A.D. v. PORTUGAL
Inadmissible
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
1. The applicant, Mr A.D., is a Portuguese national who was born in 1966 and lives in Porto. On 10 August 2017 the Court decided of its own motion to grant the applicant anonymity (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr H.V. de Carvalho, a lawyer practising in Porto. 3. The applicant’s daughter, C.H., was born on 25 March 2014. C.H.’s mother, L.G., was not living with the applicant. 4. On an unknown date in May 2014 the applicant took L.G. and C.H. to a temporary accommodation centre (Centro de Acolhimento temporário – CAT) in Campo Lindo because he could not afford to house them. 5. On an unspecified date L.G. left the centre. 6. On 18 June 2014 an oral hearing took place before the Porto Family Court (domestic proceedings no. 1/1.3TBCDV-A). During the hearing, the applicant declared that he would agree to having C.H. placed in the care of an institution, since he was unable to provide the necessary conditions in which to raise her. L.G. also agreed with the measure of institutional care and expressed her consent to C.H. staying in the care of the applicant at a later stage because she did not have the means to take care of her. Following those statements, the judge of the Porto Family Court decided to apply a provisional measure, consisting of placing C.H. in institutional care. 7. At the conclusion of the hearing, the applicant, L.G. and two representatives of the CAT signed an agreement on the raising and protection (acordo de promoção e proteção) of C.H. Under the agreement, C.H. was to be placed in the temporary care of the CAT of Campo Lindo for six months and her parents could visit her in accordance with the rules set by the centre. The agreement was signed by the judge. 8. On 20 January 2016 the applicant was sent for psychiatric and psychological assessments. The relevant expert reports, dated 16 March 2016 and 18 April 2016, were received by the Family Court of Porto on 22 March 2016 and 20 April 2016. The report of 16 March 2016 of the psychiatric expert concluded that the applicant had the capacity to exercise a parental role. The report of 18 April 2016 of the psychological expert reached the opposite conclusion on the ground that by concentring excessively in his own needs, the applicant lacked the capacity to understand the needs of his daughter. On 27 May 2016 the psychiatric expert sent to the court a clarification note. Referring to a warrant issued by the German authorities which indicated, inter alia, that the applicant had been convicted to a term of three years and five months’ imprisonment for sexual assault and bodily harm, the expert assumed that the applicant had a personality “with psychopathic features”, which undermined his capacity to exercise a parental role. 9. On 13 July 2016, the CAT sent the court a social report concerning the situation of C.H. in the centre. The report’s conclusion was that C.H. should be referred for adoption, given that her mother had stopped visiting her two years previously and the applicant had not taken any concrete action aimed at assuming his responsibilities towards her. 10. On 11 October 2016, the Multidisciplinary Advisory Team (Equipa Multidisciplinar de Assessoria ao Tribunal – EMAT) of Aveiro sent the court a report about an interview that had taken place with a brother of the applicant. According to this report, the brother of the applicant had stated that he did not know about the birth of C.H. and that he did not have the means to take her into his care. He had also mentioned that he had had no news of another brother for many years and that he did not recommend that C.H. be placed in the care of her father, without specifying the reason. 11. In October 2016 the CAT decided to reduce the applicant’s authorised visits from two to one a week, owing to his lack of initiative in determining how he could play a role (encontrar um projeto de vida) in his daughter’s future. 12. On 25 October 2016 a lawyer appointed to represent the applicant applied to the Family Court, stating that he had not been contacted by the applicant. He explained that on 13 September 2016 he had sent the applicant a registered letter which had been returned. On 13 October 2016 he had sent two more letters, one registered and the other one not registered, to which he was still waiting for an answer. 13. On 6 December 2016 the Family Court of Porto held an adversarial hearing (debate judicial). The applicant as well as three witnesses, namely an officer of the EMAT, a social worker from the Campo Lindo CAT and the director of the Campo Lindo CAT were heard by the court. 14. By a judgment of 6 December 2016, the Porto Family Court ordered that C.H. be taken into care with a view to adoption, revoked the applicant’s parental responsibility and forbade all contacts between him and C.H., pursuant to Articles 1978 and 1978-A of the Civil Code. Relying on the witnesses’ statements and on the conclusion of a psychiatric report dated 27 May 2016, the court considered the following as relevant established facts: “... 5. L.G. stopped visiting C.H. in September 2014 ... 6. L.G. has not tried to receive, in any way, news concerning C.H. ... 7. No other family member has ever tried to visit C.H. ... 11. The father [applicant] was always present for the visits, twice per week, except for the period of one month in October 2015 in which he did not visit C.H. ... 13. [The father] lives away from his family (vive afastado da família). 14. Except during the hearing, the father has never expressed the will to care for C.H. 15. Although he has mentioned some family members and friends that could care for C.H., [the father] has never introduced any of them. 16. He has only indicated his willingness to find someone to take care of his child when confronted by [staff of the centre]. 17. Since last October [October 2016] the father’s visits occur once per week, by a decision of the accommodation centre based on the fact that he has not defined his role in his daughter’s upbringing (não se assumir como projecto de vida para a filha). 18. The child does not ask about her father when she is not with him. 19. She calls him “father” and the visits are not problematic. 20. The visits are playful and C.H. identifies her father as someone to play with. 21. C.H. does not show any signs of sadness when her father does not visit or when he leaves. 22. At the present date, the father intends to define his role in his daughter’s upbringing, requesting 6 more months to organise it, namely in economic terms, in order to execute that project. 23. The father has ‘a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role’. ...” 15. The court further considered that, in accordance with Article 1978 § 2 of the Civil Code, the best interests of the child should prevail over the parents’ interests as well as her integration in her biological family. However, as far as the mother, L.G., was concerned, it found that the conditions of paragraph 1 (e) of Article 1978 of the Civil Code had been fulfilled, since she had not contacted C.H., nor tried to do so, for a period of over two years. 16. Concerning the applicant, the court, relying on the established facts, considered that: - he had not undertaken any concrete measures to find an alternative to the institutional care; - he had never taken the initiative of defining his role (encontrar um projeto de vida) in C.H.’s upbringing; - C.H. did not have an emotional bond with her father, considering him as someone with whom to play, and never asked about him; and - the father’s attitude during the proceedings had consisted of repeatedly requesting time to find a solution for his daughter’s upbringing but he never came out with one. 17. The Porto Family Court also emphasised that there was no option for a member of the extended family to take C.H. into their care. It considered that there were no perspectives of any change in C.H.’s situation within a short period of time and that six months in the life of a three-year-old child was a long time. 18. Lastly, the Porto Family Court relied on the conclusion of the psychiatric expert report of 27 May 2016, in which it had been stated that the father’s personality was characterised by features that undermined the exercise of a parental role. The domestic court thus concluded that the conditions of paragraph 1 (d) of Article 1978 of the Civil Code had been fulfilled with regard to the applicant. 19. On 16 December 2016 the applicant appealed against the first-instance decision to the Porto Court of Appeal. He argued that the Porto Family Court should not have concluded that there was no emotional tie between himself and C.H., because it was in contradiction with other established facts and with the witnesses’ statements. The applicant further argued that the court should not have found it established that he had made no efforts to create the necessary conditions in which to raise C.H. because the witnesses’ statements had indicated the opposite; the applicant claimed that he had made numerous efforts to change his living conditions. In addition, the applicant contested established fact no. 23, that he had “a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role”. He claimed that the court’s reasoning was not clear with regard to the reasons supporting that established fact. According to the applicant’s allegations, a first report dated 20 January 2016 had considered that “the applicant did not have any psychiatric illness” and that he “was aware of the specific needs of children in different development stages and that he had the mental and emotional abilities to undertake the role of a father figure”. In the applicant’s view, the Family Porto Court had not provided reasons for its decision to give more weight to the report of 27 May 2016 than to the one of 20 January 2016. Lastly, the applicant argued that the requirements to make a decision on placing his child for adoption, in particular those of Article 1978 § 1 (d), were not applicable to him. In his view, the only element he lacked in order to raise C.H. was a better financial situation. 20. On 4 January 2017 the Porto Family Court found the appeal admissible and ordered that the case file be sent to the Porto Court of Appeal. In its decision, it maintained the suspension of contacts between the applicant and C.H. 21. On 24 January 2017 the Porto Court of Appeal dismissed the applicant’s appeal and upheld the Family Court’s judgment. After examining the evidence produced at first instance, it confirmed the facts that had been considered established. 22. The Porto Court of Appeal found that it resulted from the witnesses’ statements that C.H. did not regard the applicant as her father, but as someone with whom to play. Regarding the applicant’s efforts to improve his financial situation and to define his role in his daughter’s upbringing, the Appeal Court laid emphasis on the fact that he had not found any solution, regardless of the effort he had dedicated to doing so. 23. Concerning the psychiatric expert reports, the Court of Appeal referred to the fact that the report of 27 May 2016 had been requested with the intention of receiving clarifications, in the light of a warrant issued by the German authorities which had been submitted to the proceedings on 4 December 2015. The warrant indicated that the applicant had been convicted for sexual assault and bodily harm (agressão sexual em concurso com lesão corporal dolosa) and sentenced to three years and five months’ imprisonment. He had also lost the possibility of holding public office in Germany or being elected until 12 March 2017 and had been banned from employing, supervising, instructing and training young persons. 24. The court concluded that the two psychiatric reports were not contradictory, as both mentioned that the applicant did not have a psychiatric illness; the report of 27 May 2016 only added to that of 20 January 2016 that the applicant had a “personality with psychopathic features”. 25. The Appeal Court considered that measures capable of integrating a child in his or her biological family should prevail. If the biological family could not fulfil its duties to take care of the child, then adoption should be considered. In this connection, the Appeal Court focused its reasoning on the family situation. 26. Regarding L.G., the Court of Appeal noted that she had been a victim of sexual abuse and physical violence during her life and that she had attempted suicide several times. It also noted that she was in a fragile financial situation. 27. Looking at the applicant’s past, the court noted that his life had been characterised by instability, without any known emotional ties. It also noted that he was unemployed, was a beneficiary of the minimum income allowance (Rendimento Social de Inserção) and was living in a rented room. 28. Furthermore, the court found that the applicant did not have the competence, maturity or lifestyle necessary to create a favourable environment in which to raise a child. The court expressed understanding of the applicant’s affection for C.H. and his disappointment with the current situation, but emphasised that the child’s developmental needs should prevail. 29. On an unknown date the applicant sought leave to appeal to the Supreme Court of Justice. He submitted a request to lodge an ordinary appeal under Article 671 of the Code of Civil Procedure or, alternatively, an exceptional appeal (recurso de revista excecional) under Article 672 of the Code of Civil Procedure. 30. On 14 March 2017 the Porto Court of Appeal declared the appeal inadmissible on the grounds that decisions adopted on grounds of “suitability or appropriateness” (conveniência ou oportunidade) were not amenable to appeal before the Supreme Court of Justice. 31. On an unknown date the applicant challenged that decision before the Supreme Court of Justice. 32. On 11 May 2017 the Supreme Court of Justice declared the appeal inadmissible on the grounds that the Appeal Court had fully upheld the first-instance decision (dupla conforme). It further considered that the applicant had not submitted clear arguments that would justify an exceptional appeal. 33. Following a request from the applicant made in a letter of 30 July 2017, on 10 August 2017 the Court granted an interim measure pursuant to Rule 39 of the Rules of Court, indicating to the Government that the adoption of the applicant’s child should be stayed and his contacts with his child reinstated until the end of the proceedings before the Court. 34. On 23 August 2017 the Government contested the Court’s decision concerning the applicant’ 35. Following a request for information, on 12 September 2017 the Government submitted relevant case-file documents in order to contest the interim measure that had been applied. 36. The relevant provisions of the Civil Code, as in force at the relevant time, read as follows: Placement with a view to adoption “1. In the context of promotion and protection proceedings, the court may place a child into care with a view to future adoption if the emotional ties characteristic of a parent-child relationship do not exist or have been seriously undermined, subject to any of the following circumstances: ... d) if the parents, by a wilful act or omission, even if for a manifest inability due to reasons of mental illness, seriously endanger the safety, health, upbringing, education or development of the child; e) if the parents of a child taken into care by a person, an institution or a family have revealed a manifest lack of interest for their child in such a way that the quality and continuity of those ties are compromised for a period of at least three months preceding the request for placement in care. 2. The court shall take into consideration primarily the rights and interests of the child when assessing the above-mentioned circumstances. 3. A child is considered to be in danger if any of the circumstances indicated in the legislation on the protection and promotion of the rights of children prevail.” Effects of judicial placement ... in an institution with a view to adoption “Once placement ... in an institution has been ordered with a view to adoption, parental responsibility is withdrawn from the parents.”