justify the compulsory measure of removal from the care of biological parents. In the present case, the applicants' ability to provide their child with educational and emotional support was not a problem and was repeatedly acknowledged by the appellate court.
Thirdly, although the decision of the court of first instance was subsequently abolished in 2015, the appellate court nevertheless confirmed the receiving placement on the grounds that, in view of the expiration of time, six years in this case, very strong ties with the foster family were formed, and the return of the child to the applicants was already unworkable.
However, effective respect for family life required that the future relationship between the parent and the child should be determined solely in the light of all relevant arguments, and not just a mere passing of time. In the present case, the motives given by the social services, and subsequently by the judicial authorities for refusing the return of the child to the applicants, were not "very exceptional" circumstances that could justify the disruption of family ties.
The Court acknowledged that, in view of the passage of time and the integration of the child into the foster family, the courts of the respondent State could refuse to return him. However, in the present case, the expiration of time due to the inertia of social services at the beginning of the process of family reconstruction and the reasons given by the first instance court to extend the temporary placement of the child were decisive factors in preventing the applicants from reuniting with the child, which was due in 2012.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded the applicants EUR 40,000 in respect of non-pecuniary damage.