Cases involving parent-child relationships must be handled quickly and with extreme care. The 10-year-long court process for parental custody of two minor children violated the right to family life.
R.V. and others v. Italy 18.07.2019 (no. 37748/13)
Parents’ inadequacy, parental care and foster family.
The applicant, following a complaint from a relative, found it unsuitable for bringing up two children aged just 1 and 3 years respectively. The procedures for taking care of children have been made long and complicated. Various solutions were implemented, mother-child placement in a supervised residential unit, custody assignment to the grandmother, assignment to a foster family while suspendig parents of the right to communicate with them. During that time, the State failed to update the expert’s report immediately.
The Court held that there has been a violation of Article 8 (right to family life) because in cases concerning the relationship between parent and child, the State has a duty to act swiftly and exercise extraordinary care, but the facts show that behavior of the authorities can not be reconciled with the requirements of exceptional diligence to be exercised in cases involving child welfare, because the placement process of children has lasted for 10 years is therefore incompatible with the requirement Article 8 .
The applicants are R.V., a dual French and Italian national, and her two sons, D. and T., Italian
nationals, born in 2002 and 2004. They live in Italy.
The case concerned child care measures in respect of D. and T. that had been kept in force for over
R.V. married S.M. and they had two sons: D. and T. In September 2005 S.M. and R. V.’s mother went
to the local health authority’s family advice and support centre, expressing concern about R.V.’s
recent behaviour and saying that she did not take adequate care of her children. Following an
application by the public prosecutor, in November 2005 the Youth Court temporarily placed the
children in the care of the local authorities.
R.V. and S.M. then decided to legally separate. In a hearing before the courts, R.V. asked for the
children to be placed with her and stated that she was prepared to be supervised by social services.
At the judge’s request, the social services assessed which would be the most appropriate solution
for the children’s care. They advised temporarily placing R.V. and the children in a supervised
residential unit (comunità), which is where they moved in December 2005.
They were placed with their paternal grandmother in 2006. However, in April 2007, a courtappointed psychologist issued a report finding that the children were experiencing psychological harm and that there was nobody in the children’s close family with adequate resources for an appropriate placement. The expert recommended that they be placed with a foster family without delay, and that all contact with the parents be supervised. The domestic courts immediately issued a decision, ordering the suspension of all contact between the parents and the children. In August 2007 the children were placed with a foster family. In December 2011, the Youth Court confirmed
the children’s placement with that family, referring to the findings of the court-appointed expert
R.V. contested the care measures with the domestic courts, in 2008 and 2014.
Relying on Article 8 (right to respect for private and family life), the applicants alleged that the child
care measures and their implementation had violated their rights.
THE DECISION OF THE COURT
The Court reiterates that the placement of a child in care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. When a considerable period of time has passed since the child was first placed in care, the child’s interest in not undergoing further de facto changes to its family situation may prevail over the parents’ interest in seeing the family reunited.
In addition, the Court has previously considered that decisions taken by courts in the field of child welfare may become irreversible. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences.
The Court further reiterates that, whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. In this connection, the Court may have regard to the length of the local authority’s decision-making process and any related judicial proceedings. Effective respect for family life requires that future relations between a parent and child be determined solely in the light of all relevant considerations, and not by the mere passage of time. If they are not, there will be a failure to respect their family life, and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8. In this connection, the Court has further clarified that in cases concerning a parent’s relationship with his or her child, there is a duty to act swiftly and exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter.
For the purposes of the present analysis, the Court finds it useful to recapitulate the care measures at issue. The children were placed in the care of the S. Municipality inNovember 2005, with a view to ensuring their temporary protective placement, for such time as necessary in order to carry out an assessment of the family situation. From this date onwards social services tried out several temporary placement solutions, including the children’s placement with grandparents and placementin a supervised residential unit with the mother . In May 2007 the initial care order was made more stringent, as the court confirmed the need toformally separate the children from the biological parents and place them with a family of alternative carers. The children were placed with the alternative carers in August 2007 . From this date onwards the care measure was coupled with restrictions on contact between the children and their biological parents. During certain periods of time all contact with the parents was suspended and during other periods contact was limited to sessions every month or every three weeks.
The Court in no way wishes to underestimate the complexity of the situation faced by domestic authorities and the challenges inherent in balancing the contradictory interests at stake in the present case. It also appreciates the complexity of the childcare procedures at issue, as stressed by the Government. However, the Court considers that three years – during which young children remained with the alternative foster family – to reach a court ruling rejecting an emergency application under interim measures does not appear to be a reasonable period .
The Court reiterates that in the context of the latter proceedings before the G. Youth Court another expert assessment was requested and was once again submitted after a considerable delay. The expert’s report was filed on 23 January 2010, approximately eleven months after the date on which it had been formally ordered by the court, notwithstanding the fact that the court had given the expert a ninety‑day time frame for submitting the report. . The Court notes that the assessment was carried out by the same independent expert who had dealt with the case previously. She was asked to submit a fresh opinion in a matter which was no doubt complex, but certainly not new to her. The delay must therefore be considered particularly long.
The Court observes that on 5 August 2014 the first applicant lodged another application with the G. Youth Court, once again seeking the revocation of the care order ). According to the information provided by the parties, at the time the Government were given notice of the case, that is in June 2016, almost two years after the application had been lodged, no judicial decision had been issued by the Youth Court. During this time, the Court highlights that the children remained with the alternative carers and contact limitations remained in place.
In view of all the above elements, the Court is not persuaded that the conduct of the domestic authorities may be reconciled with the requirements of expedition and“exceptional diligence” that have to be exercised in cases involving child welfare. The considerations in the foregoing paragraphs also reinforce the Court’s conclusion that the passage of time – fuelled by the extended time frames characterising the domestic decision-making process – was an influential factor in the determination of the relations between the first applicant and the children. From this perspective, the Government’s emphasis on the ultimately positive outcome for the children is not in itself sufficient to detract from the importance of speed and diligence in the decision-making process and preventing the passage of time from having an undue impact on the parent‑child relationship.
In view of the above, and in particular with regard to the various delays identified, the Court finds the decision‑making process, which resulted in the children’suninterrupted placement in care for over ten years, incompatible with the requirements of Article 8. There has accordingly been a violation of this provision of the Convention.
Just satisfaction: EUR 33,000 to the applicants jointly for non-pecuniary damage, and EUR 17,000 to
R.V. for costs and expensesechrcaselaw.com).