Reunion of a daughter and her father after his acquittal for domestic violence. The failure of the state to ensure reunification violated the right to respect for family life

JUDGMENT

Ηaddad v. Spain 18.06.2019   ( no. 16572/17)

see here  

SUMMARY

Parent’s right to exercise parental custody for his child without interruption.

The applicant, a Syrian national, was deprived of the communication and parental responsibility of his three minor children, by a court ruling, following the lawsuit filed by his wife against domestic violence. During the criminal proceedings, his children were placed in state institutions at the request of their mother. The applicant was acquitted, regained parental custody of his two sons, but he was unable to communicate with his daughter, who had already been given to a foster family without his consent.

The ECtHR unanimously ruled that the right to respect for family life was violated because the Spanish authorities did not make every effort to ensure the applicant’s right to reunite with his daughter and siblings.

PROVISION 

Article 8

PRINCIPAL FACTS

The applicant, Mr Wael Haddad, is a Syrian national who was born in 1976 and lives in Madrid.

In January 2012 Mr Haddad and his wife, a Spanish national, left Syria with their three minor children
because of the war and travelled to Spain. One month after their arrival Mr Haddad’s wife lodged a
criminal complaint against him for domestic violence. On 2 February 2012 a judge issued a
temporary protection order which included a criminal-law measure barring the husband from
approaching his wife and their three children and from communicating with them, and a civil-law
measure temporarily withdrawing Mr Haddad’s parental responsibility and access rights.

On 15 June 2012 the Madrid regional government declared the three children (aged nine, six and
one) legally abandoned and they were placed in residential facilities. Mr Haddad was not informed.
He was notified of the hearing to confirm the children’s guardianship by means of a notice published
in the Murcia official gazette and was also telephoned by a member of the child protection
department.

On 27 September 2013 the criminal court acquitted Mr Haddad on all the charges in the proceedings
against him and set aside the criminal and civil measures ordered by the judge on 2 February 2012.

On 11 February 2015 the Murcia first-instance court authorised the placement of Mr Haddad’s
daughter with a foster family with a view to her adoption. On 13 March 2015 Mr Haddad and his
wife lodged separate appeals. On 7 April 2016 the Murcia Audiencia Provincial dismissed the appeals
and upheld the decision.

On 26 February 2016 the regional government terminated the child protection department’s
supervision of Mr Haddad’s two sons and authorised their return to their father. Mr Haddad lodged
an amparo appeal with the Constitutional Court. He argued that the judicial decisions had prevented
his daughter from being reunited with the family owing to serious errors in the various reports by
the administrative authorities on which the domestic courts had based their reasoning. The
Constitutional Court declared the amparo appeal inadmissible.

THE DECISION OF THE COURT

Article 8

The Court conceded that, in the circumstances of the case, it was acceptable for Mr Haddad’s three
children to have been placed under administrative guardianship, as their own mother had
requested. However, the children had been separated from their father against their will, as criminal
proceedings were pending against him for domestic violence following a complaint by his wife. Mr
Haddad was no longer allowed to approach his children and had to remain at a certain distance from
them, without having any contact, for the duration of the proceedings. That situation was
particularly serious in view of his daughter’s age, just a year and a half when she was first placed
under administrative guardianship in Madrid.

The Court observed that at no time in the administrative proceedings had any consideration been
given to the young age of Mr Haddad’s daughter at the time he had become separated from his wife,
the pre-existing relationship between the child and her parents, the period of time since the
separation, or the ensuing consequences for all three children and for the child’s relationship with
her brothers.

The Court noted that Mr Haddad had already regained custody of his two sons and that he was
continuing his endeavours to recover custody of his minor daughter. It observed that Mr Haddad’s
educational and relational capacities in respect of his daughter had not been formally called into
question and that his two sons, also minors, were now living with him again. His daughter’s placement had been ordered following the mother’s request on account of very specific difficulties that the latter had been encountering at the relevant time, not taking into account the wishes of Mr Haddad.

The Court took the view that the Spanish administrative authorities should have considered other
less radical measures than pre-adoption foster care for the applicant’s minor daughter, and should
have taken into account the applicant’s requests once the criminal proceedings against him had
been terminated. The administrative authorities had merely reproduced the same decisions without
making new findings or assessing, on the basis of tangible evidence, the evolution of the
circumstances, thereby clearly showing their determination to place the child in pre-adoption foster
care.

The Court drew attention to its case-law to the effect that, under Article 8 of the Convention, a
parent was entitled to measures for the purpose of reuniting him with his child and the national
authorities were obliged to take such measures.

The competent authorities had therefore been responsible for the breakdown in contacts between
Mr Haddad and his daughter, at least since his acquittal, and they had failed in their positive
obligation to take measures to enable him to have regular contact with her. In the Court’s view, the
placement of a child should normally be considered as a temporary measure to be suspended as
soon as the situation so permitted. The Court thus concluded that the applicant’s final acquittal and
the lifting of the prohibition on any contact with his children did not seem to have been considered
by the judge; nor had the authorities’ attitude changed as a result of the acquittal. The procedure
should have been surrounded by appropriate safeguards to protect Mr Haddad’s rights and to
ensure that his interests were taken into account.

The Court thus found that the Spanish authorities had not made appropriate or sufficient efforts to
ensure respect for the applicant’s right to live with his daughter, together with her brothers, thereby
disregarding his right to respect for his private and family life as guaranteed by Article 8 of the
Convention.

Just satisfaction (Article 41)

The Court asked the domestic authorities to re-examine, in a timely manner, the situation of the
applicant and his minor daughter in the light of the present judgment and to take the appropriate
measures in the child’s best interests. It took the view that the most appropriate form of redress was
to ensure that the applicant’s situation was restored as far as possible to what it would have been
had the provisions of Article 8 of the Convention been respected.

Lastly, the Court noted that domestic law provided for the possibility of reviewing final decisions
which had been declared in breach of the Convention rights by a judgment of the Court, pursuant to
Articles 510 and 511 of the Code of Civil Procedure.(echrcaselaw.com).


ECHRCaseLaw

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