CASE OF E.P. v. ITALY
Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Marc Fischbach
7. The applicant has a young daughter, M.-A., who was born in 1981. 8. On 3 October 1988 the applicant and her daughter, who had lived in Greece since the latter’s birth, arrived in Rome by aeroplane. As soon as she had landed, the applicant consulted the airport medical service because her daughter had not been feeling well. The duty doctor found that the little girl was vomiting and had a temperature of 38º and, accordingly, had her admitted to hospital. 9. On 15 October 1988, the hospital psychiatric department applied to the Rome Youth Court to have M.-A. removed from her mother’s care and for an injunction on the mother visiting her until the complex medical and psychiatric state of the child, who did not speak Italian, had been clearly diagnosed. According to the doctor in charge of M.-A.’s case, the applicant had a clinical obsession with her daughter’s health. It had also been very difficult to assess the little girl’s psychological state because the applicant had constantly interfered with her treatment and medical examinations. The doctor stated lastly that the applicant had attempted to remove her daughter from the hospital in breach (he said) of recommendations already made by the court. However, there is no evidence that the court had previously been called upon to make any decision with respect to the applicant or her daughter. 10. On 22 October 1988 the Child Support Institute (Istituto provinciale per l’assistenza all’infanzia) for the province of Rome supplied the court with the information it had been able to obtain by interviewing the applicant, the hospital staff and the applicant’s brother, H.P., who had lived in Milan for a long time. According to the Institute, the evidence gathered showed that the applicant had had M.-A. hospitalised on several occasions, in particular in paediatric hospitals in Athens, Sofia and London, because she had believed the little girl to be seriously ill. The Institute also reported that during M.-A.’s last period in hospital in Athens, in the summer of 1988, the Athens Youth Court had been asked to issue an injunction forbidding the applicant to remove her daughter from the hospital and to open proceedings to have the little girl adopted. The applicant had, however, succeeded in smuggling her daughter out of the hospital and reaching Rome. The Institute stated, lastly, that M.-A. did not appear to be troubled by the separation from her mother, even though she asked for news of her. 11. In its final report, dated 25 October 1988, the psychiatric department of the Rome hospital made the following recommendations to the Rome Youth Court: (a) that M.-A. should be kept away from her mother; (b) that M.-A. should be discharged from hospital as soon as possible; (c) that she should be placed with a family in which the parents had an emotionally stable relationship; and (d) that she should be settled in a school and take part in social activities. 12. The hospital had formed the opinion that M.-A. had developed a pathological bond with her mother, a bond which met the needs of the mother rather than the child’s developmental requirements. The little girl had reacted to the separation from her mother with anxiety and depression but had shown herself capable of overcoming this by relying on other images of women. She had demonstrated great interest in other children of her age and an excellent capacity for socialisation. 13. On 26 October 1998 the Rome Youth Court ordered that M.-A. be temporarily placed with the applicant’s brother’s family. 14. In the meantime H.P. and his wife had persuaded the applicant to seek treatment and on 18 October 1988 she was admitted to the psychiatric department of a hospital in Melegnano, near Milan. According to a medical report dated 15 December 1988, she was suffering from chronic psychosis, the constitutive element of which was a form of vicarious hypochondria focused on her daughter. The applicant left the hospital on the date of the report and returned to Greece. 15. In an order of 16 February 1989 the Milan Youth Court, which had acquired jurisdiction over the case because of where the applicant’s brother’s family lived, found that M.-A.’s placement with that family could no longer continue because of a series of problems within it. The court decided, in consequence, to keep the child away from the applicant and to place her in the care of social services on the basis that she should be placed with another family as soon as possible. The court also ordered a comprehensive psychological report on the mother. Lastly, it ordered that proceedings under section 8 of Law no. 184 of 4 May 1983 (hereinafter “Law 184/83”) should be set in motion with a view to a declaration that M.-A. was available for adoption. Under that provision, “the Youth Court, may, even of its own motion, declare …. a minor available for adoption if he has been abandoned in the sense of being deprived of all emotional or material support from his parents or the members of his family responsible for providing such support (other than in temporary cases of force majeure)”. 16. In an order of 16 March 1989, the court suspended the applicant’s parental responsibility and ordered that there should for the time being be no contact between the little girl and her mother or the other members of her family. In view of the urgency of the matter, the court did not hear submissions from State Counsel or the applicant. It based its decision primarily on a report on M.-A.’s psychological health prepared by Milan University. According to that report, M.-A. was suffering from anxiety and depression together with an almost neurotic tendency to satisfy her immediate needs. Her perception of the image of her parents was problematic: that of her mother was difficult to identify and that of her father, whom she had never met, aroused fear and remained abstract. The report’s conclusion was that the little girl was suffering from serious emotional and relationship problems due to the pathological behaviour of her mother, who had for a long time been her sole source of stimulation. Noting the potential represented by the child’s will to develop emotionally in a positive way, the report recommended that she should be placed with an emotionally stable family, be given suitable psychological help and be integrated into a stimulating socio-scholastic environment. 17. On 9 May 1989 the applicant lodged her first application with the Milan Youth Court, seeking to have the order of 16 February 1989 revoked. She argued, inter alia, that her daughter had lived her whole life in Greece and that at the time at which she had been separated from her mother she had not even been able to speak or understand Italian. The applicant also pointed out that under Article 20 of the preliminary provisions of the Italian Civil Code, as it had stood at the time, the relationship between parent and child was governed by the law of the mother’s country if the father’s identity was not known. 18. On 22 May 1989 the court ordered the social services department in charge of M.-A.’s case to give an opinion on her suitability for adoption, emphasising that the matter was urgent. 19. In the meantime, M.-A.’s father had recognised her as his daughter. 20. On 30 June 1989 the Milan Youth Court declared M.-A. available for adoption after hearing submissions from, among others, the applicant, M.-A.’s maternal grandmother and H.P. The court held that the little girl had been abandoned within the meaning of section 8 of Law no. 184/83, given the mother’s situation and the fact that it was impossible to place the child with her maternal uncle’s family. It also held that no weight could be given to the late recognition of M.-A. by her natural father, who had never seen her and who did not know her first name. Lastly, on the question of whether Greek law applied, it held, following the case-law of the Court of Cassation, that it was sufficient for a child who had been abandoned to be within Italian territory for Italian law to apply. 21. The applicant lodged a second application, submitting, inter alia, that the report of 15 December 1988 on her psychiatric state had been based on an account of her medical history reconstructed primarily from information supplied by her sister-in-law, with whom she had had no contact before coming to Italy, and who could not therefore know what her life with her daughter in Greece had been like. Moreover, the court should have taken account of the fact that the applicant had had herself voluntarily admitted to Melegnano hospital because she was afraid of being separated from her daughter. She submitted lastly that it could not be said that M.-A. had been “abandoned” since she (the applicant) received an allowance and also owned an apartment in Athens which brought in rent. The applicant asked the court to order a report on her mental health and enclosed an expert report which she had had drawn up privately and which stated that separating a child from its mother could be justified only on exceptional grounds, which did not exist in the applicant’s case, and that certain symptoms of anxiety and depression in the applicant had been caused by the separation from her daughter. 22. In the meantime, State Counsel at the Athens Youth Court had informed the Italian authorities that, contrary to the information provided by the Child Support Institute of the province of Rome on 22 October 1988, the Athens court had never taken any action concerning the applicant or her daughter. 23. The first hearing in the case was held on 29 November 1989. A second hearing was scheduled for 21 February 1990 but was apparently adjourned because of a delay in M.-A.’s case file arriving from the Rome Youth Court. 24. At a hearing on 22 March 1990 the doctor who had been in charge of the applicant’s case at Melegnano hospital stated that he had obtained his information on the applicant’s recent past directly from her but that the general information about her life had been supplied by her sister-in-law. He said that the applicant’s sister-in-law had at first thought it desirable for the applicant to stay in hospital and only later, when the doctor had asked her to think of an alternative, had suggested that the applicant should return to Greece. The doctor stated lastly that his diagnosis of chronic psychosis had been based on the information provided by the sister-in-law and acknowledged that he had never asked the applicant if she had had other children or any abortions. 25. On 23 March and 2 July 1990 the Milan Youth Court again asked the Rome Youth Court to send it the little girl’s case file, emphasising the urgency of the matter. The Rome case file was finally sent to the Milan court on 27 July 1990. 26. The final hearing took place on 31 October 1990. M.-A.’s guardian ad litem (curatore speciale) applied to have the order of 30 June 1989 set aside on the grounds that the bench had been improperly composed. That application was allowed and the order in question annulled. 27. In an order of 22 November 1990, deposited with the court registry on 1 December and served on the applicant on 12 December of the same year, the court issued a fresh declaration that M.-A. was available for adoption. The court, which had not heard evidence from the child and whose decision reflected the submissions of State Counsel, based its ruling on the same grounds as those given in the annulled decision of 30 June 1989, namely, inter alia, the medical reports of 15 December 1988 and 14 March 1989. The court also noted the fact that M.-A.’s natural father intended to marry the applicant but without attributing any significance to it. 28. The applicant, who had meanwhile applied for the adoption process to be suspended, applied for an order setting aside that decision. She submitted, first, that it slavishly followed the reasoning set out in the first order and argued in particular that the diagnosis of her mental health made in December 1988 could not provide grounds for a decision reached two years later, given that a declaration of availability for adoption should be based on the circumstances existing at the time it was made. The applicant also declared her willingness to be supervised by social services so as to ensure a better upbringing for her daughter. She asked lastly for permission to see her daughter again, on neutral ground and in the presence of social workers, for M.-A. to give evidence and for an expert report on herself to be ordered. 29. The applicant also filed a number of expert reports by psychologists in private practice. One of them, by a forensic medical examiner specialising in psychiatry, stated that a diagnosis of “chronic” psychosis would have to be based on psychotic antecedents, of which there was no evidence in the records of the applicant, a trained nurse who had always practised her profession successfully. It also stated that the applicant’s concerns about her daughter’s health were based on real evidence and were not “delusions”. 30. There was indeed evidence that a number of doctors had in the past diagnosed M.-A. as having health problems. The case file contained: a certificate of 3 September 1986 from the medical faculty of Athens University certifying the existence of an unspecified medical problem; another certificate from the same faculty dated 12 December 1986 stating that the little girl's immune system was deficient and recommending that she should not be vaccinated, should avoid any contact with other children who might be carrying viruses and should not be sent to school; a certificate of 30 December 1986 from a doctor in private practice recommending regular medical and pharmaceutical treatment and a change of climate; a certificate of 2 September 1988 from another specialist in private practice diagnosing infections of the digestive and respiratory organs and prescribing the use of oxygen at home during attacks. 31. In March 1991 two expert reports ordered by the court were completed. In May of the same year evidence was taken from M.-A.’s grandfather and the applicant. 32. On 16 October 1991 the court took evidence from the applicant and ordered a psychological report on the little girl. 33. In January, April and May 1992 a number of lay and expert witnesses gave evidence (a hearing scheduled for 15 February 1992 was adjourned because the applicant’s counsel had had a road accident). 34. A hearing on 20 May 1992 was devoted to evidence from a number of witnesses called by the applicant, who also asked for a hearing to be scheduled to enable witnesses from Greece to testify. 35. A hearing scheduled for 21 October 1992 was adjourned because of the need to replace one of the members of the bench and also because the applicant had applied for an adjournment. The following hearing, scheduled for 4 November 1992, was also adjourned because the witnesses from Greece whom the applicant had called had failed to appear. The court was consequently obliged to issue rogatory letters. 36. On 9 December 1992 the applicant, noting that the final hearing had been adjourned to April 1993, complained that, in spite of her repeated requests, no meeting between her daughter and herself had been arranged and the court had taken no measures to enable her to explore the possibility of re-establishing a relationship with her daughter but had failed to respond to her requests or refused them. 37. On 23 December 1992 the court, following State Counsel’s recommendation, dismissed that complaint. 38. In a judgment of 16 July 1993 the Milan Youth Court dismissed the applicant’s request for the declaration of availability for adoption to be set aside. The court first examined the time taken to reach a decision at first instance. It found that the length of the proceedings had been caused by the applicant’s numerous requests for lay and expert witnesses to be called, to the large number of documents she had produced and her frequent changes of legal representative, as well as by the workload of the court. It pointed out, moreover, that it had not received the additional information requested from the Athens Youth Court until the final hearing. 39. As to the merits of the case, the court began by acknowledging the extremely complex nature of the case (which it described as one of the most difficult it had ever had to determine) and the difficulty of building an accurate picture of what the applicant and her daughter’s situation in Greece had really been. It noted that when M.-A. had last been in hospital in Greece, the department where she was a patient had informed the Athens Youth Court of her situation, with a view to possibly having her removed from the applicant’s care. The applicant had then smuggled her out of the hospital and left for Rome. Indeed, while M.-A. was a patient in the hospital, the doctors had had her transferred to the child psychology department, the children in which were usually destined for adoption. 40. The court emphasised that the report which it had commissioned on M.-A. had established that she had never had any serious medical problem until 1988, a finding certified by the hospitals to which she had been admitted (in Athens, London and Rome). The report had also stated that the little girl suffered from common childhood complaints which could be treated by ordinary medical methods and did not justify her mother’s obsessive health-care measures or the continual hospitalisations which the latter had made her undergo, frequently against medical advice. 41. The court placed particular emphasis on the fact that the report of 15 October 1988 from the Rome hospital referred to aspects of the relationship between the applicant and her daughter which were extremely similar to those noted just a few days earlier, on 30 September, by the doctor from the Athens hospital, aspects which had led the latter to notify State Counsel’s Office at the Athens Youth Court. It was clear, according to the court, that the doctor in Rome had not known of the identical step taken by his Greek colleague. Those two documents demonstrated the tragic conditions in which M.-A. had lived up to that time: isolated, without contact with other children of her age and trapped in the role of patient which, in reality, was satisfying the needs of her mother, with whom she had a symbiotic relationship. The tribunal found that the circumstances of the sudden departure for Rome were equally significant: the applicant had taken only two cases, had bought the airline tickets at the airport, had abandoned her job only a few months before retirement, had abandoned her flat and had taken M.-A. out of school, which she had recently started attending for the first time. The court considered that the explanation put forward by the applicant, who had stated that she had left for Italy in order to find her father – whose address she did not know and whom she had not seen since 1980 – was not convincing. Moreover, once in Rome the applicant had again attempted to discharge her daughter from hospital without permission when criticised for the way in which she treated her– as had also happened in Greece. 42. The court went on to observe that the little girl who had arrived in Italy pale, sad, with numerous decayed teeth and difficulty in walking – despite constant treatment from her mother for health problems which were really not serious – was now a happy, healthy little girl. Furthermore, a psychological report on the child showed that during her life in Greece she had felt like a prisoner in her home, where she was constantly being given injections, put on drips and treated with other medical apparatus and was taken to hospital against her will as soon as she felt in the slightest degree unwell. The report had also been able to establish that M.-A. had been happy to be placed with another family and had distanced herself from the memory of her mother, and that the idea of entering into contact with her again aroused fears in the child. 43. The court remarked, lastly, that the applicant, who had supplied it with a minute account of all the illnesses from which her daughter was allegedly suffering, had never told it about her physical characteristics, her personality or her preferences. Nor had the applicant at any point in the proceedings demonstrated a willingness to open certain of her attitudes towards her daughter up to discussion. In the face of this unwillingness to look at herself critically, all attempts to influence the convictions of the applicant, who had never been aware of having any psychological problems, had been in vain. Even though the applicant had spared no effort in relation to her daughter – albeit misguidedly – and even though her allegations as to the behaviour of the members of her family were not completely without foundation, she had not demonstrated an ability to remedy her psychological state so as to enable her to have renewed contact with her child. 44. The applicant appealed. She submitted, inter alia, that whenever M.-A. had been hospitalised it had always been for good reason and following medical diagnosis. She also emphasised that she had always been concerned for her daughter and her daughter’s upbringing. She submitted that there were a number of witnesses to confirm that she had had a good relationship with her daughter and that the little girl had been living in a completely normal environment. 45. The Milan Court of Appeal (Youth Division) dismissed the applicant’s appeal in a judgment of 2 June 1994, deposited with the court registry on 29 July 1994. The court of appeal placed emphasis on, inter alia, the importance of the fact that a doctor from the Athens hospital had sought to inform State Counsel’s Office at the local court of the seriousness of the little girl’s situation, and on the significant circumstance that an identical step had been taken by the doctor at the Rome hospital. The court also found that the expert reports which the applicant had commissioned could not diminish the weight of those prepared for the court, given the general nature of the contents of the former and their lack of specific observations. Nor had the testimony favourable to the applicant been such as to lead to a different conclusion from that set out in the thorough expert reports ordered by the court, since that testimony had concerned only limited contact with the applicant and her daughter and therefore did not go beyond appearances. The court of appeal held, lastly, that it was unnecessary and undesirable to hear evidence from M.-A. again as she had already been questioned at length by the court-appointed expert and that examination had shown that the little girl had already made her choice from a psychological point of view. 46. The applicant appealed to the Court of Cassation on a point of law. She submitted, inter alia, that, under Law no. 184/83, an adoption order was justified only when a child had been abandoned in the sense of being deprived of all emotional or material support; the fact of taking great care of the child’s health – on the basis of medical diagnoses, even ones later revealed to be mistaken – could not be a ground for such an order. The applicant also complained of the fact that the courts had never attempted to assess the manner in which her own situation and state of health had improved, something which, combined with the fact that M.-A. was older, could have justified an attempt to re-establish contact between herself and her daughter at a later stage, before any relationship between them had been finally destroyed. 47. In a judgment of 7 June 1995, deposited with the court registry on 24 October of that year, the applicant’s appeal was dismissed. The Court of Cassation observed, first, that it had consistently held that a situation of abandonment could arise as a result not only of a lack of material and emotional support, but also of parental behaviour that prejudiced the healthy, balanced development of the child’s personality. With regard to the applicant’s complaint that the courts had separated her from her daughter without first making any recommendation, either to the applicant or social services, as to how the situation could be remedied, the Court of Cassation emphasised that such a decision was a matter for the discretion of the courts concerned, which had deemed any such attempt vain in view of the chronic nature of the applicant’s illness. The court held, lastly, that the issue as to whether or not M.-A. should have given evidence was also a matter for the discretion of the tribunals of fact, so that it had no power to review it. 48. In 1996 the applicant’s daughter was finally adopted by her foster parents. According to information from the applicant, which the respondent Government have not disputed, the applicant has succeeded in having presents delivered to her. On 17 February 1999 M.-A. came of age.