CASE OF GNAHORE v. FRANCE
No violation of Art. 6-1;No violation of Art. 8;Preliminary objection rejected (non-exhaustion of domestic remedies)
Nicolas Bratza
9. The applicant was born in 1952 and lives at Villeurbanne (France). He is the father of three children whom he had been bringing up alone: I. and Ch., who were born in the Ivory Coast in 1974 and 1976 respectively, and C., who was born in France in 1988. 10. On 14 January 1992 the applicant took C. to the ophthalmic unit of Herriot Hospital in Lyons. The child, who presented bruising to each eye, a cut to the right forearm, abrasions to the abdomen and healed scar tissue to the face, was admitted to the paediatric ward. The Lyons public prosecutor's office was informed and a police investigation set in motion. On 15 January 1992 the public prosecutor made an order placing C. in the care of the child-welfare service (“the ASE”) of the Rhône département. A doctor examined the child on 16 January and concluded that his tegumentary lesions could have been caused by abuse. 11. On 17 January 1992 the investigating judge at the Lyons tribunal de grande instance charged the applicant with assault with intent by an ascendant on a minor aged under 15 and placed him under court supervision. 12. On 20 January 1992 the children's judge at the Lyons tribunal de grande instance made an order under Articles 375 et seq. of the Civil Code for C.'s temporary placement with the ASE and issued an injunction against the applicant banning him from “all contact before the hearing of 12 February 1992” on the ground that “... [C.] [had] been admitted to hospital and that he [was] at risk in the family home ...”. By a judgment of 12 February 1992 the children's judge placed C. with the ASE for a period of one year. He put the applicant's two other sons in the care of the same authority; I. was to remain in care until he reached his majority and Ch. for one year. The reasons given in the judgment were: “... the domestic situation is difficult and the children are in danger; ... their removal from home is necessary to enable relations with the father to become less conflictual and to make the children feel more secure by helping them to resolve their personal difficulties”. On an appeal by the applicant, the Special Minors' Division of the Lyons Court of Appeal upheld all the provisions of the judgment of the court below in a decision of 23 March 1992, on the following grounds: “... Mr Gnahoré is bringing up his three sons in circumstances made difficult in particular by the fact that he works as a night-watchman and the three mothers are absent: two live in Africa, while his relations with the third, Ch.'s mother, are very intermittent. ... on 8 January 1990 Mr Gnahoré applied for educative assistance measures in respect of his son, I., who had run away from home and was beyond his control; ... in an interview with the caseworkers on 12 April 1990, the father came across as someone who was inflexible, incapable of understanding his son's sufferings and with whom it would be impossible to implement any educative measures; I. has had to remain in care ... ... Ch. has been virtually abandoned and no longer tolerates the tension in his relations with his father or his father's authoritarianism. ... it appears that he is unable to obtain from his father a response to his emotional and educative needs. ... accordingly, since the conditions in which the minor is brought up are highly unsatisfactory, the order for Ch.'s placement will stand. ... ... on both occasions [C.] was admitted to hospital – on 3 August 1991 with a cranial traumatism and bruising to both eyelids and on 15 January 1992 with bilateral periorbital bruising – the public prosecutor's office was advised by the Lyons civil hospital authorities of the suspect origin of the injuries. ... whatever the origin of the injuries, it does not appear that Mr Gnahoré offers the material and educative guarantees necessary to ensure the child's health and safety. ...” 13. On 18 May 1992 Professor D., a doctor at Herriot Hospital, examined C. and found that he presented post-traumatic ecchymosis caused by a fall a few days' earlier in the home where he had been placed. On 25 May he said in a letter to the investigating judge that it was “possible that the child presented a propensity to major haematomic reaction to moderate trauma and [that it was] quite possible that that propensity had ... led to the degree of trauma being over-estimated during the child's two stays in hospital that had resulted in the public prosecutor's office being informed. ...”. A copy of that letter was sent to the children's judge. He also wrote to the public prosecutor's office. 14. By an order of 10 August 1992 the children's judge suspended the applicant's rights to contact until 30 September 1992 on the ground that “[the applicant's] visits invariably provoke[d] violent incidents, [C.] [was] disturbed and insecure afterwards, a carer had been subjected to violence by the applicant” and “arrangements were being made for [the child] to be placed with foster parents”. He further ordered that the name and address of C.'s foster parents were not to be communicated to the father and contact was only to be arranged after 30 September 1992, “in a neutral location to be determined by the ASE, and provided that there [was] no risk of violence and that Mr Gnahoré complie[d] with the timetable and the conditions imposed”. 15. In a judgment of 14 December 1992 the children's judge extended the period of C.'s placement with the ASE for a year starting on 12 February 1993. On an appeal by the applicant, the Special Minors' Division of the Lyons Court of Appeal upheld that judgment in a decision of 10 May 1993, subject to arrangements being made for contact. It held in particular: “... the ASE says that the child has made positive progress in his foster home, ... having gained in confidence and not demonstrating any behavioural disorders. ... the father does not accept the care order and the attitude of both father and son during the monthly visits is passive, although the boy subsequently vents his emotions. ... The father refuses to speak with the social workers. ... the father lodged a report by a forensic expert in the criminal proceedings with the court. In addition to containing an opinion on whether the abuse was intentional or not (a matter for the judge dealing with the criminal proceedings), it refers to the psychological trauma suffered by the child as a result of his separation from his mother and to the child's need to live in a home, as the father is unable in his present condition to assume both the paternal and maternal roles. ... those circumstances make it necessary to continue with protective measures, while it is hoped that relations between the father and the social services will improve through mutual acceptance. ... It does, however, appear necessary for the child's development to facilitate contact with the father by making it more extensive than the child-welfare service has currently decided, namely [an hour every month]. ... the court considers it necessary to regulate access by allowing visits [of four hours, twice monthly]. ... It has been explained to Mr Gnahoré that if the visits take place without disruption he will be able to apply to the children's judge for a review of the arrangements and that any incidents must be referred to the children's judge, who will review the case in the interest of the child.” 16. On 26 February 1993 an expert appointed by the investigating judge on 3 April 1992 had lodged a report. The Government quoted the following extract from that report in their memorial of 2 August 1999: “The scars to the abdomen, face, and the right forearm are of traumatic origin. The lesions to the abdomen and face appear to have been caused by a blunt or cutting instrument and the lesion to the right forearm by a cigarette burn. An examination of the child's mental state ... has not revealed any marked pathological symptoms but does suggest retarded development of adequate defence mechanisms to counter anxiety ... He does not present any of the characteristic psychological disorders seen in abused children. [On] examination, the cutaneous lesions presented by [the child] on his admission to hospital on 14 January 1992 are consistent in both form and evolution with the suspected abuse, but cannot constitute concrete evidence of abuse. On the other hand, the psychological after-effects which the child currently presents are directly related to the serious situation that has arisen as a result of severance from the mother figure which the child went through probably in his third year. Those psychological after-effects also demonstrate the incapacity of his father and brother to adopt with him a sufficiently stable maternal role ... The psychological after-effects by themselves justify his placement in a foster home, as it appears risky to force the father to assume the mother's role alone, when the characteristic nature of that role is continuous presence.” 17. On 26 May 1993 the investigating judge held that the applicant had no case to answer as there was insufficient evidence against him. 18. In a letter of 9 June 1993, the applicant's counsel requested the children's judge to hear further evidence from the applicant and to review the care order in the light of the decision to drop the prosecution. 19. By an order of 16 June 1993 the children's judge suspended the applicant's right to contact until 9 August 1993, on the following grounds: “[C.] is showing worrying behavioural disorders and severe anxiety at the prospect of seeing his father. A meeting with a psychiatrist has been arranged and it appears necessary to suspend the visits until that meeting has taken place. An order has been made for a psychiatric report on the child.” 20. On 15 September 1993 the children's judge renewed the order suspending contact, holding: “An order for a psychiatric report has been made and the report is due to be lodged on 30 September 1993. [The child] still opposes seeing his father. The father's right to contact shall remain suspended until the hearing that will take place once the expert's report has been lodged.” In their memorial of 2 August 1999, the Government quote the following extract from the psychiatric report lodged on 20 September 1993: On examination, [C.] does not display any organised pathology but signs of anxiety that appear to be related less to the father's absence than to the interiorised image of the father. It would be disturbing for the child for the father's right to contact to be reinstated at this point. We therefore consider it more prudent to maintain the status quo – placement in a foster home without visits from the father – for the coming eighteen months and to review the position at that juncture.” 21. In a judgment of 15 October 1993 the children's judge renewed the order for C.'s placement with the ASE for a period of eighteen months from 15 October 1993 (that is to say, until 15 April 1995). In their memorial of 2 August 1999, the Government quote the following extract from that judgment: “The psychiatric report confirms the need for [C.] to be protected from the invasive presence of his father ... Mr Gnahoré remains impervious to any advice concerning his son, whom he regards as his property and whom he affords no opportunity for independent development; ... these circumstances justify renewing [C.'s] placement with the ASE for eighteen months and suspending contact for that period.” 22. In a judgment of 24 January 1994 the Special Minors' Division of the Lyons Court of Appeal upheld the order renewing the child's placement with the ASE. With regard to the suspension of contact, it appointed an expert to assess whether, and, if appropriate, how, contact between the father and his son could take place and adjourned the hearing of the case “to the first available date after the expert's report is lodged”. The expert's report was lodged on 7 June 1994. The Government quoted the following extracts in their memorial of 2 August 1999: “ It is not desirable for [C.] to return home to the family environment with his father ... Intermittent contact between Mr Gnahoré and his son have a moderate relatively morbid impact on [C.]; the lack of contact is not a source of mental suffering ... Consequently, it is possible to propose a conditional lifting of the ban on contact and brief visits to be allowed every ten days at a neutral location. Allowing Mr Gnahoré to see [C.] will provide no solution unless accompanied by psychotherapeutic treatment for him. Admittedly, it seems highly unlikely that he will accept, but it must be impressed on him that all the experts agree that he is suffering from personality disorders. If this course of action is to have any chance of succeeding, it will be necessary for a committee to be set up composed of certain people in whom he has confidence ..., which will inform him of the prescribed treatment and ask him to follow it for the good of and out of love for [C.].” 23. On 4 July 1994 the Special Minors' Division of the Lyons Court of Appeal once again deferred a decision on contact and adjourned examination of the case to 10 October 1994, the applicant being invited in the meantime to envisage starting therapy, as advised by the expert. The Division added that contact remained suspended until the next hearing, although the applicant was authorised to make arrangements for the reimbursement of his expenses. 24. On 24 October 1994 the Special Minors' Division upheld all the provisions of the judgment of 15 October 1993. It noted that the applicant had failed to attend the hearing before it and had refused to cooperate with the ASE, as he had not responded to appointments he had been given so that arrangements for contact with his son could be made. It also noted that the child was relaxed in his new home. 25. On 18 April 1995 the children's judge renewed the order for C.'s placement with the ASE for two years. The reasoning set out in his judgment was as follows: “The domestic situation has remained largely unaltered over the past two years. Although he has been kept regularly informed by the ASE of his son's progress, Mr Gnahoré has failed to get in touch, despite being offered appointments. He recently went to [C.'s] former school where he made a scene and alarmed those present by his aggressiveness. He has not attended today's hearing but has sent a letter calling for his son's return. [C.] has been making positive progress with his foster parents. It is not possible to envisage [C.'s] returning home at present. Before any meetings between the father and the son can take place, Mr Gnahoré will need to contact the ASE so that the question can be explored.” 26. By an order of 12 July 1996 the children's judge dismissed an application by the applicant for the care order to be lifted and renewed the placement with the ASE for two years from that date. The order stipulated that the applicant's rights to ordinary contact and to residential contact would be conditional on “professional support for both father and child being provided”. The reasons for the order were as follows: “Mr Gnahoré seeks the return of his son, but did not attend the last hearing on 18 April 1995. He has been kept informed by the ASE of his son's progress but says that he has never received any documents and refuses all contact with the social worker responsible for [C.]. He claims that he is able to tend to all his son's needs and perceives the placement as having torn the family apart and as a means of persecuting him and his son's need as an extension of himself. He rejects any idea of treatment or of a third party's intervening between him and his son. [C.] is progressing well in his foster home but clams up when his father is mentioned and refuses to listen. The situation is currently in an impasse and it does not appear possible at present for contact between the father and his son to be envisaged without the presence of a mediator and a third party, and it will be necessary for [C.] to be accompanied and helped to find the strength to broach the subject of relations with his father.” 27. The applicant appealed to the Special Minors' Division of the Lyons Court of Appeal. At his request, the applicant's son was heard by a member of that Division on 2 November 1996. On 9 December 1996 the Court of Appeal delivered the following decision: “[C.] was placed into the care of the ASE after suspected abuse; the placement was also a consequence of the father's inability to tend to his material and educative needs. At the material time, Mr Gnahoré, who had been living on his own since [C.'s] mother's return to Africa in March 1989, was also wholly incapable of bringing up his then adolescent sons, [I.] and [Ch.], who had to be placed in care by the children's judge. The father's violent conduct towards the social workers during visits to his son led the children's judge to arrange for the visits to take place at a neutral location and subsequently to suspend them and to seek an informed opinion on whether contact between the father and the child was possible. The experts found that Mr Gnahoré was suffering from severe personality disorders and was incapable of considering his son as a separate being (Dr [Pe.]) or other than as a narcissistic object (Dr [C.]). In that connection, the appellant confirmed by his remarks at the hearing on 2 December that he was incapable of imagining that [C.] could lead a separate existence (he kept repeating: 'my son is dead'). Mr Gnahoré refuses to acknowledge that [C.] made a firm request at the hearing to be allowed to live with his foster parents 'all the time', though he also seeks contact with a father of whom he is fond. In these circumstances, returning the minor to his father would put his health and safety at risk and would be very damaging to his welfare. The decision to renew his placement will therefore be upheld. Although Mr Gnahoré rejects the whole idea of treatment or meetings with third parties, in order to offer the meetings with [C.], whom he has not seen for three years, 'a chance of success' (Dr [Pe.]), attempts should be made to arrange contact at a neutral location through a specialist counselling service. As it will take some time to make the arrangements, the first visit will be during the Christmas holidays ... The Court of Appeal ... upholds the decision of the court below regarding [C.'s] continued placement; holds that Mr Gnahoré shall be entitled to visit his son, [C.], at a neutral location and that there shall be an initial one-hour visit during the Christmas holidays followed by one-and-a-half-hour visits at fortnightly intervals until 31 March 1997; to that end, orders an inquiry and welfare counselling by a centre for educative action ... whose task will be to determine the arrangements (place, date and time) of the visits; orders that the centre for educative action will report to the Court of Appeal by 15 March 1997 on progress and may, in the event of serious incident, terminate the measure immediately, provided it informs the President of the Minors' Division without delay. ...” 28. On 30 December 1996 Mr Gnahoré lodged a notice of appeal on points of law with the registry of the Lyons Court of Appeal. On 9 January 1997 he made an application for legal aid to the Legal Aid Office of the Court of Cassation. In a decision of 2 October 1997, the Legal Aid Office accepted the applicant's eligibility for legal aid on the means test but dismissed his application on the ground that “no arguable ground of appeal on points of law [could] be made out against the impugned decision”. Mr Gnahoré exercised his right of appeal to the President of the Court of Cassation under section 23 of Law no. 91-647 of 10 July 1991 on legal aid, but his appeal was dismissed by an order of 8 December 1997 on the ground that “it [did] not appear from an examination of the evidence in the file that a ground of appeal on points of law [could] be argued with any real prospect of success”. On 14 May 1998 the President of the Court of Cassation dismissed the appeal as being out of time on the following ground: “The notice of the appeal on points of law does not set out any valid ground of appeal. Furthermore, the appellant has not sent a memorial containing valid grounds of appeal to the registry of the Court of Cassation within the statutory time-limit.” 29. In their memorial of 2 August 1999, the Government alleged that on 21 March 1997 the centre for educative action had sent to the Special Minor's Division of the Lyons Court of Appeal a record of the applicant's three visits to his son, in which it had concluded: “It does not appear desirable for the meetings between father and son to continue in these circumstances, since [C.] remains at risk when with his father, whose pathology makes it impossible for him to consider his son otherwise than as a part of himself, such that there is no room for the independent existence of this small boy.” 30. On 10 July 1998 the children's judge renewed the order placing C. in the care of the ASE for a period of two years starting on 12 July 1998. The judgment contained the following reasons: “... Mr Gnahoré continues to call for [C.'s] return ... He says that he finds their separation painful and regards it as unjustified and unlawful. He is unable to comprehend that renewed contact must take place gradually and does not consider that the children's judge has any right to take decisions concerning [C.]. [C.] is making positive progress in his foster home. He says that he is ready to meet his father once he is better. It is necessary to assess the feasibility of contact between father and son.” On the same day the children's judge ordered a new medical, psychological and psychiatric report on C. According to the Government, the report, which was lodged on 12 November 1998, concluded as follows (extract from the Government's memorial of 2 August 1999): “On medical examination, [C.'s] general health ... was seen to be good and his psychomotor development normal. [C.'s] mental development is normal. He will shortly be reaching adolescence and shows considerable interest in the Ivory Coast, consistent with the construction of his identity and the need to adhere to his biological origins. There is no sign of marked mental illness on examination. ... [C.] does not present any physical or mental disorders or disabilities likely to influence his behaviour. No special protection, assistance or therapeutic measures are required. However, in view of the history of mental suffering that has occurred concurrently with visits from his father and [C.'s] current genuine wish to see his father again, any new contact that takes place should be accompanied by enhanced psychological support to avert and treat new symptoms. There is no need for specialised treatment for the time being. There is no medical reason why contact should not take place. He is receiving a normal education which he is pursuing with success.” 31. The Government added that on 17 May 1999 the children's judge delegated to the ASE by way of a grant of power pursuant to Article 375-7 of the Civil Code such parental authority as would enable it to obtain a national identity card for C., on the ground that “Mr Gnahoré is not in touch with the ASE ...”. 32. On 2 December 1999 the children's judge sent the following letter to the applicant's lawyer: “... I acknowledge receipt of your letter of 18 November 1999 regarding the possibility of Mr Gnahoré visiting his son [C.]. In view of the very difficult background to this case, no visit can be arranged unless Mr Gnahoré first contacts the ASE ... who are responsible for [C.]. [C.] has not asked to see his father recently and may find a visit very perturbing. ...” 33. In January 2000 the Director of the Children's Service of the Villeurbanne Territorial Unit sent the following letter to the applicant: “I acknowledge receipt of your letter of 23 December 1999 and note what you say. I would remind you that [C.'s] file is still being handled by the Children's Service of the Villeurbanne Territorial Unit ... Mr [D.] remains the caseworker responsible for [C.] and I can, if you so wish, send you news of your son by letter. However, I regret to inform you that I am unable to grant your request to see [C.]. This is because it has never been possible to do any preparatory work with you, despite the efforts of members of this service, or to build relations with you without your resorting to violence, or making demands or threats. Furthermore, at the request of the Court of Appeal a review of the father/son relationship has been conducted by the COAE responsible for East Lyons. You saw [C.] in that connection once a month for six months and the same findings were reached, namely that: (i) it is impossible for you to re-establish a relationship with your son in his interest and in liaison with the children's service; (ii) you refuse to accept that you need treatment. Under these circumstances and in [C.'s] interest, I have no alternative but to stand by my decision ...” 34. The relevant provisions of the Civil Code are as follows: “If the health, safety or morals of an unemancipated minor are at risk, or if the conditions in which he or she is being brought up are highly unsatisfactory, a court order may be made for educative assistance measures on application by the father and mother, jointly or severally, the person or authority in whose care the child has been placed, the guardian, the child itself or by a representative of State Counsel's Office. The court may act on its own initiative in exceptional circumstances. ... The duration of the measure shall be determined by the court in its decision but shall not exceed two years if the assistance is to be provided by a service or an institution. The measure may be renewed by a reasoned decision.” “The children's judge shall have jurisdiction for all matters concerning educative assistance. The children's judge shall in all cases endeavour to obtain the family's agreement to the measure envisaged.” “Whenever possible, the minor shall remain in his or her present home. In such cases, the judge shall appoint a qualified person or a service for observation, education or rehabilitation in the home to provide the family with help and advice in order to surmount the material or psychological difficulties encountered. That person or service shall be responsible for monitoring the child's development and periodically reporting to the judge. The judge may also order that the child shall remain at home only if special obligations are complied with, such as regular attendance at an ordinary or specialised health or educational institution, or carrying on an occupational activity.” “Decisions concerning educative assistance may at any time be varied or set aside by the judge who delivered them, either on his or her own initiative or on application by the father and mother, jointly or severally, the person or authority in whose care the child has been placed, the guardian, the child itself or by a representative of State Counsel's Office.” “The father and mother of the child for whose benefit assistance has been ordered shall retain their parental authority over the child and shall be entitled to exercise all attributes of that authority that are not inconsistent with the application of the measure. For so long as an educative assistance measure is in force they shall not be entitled to emancipate the child without permission from the judge. If the child has had to be placed outside the family home, his or her parents shall retain the right to correspond with the child and to have contact. The judge shall decide on the arrangements and may even, if the interest of the child so demands, decide that the exercise of either or both of those rights shall be provisionally suspended. The judge may order that a placement for the child shall be sought in a location that will facilitate so far as possible contact with the parent or parents.”