Taking of children into care
THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 56. The applicant alleged that she had been deprived of all contact with her daughter and separated from her without valid reason. She maintained that the administrative authorities had decided to place her daughter in pre ‑ adoption care before the domestic courts had even ruled on whether she had been abandoned. She relied on Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” ... B. Merits 1. The parties' submissions (a) The applicant 64. The applicant contested the reasons given by the administrative authorities for taking her child away from her. She submitted that she had always worked and that she and her partner had sufficient income to meet her daughter's needs. With regard to her daughter's health, the applicant submitted that since September 2006 at least, the administrative authorities had known that G. had atopic seborrhoeic dermatitis (see paragraph 11 above); she and her two other children also had very dry skin in spite of treatment with various creams. In her view, therefore, the authorities' acceptance of that argument in approving G.'s placement with a foster family had been spurious. The applicant also furnished a vaccination certificate showing that G.'s vaccinations were up to date. As to her two sons, the applicant referred to the information set out at paragraph 7 above and denied that she had abandoned them. With regard to her conduct on her visits to the Granada children's home, as described in the decision of 5 October 2005, the applicant noted that even if the description were accurate – which she denied – it was of no relevance, since the child had in any case been in the Loja children's home (58 km from Granada) since 13 September 2005. Lastly, she asserted that the undiagnosed mental illness attributed to her was non-existent, referring in that regard to the report of 18 December 2009 which she had submitted in the domestic proceedings (see paragraph 40 above). In view of the foregoing, the applicant submitted that some of the administrative officials had been biased in favour of separating her from her daughter and even taking her unborn child from her. Her feelings of despair, powerlessness and anxiety were therefore understandable. Even assuming that problems had been observed in the way in which she was bringing up her child, the applicant took the view that the administrative authorities should have assisted her in overcoming them. 65. In the applicant's view, the administrative authorities had unjustly deprived her of all contact with her daughter, attempting to sever the ties between them. She further complained that the domestic courts had refused to examine the irregularities in the administrative proceedings, and pointed out that the prosecutor responsible for minors had supported her appeals. (b) The Government 66. The Government conceded that the right of parents not to be separated from their children, unless this was justified in the child's interests, formed part of the right to respect for private and family life. They cited in that connection the judgment in K.A.B. v. Spain (no. 59819/08, 10 April 2012, §§ 95-96). They further observed that the Court's task was not to take the place of the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. They referred in that regard to the case-law set forth in paragraph 71 below. 67. The Government noted that, having become aware of the child's situation, the administrative authorities had requested the courts to declare her to have been abandoned. Referring to the first-instance judgment of 18 May 2007, the relevant parts of which are set out at paragraph 30 above, they submitted that the administrative authorities had not taken that decision in an arbitrary manner or without justification. The Government observed that the administrative inquiries had shown that G.'s mother was not in a position to look after her. The possibility of placing the child in foster care within the extended family, which had at first been considered, had subsequently been rejected because the applicant's great-uncle was already overburdened. In the absence of any other options the administrative authorities had taken the decision to place the child with a foster family, a decision that had subsequently been endorsed by the courts. The mother had been represented by a lawyer throughout the judicial proceedings and her testimony had been taken into consideration, as had the evidence that had been adduced. The facts had been examined by the domestic courts in a completely non-arbitrary manner and all the decisions had been duly accompanied by reasons. In the Government's view, the child's abandonment had been genuine and had warranted the intervention of the administrative authorities, a fact subsequently acknowledged by the domestic courts. That situation had been unchanged when the applicant's appeal against her daughter's placement had been examined. 2. The Court's assessment 68. The Court reiterates that the enjoyment by parent and child of each other's company constitutes a fundamental element of family life (see Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999 ‑ VI, and Saleck Bardi v. Spain, no. 66167/09, § 50, 24 May 2011, § 49). (a) General principles concerning the positive obligations of the respondent State under Article 8 of the Convention 69. As the Court has repeatedly held, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. While a decision by the competent authority resulting in a child being taken into care constitutes interference with a parent's right to respect for his or her family life (see W. v. the United Kingdom, 8 July 1987, § 59, Series A no. 121), the positive obligations inherent in the right to effective respect for private life may involve the adoption of measures even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Mincheva v. Bulgaria, no. 21558/03, § 81, 2 September 2010). In both cases, regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see Saleck Bardi, cited above, § 50, and K.A.B. v. Spain, cited above, § 95). 70. The Court reaffirms the principle, well-established in its case-law, according to which the Convention is intended to guarantee rights that are practical and effective (see, mutatis mutandis, Artico v. Italy, § 33, Series A no. 37). It reiterates that its task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. 71. The Court takes into consideration the fact that it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII). It has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, Eriksson v. Sweden, 22 June 1989, § 71, Series A no. 156, and Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250). Taking a child into care should normally regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see K. and T. v. Finland [GC], no. 25702/94, § 178, ECHR 2001 ‑ VII). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent 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. Furthermore, the positive obligations are not confined to ensuring that children can rejoin their parents or have contact with them, but also extend to all the preparatory steps to be taken to that end (see, mutatis mutandis, Kosmopoulou v. Grece, no. 60457/00, § 45, 5 February 2004, and Amanalachioai v. Romania, no. 4023/04, § 95, 26 May 2009). It is the Court's task to assess whether the Spanish authorities acted in breach of their positive obligations under Article 8 of the Convention (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002 ‑ I; P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002-VI; Evans v. the United Kingdom [GC], no. 6339/05, § 76, ECHR 2007 ‑ IV; and K.A.B. v. Spain, cited above, § 98). 72. Each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it under Article 8 of the Convention, and it is for the Court to ascertain whether the domestic authorities, in applying and interpreting the applicable legal provisions, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 141, ECHR 2010, and K.A.B. v. Spain, cited above, § 115). (b) Application of these principles in the present case 73. The Court notes that on 23 August 2005 the applicant's daughter, G., who was aged three years and ten months at the time, was separated from her mother, who had visited the Motril social services department with her partner and their daughter to request assistance because of their difficult financial circumstances. Two days later, on 25 August 2005, the provincial office made a provisional finding that the child had been abandoned. On 30 August 2005 the applicant was informed that the provincial office was assuming guardianship of her daughter and that the latter was being placed in the Nuestra Señora del Pilar children's home in Granada. The Court observes that the child was transferred to a children's home in Loja (see paragraph 13 above) without the applicant being informed and without any response being given to the applicant's requests for her daughter to be transferred to a home closer to where she lived. It notes that the applicant saw her daughter for the last time on 27 September 2005. 74. In a case such as the present one the courts are faced with interests that are often difficult to reconcile, namely the interests of the child and those of its mother. In the pursuit of a balance between these different interests, the child's best interests must always be a paramount consideration (see Moretti and Benedetti, no. 16318/07, § 67, 27 April 2010). 75. In the instant case the Court observes that the administrative authorities, in finding that the child had been abandoned, cited the lack of resources of the applicant, who was experiencing extreme financial hardship (see paragraph 9 above). On the basis of these considerations, on 25 August 2005, the provincial office initiated an administrative procedure culminating in a provisional declaration that G. had been legally abandoned. The child was placed under the guardianship of the administrative authorities and placed in a children's home. According to the information available to the Court, the decision to place the child in the home, and the subsequent decisions to withdraw the applicant's contact rights once and for all and transfer the child to another home, were taken on the basis of the report of 4 October 2005 by the social worker A.L.N. (see paragraph 16 above). That report referred to the inappropriate and disrespectful attitude of the applicant, who had been taken to hospital on learning that her daughter was to be taken away from her because of her situation of extreme financial hardship. A.L.N. stated in her report that the applicant was seen on a daily basis in the vicinity of the home where her daughter was staying. The social worker proposed suspending the provisional supervised contact arrangements that had been put in place, and her proposal was acted upon. The applicant was not informed of that measure nor was she told to which home her daughter had been transferred. A.L.N. added that the mother had been given a sum of money. 76. The Court observes that the decision adopted by the provincial office on 1 February 2006 (see paragraph 22 above), endorsing the finding that the child had been abandoned, reiterated word for word the arguments set out in its previous decision of 25 August 2005 and in the report of 4 October 2005 by the social worker A.L.N. The decision stated in that regard that the mother “[had] displayed no interest, either orally or in writing, in the child's well-being”. However, the Court notes that it is not disputed that the applicant went to the Granada children's home on at least seventeen occasions, despite the fact that the home was some distance from where she lived, and observes that she was not even informed that her daughter had left there on 13 or 14 September 2005 (see paragraph 13 above). 77. The administrative procedure for the child's placement in foster care commenced on 9 June 2006, the foster parents having been selected on 2 April 2006. However, the Court observes that, according to the applicant, her daughter had told her of being taken to a house with a swimming pool, which suggests that the foster parents had entered into contact with the child long before the date that was mentioned, that is to say, a few days after she was separated from her mother, and at all events prior to 27 September 2005, the date on which the applicant and her daughter saw each other for the last time. The applicant further stated that the social workers had offered her money, a circumstance also referred to in A.L.N's report of 4 October 2005 (see paragraph 16 above). The Court finds it strange that the report referred to the money, thus confirming the applicant's statements, without specifying the reasons why the money had been offered to her. 78. In so far as the applicant complained that the domestic courts had not examined the irregularities in the administrative proceedings, the Court observes that the question whether a parent's interests have been sufficiently protected in the decision-making process will depend on the specific circumstances of each case. It notes in that regard that during the proceedings before the first-instance judges and the Audiencia Provincial, the applicant was able to present submissions in support of her case, in the context of judicial proceedings in which she was represented by a lawyer, at least from 1 February 2006 onwards (see paragraph 32 above; see also paragraph 21 above as regards the administrative proceedings). Accordingly, the Court does not discern any failings attributable to the domestic courts in that regard. 79. The Court observes that, in cases concerning family life, the breaking-off of contact with a very young child may result in the progressive deterioration of the child's relationship with his or her parent (see, among other authorities, Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 175, ECHR 2004 ‑ V (extracts), and K.A.B. v. Spain, cited above, § 103). This also holds true in the present case. 80. In view of these considerations, while reiterating that it is not its role to substitute its assessment for that of the relevant national authorities regarding the measures which should have been taken, since the authorities are in principle better placed to carry out such an assessment, the Court notes a serious lack of diligence in the procedure implemented by the authorities responsible for the child's guardianship, placement and possible adoption (see K.A.B. v. Spain, cited above, § 104). 81. In this connection and with reference to the obligation on the State to take positive measures, the Court has consistently held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, Eriksson, cited above, § 71, Series A no. 156, and Margareta and Roger Andersson v. Sweden, 25 February 1992, § 91, Series A no. 226-A). In this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation (see Maumousseau and Washington v. France, no. 39388/05, § 83, 6 December 2007, and Mincheva, cited above, § 86). 82. The crucial question in the present case is thus whether the national authorities took all the necessary and appropriate measures that could reasonably be expected of them to ensure that the child could lead a normal family life within her own family, before placing her with a foster family with a view to her adoption. 83. In the circumstances of the case it is understandable that the social worker A.L.N. may have decided, in view of G.'s situation, to take the child into care and place her in a home. While this is an extremely serious step which has repercussions for both the child and his or her mother, the urgency of the situation and the best interests of the child may make such a decision necessary. However, the decision in question should have been followed swiftly by appropriate measures to examine in depth the child's situation and her relationship with her parents, while complying with the rules in force. The child was separated from her mother against the latter's wishes and immediately transferred to a home on the basis of a decision taken by the social worker A.L.N. This situation was especially serious given the age of the child, who was still under four. The Court is not persuaded by the reasons considered by the administrative authorities and the domestic courts as “ample justification for automatically placing [G.] under guardianship and declaring her to have been abandoned”, in particular the child's allegedly serious condition, her supposed “lack of emotional attachment” to her mother, and the claim that the latter's “violent conduct during contact visits [was] disrupting the child's stability and development” (see paragraph 30 above). The Court notes that no consideration was given at any stage of the administrative procedure to the fact that the child had been very young when she was separated from her mother, to the existing emotional bond between mother and child or to the length of time that had elapsed since their separation and the attendant consequences for both of them. 84. In contrast to other cases which the Court has been called upon to examine, the applicant's child in the present case had not been subjected to violence or to physical or psychological ill-treatment (see, conversely, Dewinne v. Belgium (dec.), no. 56024/00, 10 March 2005, and Zakharova v. France (dec.), no. 57306/00, 13 December 2005), or to sexual abuse (see, conversely, Covezzi and Morselli v. Italy, no. 52763/99, § 104, 9 May 2003). The courts did not note any lack of emotional development (see, conversely, Kutzner v. Germany, no. 46544/99, § 68, ECHR 2002 ‑ I), or any worrying health problems on the part of the child or psychological instability on the part of the parents (see, conversely, Bertrand v. France (dec.), no. 57376/00, 19 February 2002, and Couillard Maugery v. France, no. 64796/01, § 261, 1 July 2004). While it is true that in some cases declared inadmissible by the Court, the children concerned may have been placed in care because of unsatisfactory living conditions or material deprivation, this was never the sole reason on which the decision of the domestic courts was based, since other factors such as the psychological state of the parents or their inability to provide their child with emotional and educational support were also considered (see Rampogna and Murgia v. Italy (dec.), no. 40753/98, 11 May 1999; M.G. and M.T.A. v. Italy (dec.), no. 17421/02, 28 June 2005; and Wallová and Walla v. the Czech Republic, no. 23848/04, §§ 72-74, 26 October 2006). 85. In the present case the applicant's ability to provide her minor daughter, G., with educational and emotional support was not formally at issue, despite the fact that her two eldest children had been placed in the foster care of their mother's great-uncle within the extended family (see paragraph 7 above). The care order in respect of the applicant's child was made because of the applicant's difficult financial situation at the time, without any account being taken of subsequent changes in her circumstances. The Court considers that the applicant had simply been faced with a shortage of funds, a situation which the national authorities could have helped remedy by means other than the complete break-up of the family, a measure of last resort to be applied only in the most serious cases. 86. In the Court's view, the Spanish administrative authorities should have considered other less drastic measures than taking the child into care. The role of the social welfare authorities is precisely to help persons in difficulty who are not sufficiently familiar with the system, to provide them with guidance and to advise them on matters such as the different types of benefits available, the possibility of obtaining social housing and other means of overcoming their difficulties, such as those originally sought by the applicant (see paragraph 8 above). The Court also observes that both the Granada first-instance judge no. 3, in his judgment of 18 May 2007, and the Granada Audiencia Provincial, in its judgment of 27 June 2008, refused to take into account the change in the applicant's financial circumstances which she sought to invoke in order to appeal against the declaration that her daughter had been abandoned (see paragraph 28 above), confining themselves instead to upholding the declaration adopted by the administrative authorities. 87. The Court further notes that the initial finding that G. had been abandoned was reproduced automatically throughout the subsequent procedure, during which the intention of the administrative authorities to place the child elsewhere was clearly expressed. The Court finds it surprising, to say the least, that the social worker who set the procedure in motion should have requested the Red Cross to trace the applicant, stating that the family who had “adopted” G. were also “prepared to adopt [her] baby”, whom she estimated to be around nine months old since the applicant “[had been] pregnant over a year ago” (see paragraph 26 above). It observes that the decision of 14 February 2007 by which the Granada provincial office placed G. in pre-adoption foster care (see paragraph 34 above) took into account the fact that the applicant's two eldest children were in foster care with her great-uncle, as well as the possibility referred to by the social worker that the French authorities had assumed guardianship of the applicant's baby. In the Court's view, the administrative authorities simply reproduced the successive decisions without making any new findings or assessing how the circumstances might have changed on the basis of tangible evidence. 88. As regards the child's placement, the Court observes that the applicant consistently opposed the move, with the support of the prosecutor responsible for minors (see paragraphs 38 and 41 above), and that her alternative proposal for her daughter to be placed in foster care with her great-uncle was rejected by the judgment of 4 September 2009 of the Granada first-instance judge (see paragraph 39 above). The Court notes that the judge rejected this proposal on the grounds that the applicant's great ‑ uncle was not a suitable candidate for fostering minors, without giving any reasons for this assertion, but simply stating that the applicant's great ‑ uncle would be “overburdened” since he was already taking care of the applicant's other two children (see paragraph 34 above). As the applicant's great-uncle was not granted leave to take part in the proceedings, he did not have an opportunity to express his views on the subject. 89. The Court refers to its case-law, cited in paragraph 81 above, to the effect that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action. It observes that, despite the fact that the prosecutor with responsibility for minors supported the applicant in opposing the child's placement in pre-adoption foster care, that option was chosen on the sole ground of the lack of contact between the child and her mother over a period of several years, although the contact between them had ceased precisely as a result of the administrative and judicial decisions taken. The Court notes that in arriving at the conclusion, in its judgment of 18 June 2010, that the psychological expert report submitted by the applicant was not sufficient to demonstrate her capacity to look after her children, and in finding that there was no convincing evidence that the lack of attention initially observed in relation to the child would not recur, the appellate court did not deem it necessary to commission other reports or expert findings on the applicant's psychological state or her ability to raise her child. The Court considers that taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III). It notes, however, that the applicant was forced to prove that she was a good mother to her child and that when she submitted evidence to that end the competent courts considered, without any supporting arguments, that it was insufficient to outweigh the assessment of the administrative authorities, which in the meantime had been upheld by a judicial decision. 90. The Court considers that, had the applicant's vulnerability at the time her daughter was taken into care been taken into consideration, this might have played an important role in understanding the situation of the child and her mother. Likewise, the subsequent change in the applicant's financial circumstances does not appear to have been taken into consideration by the judge, who simply referred in his judgment of 4 September 2009 to “technical reports”, without giving any details as to their content, and found that it had not been proven that the applicant was “once again competent to raise the child”, although it had never been alleged that the applicant had ill-treated her daughter. 91. The Court further notes that the follow-up report issued on 29 March 2011 by the child protection services showed that, almost six years after being separated from the applicant, the child had settled well in her foster family, with whom she had lived since 16 February 2007 and who met all her material and emotional needs. The Court observes in that regard that the passage of time made it very difficult to reverse a situation which could have been remedied by means other than separating the child from her mother and declaring her to have been abandoned. 92. Hence, the length of time that elapsed – a consequence of the administrative authorities' inaction – coupled with the inaction of the domestic courts, which did not consider to be unreasonable the grounds advanced by the authorities for depriving a mother of her daughter for financial reasons alone (the applicant's mental health, which was referred to initially, was not made the subject of any expert report) were decisive factors in precluding any possibility of the applicant and her daughter being reunited as a family. The applicant and her daughter last saw each other on 27 September 2005, and since then the applicant has constantly sought access to her daughter, both before the competent administrative bodies and before the domestic courts. 93. In view of these considerations and notwithstanding the margin of appreciation enjoyed by the respondent State in the matter, the Court concludes that the Spanish authorities failed to undertake appropriate and sufficient efforts to secure the applicant's right to live with her child, in breach of her right to respect for her private and family life under Article 8. 94. Accordingly, there has been a violation of Article 8. ...
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the authorities had failed to make adequate and effective efforts to secure the applicant’s right to live with her child and had thereby breached her right to respect for her private and family life.