The parent can not be able to take measures that could harm his/her child. The removal of parental rights from a schizophrenic mother.
S.S. v. Slovenia 30.10.2018 (no.40938/16)
Parental rights and schizophrenia. Removing parental rights from a mother suffering from schizophrenia and the then adoption of the child. According to the national courts, despite her psychological problems, there was no realistic chance that the applicant would take care of her daughter diligently. She complained that this measure was extreme, as it resulted in a complete cut off of mother and daughter relationships and discriminated her because of her mental illness. The ECtHR considered that the measure was justified by an overriding need relating to the best interests of the child. It held that the parent could not, under Article 8 of the ECHR, be able to take measures that could harm the child’s health and development.
No violation of the right to privacy and not breaching of the prohibition of discrimination.
The applicant, Ms S.S., is a Slovenian national who was born in 1979. She suffered from paranoid
schizophrenia. The case concerned the withdrawal of her parental rights and the putting up for
adoption of her fourth child.
All but one of her four children are either in foster care or adopted. The third child is living with his
father in France.
She gave birth to her fourth child, E., in 2010 in Slovenia. Aware of her history, social workers visited
her in hospital just after the birth. When staying with her mother in the following few weeks, she
was provided with various social services. However, one month after the birth she left E. with the
grandmother and went to France. Neither the grandmother nor the father was willing to look after
the baby, and the authorities considered her to be abandoned. She was placed in foster care and
eventually adopted in 2016.
The adoption was authorised following court proceedings, initiated by the welfare authorities,
finding that it was in E.’s best interests to withdraw the applicant’s parental rights. The case was
examined at three levels of jurisdiction, with the applicant being fully involved and assisted by a
lawyer. The courts based their decision in particular on a psychologist’s report concluding that,
despite treatment for her psychological problems, there was no realistic possibility of the applicant
caring for her daughter. Her understanding of the child’s needs was limited, and there was no
emotional connection between mother and child.
While those proceedings were ongoing the welfare authorities organised monitored contact
sessions. However, following the adoption, the courts ultimately dismissed the applicant’s
application for contact with E. in 2017, finding that contact would be traumatic for the child given
the applicant’s lack of empathy and negative attitude towards the adoptive parents. This decision was based on the opinion of a court-appointed expert and a social worker who had supervised
Relying in particular on Article 8 (right to respect for private and family life), the applicant
complained that the withdrawal of her parental rights had been an extreme measure because it had
resulted in her ties with her daughter being completely severed.
THE DECISION OF THE COURT
a) Domestic authorities’ efforts with respect to maintaining ties between the applicant and her child
The authorities had promptly responded to the applicant’s difficulties in relation to the birth of the child and there was no indication that they had failed to take the necessary measures to assist her prior to her leaving for France. Furthermore, there was nothing to indicate that the authorities had exercised their discretion improperly by promptly searching for suitable long-term care, or that their concerns for the child had not been genuine or reasonable.
As regards the contact sessions, there was no indication that the applicant, prior to January 2014, had ever been refused contact with the child, rather on the contrary. While the sessions often did not seem to have helped the applicant and her daughter form a bond, it did not appear to be in any way attributable to the welfare authorities or the foster parents, but mostly due to the applicant’s passive attitude and the child’s estrangement from her. Despite being in contact with her lawyer and claiming that she had been unable to have contact with her daughter since October 2014, the applicant, who had been found to have legal capacity to act, had instituted the proceedings concerning her contact rights only in May 2016, that was, around the time the child had been adopted. The domestic courts’ dismissal of her request for contact had been based on a report from a court-appointed expert who had concluded that, due to the applicant’s psychological problems, such as emotional unresponsiveness and a lack of empathy, and her negative attitude towards the adoptive parents, contact would be traumatic and harmful for the child. The applicant had not presented any arguments to call into question that finding.
b)Withdrawal of parental rights and subsequent adoption
Finding no realistic possibility of the applicant resuming care of the child, and having taken into account the negative impact the contact sessions had had on her and the lack of an emotional connection between them, the domestic courts had considered it to be in the child’s best interests to withdraw the applicant’s parental rights, a conclusion which had not been unreasonable given the circumstances. The applicant had been fully involved in the proceedings, she had been assisted by a lawyer, and had had her case examined at three levels of jurisdiction.
With respect to the applicant’s argument that her neglectful conduct in relation to her child had been caused by her mental illness, the domestic courts’ decisions had not been based on her psychiatric diagnosis, but on her consequent inability to take care of the child, which had been confirmed by all the expert reports produced in the proceedings. Furthermore, in balancing the competing interests, they had concluded that the child’s interest in being provided with permanent care and emotional stability had outweighed that of the applicant in retaining legal ties.
Moreover, the child had lived with the applicant only for the first three weeks of her life and they had not established any emotional ties during subsequent contact, a finding which had to have implications for the degree of protection to be afforded to the applicant’s right to respect for family life when assessing the necessity of the interference. Furthermore, the child had lived with the foster, now adoptive, family since she had been one month old and had established strong bonds with them. In view of there being little or no prospect of the biological family’s reunification, the child’s interest in fully integrating into her de facto family had therefore weighed particularly heavily in the balance when assessed against the applicant’s wish to retain legal ties with her. Finally, the disputed measure had not prevented the applicant from continuing to have a personal relationship with the child or cut the child off from her roots as she could have, in principle and despite the adoption, maintained contact with the child provided that they had been personally attached and such contact would have been in the child’s interests. The court decision not to resume contact between the child and the applicant had not been based on the fact of adoption, but on a concrete assessment of the applicant’s condition and whether contact with her would be in the child’s best interests.
Given the aforementioned, there had been such exceptional circumstances in the present case as to justify the withdrawal of the applicant’s parental rights and the measure had been motivated by an overriding requirement pertaining to the child’s best interests. Having regard to the positive steps that had been taken to assist the applicant and to the relevant and sufficient reasons adduced in support of the decision to deprive the applicant of her parental rights, there had been no violation of Article 8 of the Convention in the present case(echrcaselaw.com editing).