CASE OF S.H. v. ITALY
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
5. The applicant was born in 1984 and lives in Sacile. 6. The facts of the case as submitted by the parties may be summarised as follows. 7. The applicant is the mother of three children, R., P. and J., who were born in 2005, 2006 and 2008 respectively. 8. At the material time the applicant was living with the children’s father, was suffering from depression and was undergoing a pharmacological treatment. 9. In August 2009 the social services informed the Rome Youth Court (hereafter “the court”) that the children had been hospitalised several times following the accidental ingestion of medication, and emergency proceedings were commenced before the court. By decision of 11 August 2009 the court ordered the children’s removal from their family and their placement in an institution, and instructed the social services to draw up a support project for the children. 10. On 20 October 2009 the applicant and the children’s father were heard by the court. They admitted that owing to the applicant’s state of health and the side-effects of the medication she was taking to treat her depression they had had difficulties looking after the children. They affirmed, however, that they could take proper care of the children with the help of the social services and the children’s grandfather. The applicant pointed out that she was undergoing treatment and that the side-effects initially caused by the medication had ceased. Both parents requested that the social services put in place a support project so that the children could return home. 11. On 3 December 2009 the psychiatrist submitted her report on the applicant. The report stated that the latter was undergoing pharmacological treatment, that she was willing to have psychotherapy and to accept the assistance of the social services and that she had a very strong emotional bond with her children. On the same day the Integrated Working Group on Adoption (the “GIL”) submitted its report, pointing out that despite the family difficulties, the parents had reacted positively, had taken part in the meetings and were prepared to accept the support of the social services. Consequently, the GIL proposed returning the children to their parents and introducing a family support project. 12. By decision of 19 January 2010 the court, having regard to the expert reports and the fact that the paternal grandfather was available to help his son and the applicant to look after their children, ordered the children’s return to their parents. On 24 March 2010, however, the parents’ reunion with their children was interrupted and the children were once again removed from the family home on the grounds that the applicant had been hospitalised owing to an aggravation of her illness, that the father had left the family home and that the grandfather had fallen ill. The court established visiting rights for both parents as follows: for the applicant, one hour per fortnight, and for the children’s father, two hours per week. 13. In March 2010 the prosecutor requested the opening of a procedure for declaring the children available for adoption. 14. On 10 June 2010 the parents were heard by the court. The applicant submitted that she was undergoing treatment, that the children’s father was available to look after them and that they had therefore not been abandoned. The father emphasised that even if he was working he could take proper care of the children with his father’s help, and that he had recruited a home help. 15. In October 2010 the court ordered an expert assessment of the applicant’s and the children’s father’s capacity for exercising their parental role. On 13 January 2011 the expert submitted his report, which concluded: - that the father displayed no psychiatric illness and that despite his fragile personality he was capable of shouldering his responsibilities; - that the applicant suffered from a “borderline personality disorder which interfered, to a limited extent, with her ability to shoulder responsibilities linked to her role as a mother”; - that the children were hyperactive, largely as a result of the family’s difficulties. In his conclusions, the expert pointed out that both parents were willing to accept any intervention required to improve their relationship with their children, and he made the following proposals: extending the children’s placement in public care, introducing a programme of bringing the parents and the children together, and intensifying encounters. He also suggested that the situation of the family should be reassessed six months later. 16. By decision of 1 March 2011, however, the court declared the children available for adoption, and the meetings between the parents and the children were discontinued. In its reasoning, the court stated that no reassessment of the family’s situation was necessary in the present case. It highlighted the parents’ difficulties in exercising their parental role, as indicated by the expert, and referred to the statements of the Director of the institution to the effect that the applicant had “serious mental disorders”, the father “was unable to show affection and spent his time arguing with the welfare assistants” and the parents “were incapable of providing their children with the care and treatment which they needed”. Having regard to those facts, the court declared the children available for adoption. 17. The applicant and the children’s father appealed against that decision and requested a stay of execution. They submitted: – that the court had erroneously declared the children available for adoption in the absence of any “abandonment”, a precondition for such a declaration under Law No. 184 of 1983; – that the declaration of availability for adoption should only be used in the last resort and that in the present case it was unnecessary because their family difficulties, which stemmed, in particular, from the applicant’s illness, were temporary and could be overcome with the welfare assistants’ support. Finally, they emphasised that the court had not taken into account the January 2011 expert report ordering the establishment of a programme of support and gradual reunion of the children with their parents. 18. In July 2011 the court ordered that each child be placed in a different foster family. 19. By decision of 7 February 2012 the Rome Court of Appeal dismissed the applicant’s appeal and upheld the declaration of availability for adoption. The Court of Appeal observed that the competent authorities had expended the requisite efforts to provide support to the parents and prepare the children’s return to their family. However, the project had failed, which showed the parents’ incapacity for exercising their parental role and belied the temporary nature of the situation. With reference to the social services’ findings, the Court of Appeal emphasised that the failure of the project had had negative consequences for the children and that the declaration was geared to protecting their interest in being fostered in a family capable of properly caring for them, which their family of origin was incapable of doing owing to the mother’s state of health and the father’s difficulties. The Court of Appeal noted that there had been some positive developments in the situation, such as the mother’s realisation of her health problems and her determination to undergo treatment, as well as the father’s efforts to find resources in order to look after his children and the availability of the grandfather to help out. However, the Court of Appeal held that those factors were insufficient to assess the two parents’ capacities for exercising their parental responsibilities. Having regard to those factors, and with an eye to safeguarding the children’s interests, the Court of Appeal also confirmed their availability for adoption. 20. The applicant and the children’s father lodged an appeal on points of law. By judgment deposited in the registry on 22 January 2014, the Court of Cassation dismissed the applicant’s appeal on the grounds that: – the Court of Appeal had correctly assessed the existence of a situation of psychological abandonment of the children and the irreversibility of the parents’ incapacity for exercising their role, having regard to the failure of the first support project put in place by the social services; – the declaration of availability for adoption had duly taken into account the children’s interest in being fostered by a family capable of looking after them effectively. 21. In February 2014 the applicant requested the Rome Youth Court to cancel the declaration of the children’s availability for adoption (on the basis of section 21 of Law No. 184 of 1983). In support of her request, the applicant presented various medical documents attesting that her state of health had improved in the meantime, in order to prove that the conditions set out in section 8 of Law No. 184 of 1983 for issuing a declaration of availability for adoption has since lapsed. By a decision of 14 May 2014 the Rome Youth Court dismissed the applicant’s request. 22. The outcome of the adoption procedure concerning the children is unknown.