The best interest of the children overrides the contact rights of the father when there is a risk to their safety! Violation of the family life
JUDGMENT
Ι.Μ. and others v. Italy 10.11.2022 (app. no. 25426/20)
SUMMARY
The case concerned the allegation by the applicants (a mother and her two children) that the Italian
State had failed in its duty to protect and assist them during contact sessions with the children’s
father, a drug addict and alcoholic accused of ill-treatment and threatening behaviour during the
sessions.
The case also related to the decision of the domestic courts to suspend the mother’s parental
responsibility. The courts regarded her as a parent who was “hostile to contact with the [children’s]
father”, on the grounds that she had refused to take part in the sessions, citing a history of domestic
violence and safety concerns.
The Court found in particular that the sessions that had taken place since 2015 had upset the
children’s psychological and emotional balance, as they had been obliged to meet their father in an
environment where their protection was not guaranteed. Their best interest in not being compelled
to take part in sessions held in such conditions had thus been disregarded.
The Court also held that the domestic courts had failed to examine with care the situation of the
children’s mother and had decided to suspend her parental responsibility on the basis of her
allegedly hostile attitude to the contact sessions and to shared parenting with G.C., without taking
into consideration all the relevant factors in the case. The courts had not provided relevant and
sufficient reasons to justify their decision to suspend the first applicant’s parental responsibility
between May 2016 and May 2019.
The applicants are three Italian nationals (a mother and her two children) who were born in 1988,
2010 and 2013 respectively and live in Italy. The first applicant was acting on her own behalf and on
behalf of her children, who were born of her relationship with G.C.
In 2014 the first applicant left the family home with her children because of the violence to which
she was being subjected by G.C., a drug addict and alcoholic. The following day she lodged a criminal
complaint and took refuge in a centre for victims of violence, which informed the public prosecutor’s
office of the applicants’ state of distress. Later that year the public prosecutor found that the
situation of violence to which the children were exposed was sufficiently serious to warrant an urgent measure suspending G.C.’s parental responsibility and allowing him to meet them in a secure environment. The public prosecutor requested the opening of the relevant proceedings.
In 2015 the Youth Court noted that G.C. had not seen his children since July 2014 and gave him
permission to meet them once a week in a “strictly protected” environment on the premises of
Rome social services, with a psychologist present. Those contact sessions never took place owing to
a lack of resources, and the court was informed accordingly. The court then ordered that the
sessions be held in the presence of a psychologist in the shelter where the first applicant was
staying. However, the shelter, which lacked specialised staff and sufficient financial resources, stated
that no father-child contact sessions could be held there. In the meantime, the first applicant and
her children had moved in with her parents and she agreed to take the children to weekly secure
sessions in the municipality of M.R., about sixty kilometres from her home. However, the
municipality of M.R. informed the Youth Court that it did not have a suitable venue allowing sessions
to be held in a “strictly protected” environment. The sessions therefore took place without any form
of protective measures and the children witnessed G.C.’s contemptuous behaviour towards their
mother. Subsequent sessions were thus arranged with a social worker rather than a psychologist in
attendance. They were held in various places in the municipality, including the library, the main
square, a room in the town hall and the town market square. On several occasions social services
informed the Youth Court that G.C. had behaved inappropriately with his children, making
derogatory and offensive remarks to them about the first applicant.
At the end of 2015 the first applicant, who had found a job in a shop, informed social services that
she could not travel 120 kilometres to take her children to the contact sessions scheduled during the
end-of-year holidays, and requested that the sessions be organised in a secure environment. In May
2016, having been informed by the municipality of M.R. that the first applicant had not taken her
children to two sessions scheduled for January 2016, the Youth Court decided to suspend the
parental responsibility of both parents. It noted that the first applicant had opposed the contact
sessions.
In 2016, 2017 and 2018 the contact sessions continued to take place despite a number of reports
and notifications to the Youth Court by social services and the children’s guardian, referring to the
threat posed to the safety of the children and staff by G.C.’s aggressive behaviour. In April 2018
social services suspended the sessions pending the Youth Court’s decision. Subsequently, in
November 2018 the court – which had additionally been informed in March 2018 that G.C. had not
attended the addiction treatment centre since 25 October 2017 – upheld the suspension of contact
between the children and G.C.
In 2019 social services informed the Youth Court that G.C. was serving a six-year prison sentence for
drug-related offences committed between 1994 and 2018.
Subsequently, by a decision of 15 May 2019, the Youth Court restored the first applicant’s parental
responsibility and deprived G.C. of his parental responsibility. In December 2019 the Rome Court of
Appeal upheld that decision and found that through his aggressive, destructive and contemptuous
behaviour during contact sessions G.C. had failed in his duty to ensure the children’s healthy and
untroubled development. The Court of Appeal also noted that one of the children needed
specialised psychological treatment.
According to the most recent information available to the Court, the criminal proceedings instituted
against G.C. for ill-treatment have been pending since 2016.
THE DECISION OF THE COURT…
Article 8
The Court considered that the issues raised in the present case fell to be examined solely under
Article 8 of the Convention.
With regard to the children, the Court noted that despite the reports it had received, the Youth
Court did not intervene to suspend contact until November 2018. Throughout that time the children
had been obliged to meet their father in an unsettled environment that did not foster their peaceful
development, despite the court having been warned that G.C. was no longer following his drug
rehabilitation programme and that the criminal proceedings against him for ill-treatment were
pending. The Youth Court, which had also been informed that the children needed psychological
support, did not appear to have taken their welfare into account, especially as the contact sessions
exposed them to witnessing the violence committed against their mother and also to the violence
they suffered directly as a result of their father’s aggression. The Court failed to understand why the
Youth Court, which as far back as 2015 had received reports that had been reiterated in the years
that followed, had decided to continue with the contact sessions even though the children’s wellbeing and safety were not guaranteed. The court had not at any stage assessed the risk facing the children and had not weighed up the competing interests. In particular, it did not appear from the reasoning of its decisions that considerations relating to the children’s best interests were deemed
to take precedence over G.C.’s interest in maintaining contact with them and continuing with the
sessions.
In the Court’s view, the contact sessions held since 2015, which had been held initially in conditions
that did not comply with the Youth Court’s decision, and subsequently in a manner that did not
provide a protective environment for the children, had upset the children’s psychological and
emotional balance. That fact had been pointed out by the social services, which had repeatedly
stressed the need for the children to receive psychological support. The Court also noted the Rome
Court of Appeal’s finding that G.C., through his aggressive, destructive and contemptuous behaviour
during the sessions, had failed in his duty to ensure the children’s healthy and untroubled
development. Accordingly, it held that the children had been forced since 2015 to meet G.C. in
conditions that did not provide a protective environment and that, despite the authorities’ efforts to maintain the contact between them and G.C., their best interest in not being compelled to meet in such conditions had been disregarded. There had therefore been a violation of Article 8 of the Convention in respect of both children.
With regard to the children’s mother, the Court considered that the decisions of the domestic
courts suspending her parental responsibility had not taken into account the difficulties surrounding
the contact sessions and the unsafe conditions highlighted on several occasions by the various actors
involved. No account had been taken of the situation of violence experienced by the first applicant
and her children, or of the criminal proceedings pending against G.C. for ill-treatment. The Court also
noted that in its report on Italy, GREVIO2 had stressed that the safety of the non-violent parent and
the children must be a central factor when deciding on the best interests of the child in relation to
custody and visitation arrangements. GREVIO had also observed that the domestic courts did not
take account of Article 31 of the Istanbul Convention. The Court shared GREVIO’s concerns about the
existence of a widespread practice on the part of the civil courts whereby women who cited the
issue of domestic violence as a reason for not attending contact sessions between their children and
their former partner, and not agreeing to shared custody or visitation rights, were regarded as
“uncooperative” parents and therefore as “unfit mothers” deserving of sanctions.
In the Court’s view, the domestic courts had failed to examine the first applicant’s situation with
care and had decided to suspend her parental responsibility on the basis of her allegedly hostile
attitude to contact and to shared parenting with G.C., without taking into consideration all the
relevant factors in the case. Hence, the Court found that the Youth Court and the Court of Appeal
had not provided relevant and sufficient reasons to justify their decision to suspend the first
applicant’s parental responsibility between May 2016 and May 2019. There had therefore been a
violation of Article 8 of the Convention in respect of the children’s mother.
Just satisfaction (Article 41)
The Court held that Italy was to pay the first applicant’s children 7,000 euros (EUR) jointly in respect
of non-pecuniary damage. It held that the finding of a violation constituted in itself sufficient just
satisfaction for the damage sustained by the first applicant.
