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Tag Archives: Article 8
What weight do we attach to the welfare of a child when considering publishing information about care proceedings?
This is a post by Sarah Phillimore
This post is the text of my advice to the journalist Louise Tickle with regard to the extent to which the welfare of the child would be considered 'paramount' in any application to publish information about care proceedings. This matter was raised before the Court of Appeal by Paul Bowen QC on February 15th 2019 as potentially an issue with which the Court should grapple when considering Ms Tickle's application, but all agreed that this was not the appropriate case to investigate such arguments – though no doubt it will require resolution in some future case.
I conclude very firmly that the child's welfare simply cannot be paramount in any attempt to balance the competing rights protected by Articles 8 and 10 of the ECHR. Paramount means 'more important than anything else; supreme'. It therefore cannot be part of any 'balancing exercise'. If a right is 'supreme' then it will always tip the scales in its favour, no matter what counterbalancing weight is added to other side of the scales. To afford the child's welfare 'paramountcy' would be to render the balancing exercise obsolete.
I stress that what follows is my own view – the potential for further interesting argument is underscored by the fact that at least one QC who has read it expresses scepticism about my conclusions. Watch this space!
Advice concerning any possible 'tension' in the applicability of the paramountcy principle to those cases where requests are made for publicity
I have been asked to consider the following remarks made by the President of the Family Division in the case of In re W (Children) (Care Proceedings: Publicity) [2016] EWCA Civ 113 2015 Nov 23; 2016 Feb 25 (para 41 – 43):
During the hearing of the appeal we accepted the jointly argued approach of counsel and that, in turn, was the basis upon which we came to the decision on the appeal which we announced at the conclusion of the oral hearing. In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23 November 2015 and that decision was based upon the children's welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable ,must fall for determination by this court on another occasion.
The key authorities to which I am referring are a criminal case in the House of Lords, In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593; [2004] 3 WLR 1129, a private law family case in the Court of Appeal, Clayton v Clayton [2006] Fam 83,and a public law child case in the High Court, In re Webster [2007] 1 FLR 1146.
Although, in my view, a reading of those cases may give rise to a potential point relating to the paramountcy of the child's welfare, which, as I have stated, must fall for determination on another occasion, it is not necessary to go further in this judgment and consider the matter in any detail.
It is my very clear view that there is neither 'conflict' nor 'tension' as to when we must apply the paramountcy principle in cases involving requests to allow or restrict publicity about a case that involves a child. What there is however is potential for confusion, which in my mind is most likely to flow from a lack of engagement with what 'welfare' requires in any given case; a view having appeared to have taken hold of late that any publicity is of necessity a 'bad thing' for a child. I note for example and with some concern the President's recent championing of the ALC/Brophy research about the views of 'young people'. Given the small and self selecting nature of their research group, I and many others do not consider that research can properly bear the weight that some apply to it.
Having reviewed the authorities cited by the President it does not appear to me that there exists any such declaration, obiter or otherwise, against settled understanding. What would probably assist both practitioners and the judiciary would be some clear pronouncement in these current proceedings as to the necessary distinction between two different classes of case: Is the court faced with:
a. a matter directly pertaining to the child's upbringing – when welfare IS paramount and IS the trump card –BUT still needs to be identified;
b. Or a matter of much wider significance that engages the rights and freedoms protected by Article 10 of the ECHR – when the welfare of any individual child, while relevant and important cannot be the 'trump card against the Convention rights of others and a balancing act then commences.
In the latter scenario it is clear that it would be unlawful to then 'put the child's welfare on a pedestal which is incompatible with a Convention right' (see Mr Justice Munby as he then was, at para 59 of his judgment in Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam)
I assert that the correct distillation of the current law that is that there is no special privilege accorded to children who are the subject matter of proceedings save as is strictly necessary for their protection in the context of the proceedings themselves – see R v Central Independent Television PLC 1994 Fam 192 at 207 per Waite LJ.
In cases where 'welfare' is the paramount consideration, the analysis cannot simply stop there and on an assertion that greater publicity will inevitably harm the child. There must be a clear analysis of what exactly is proposed by way of greater publicity and what exactly it is anticipated will be the impact on the child – note the analysis carried out in Clayton v Clayton [2006] EWCA Civ 878.
I shall explain my reasoning in more detail below.
The statutory basis for the paramountcy principle.
In proceedings under the Children Act 1989 section 1 (1) reads:
When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it,
the child's welfare shall be the court's paramount consideration.
We are given little assistance in fleshing this out in the definitions section which reads simply:
"upbringing", in relation to any child, includes the care of the child but not his maintenance;
The dictionary definition of 'upbringing' is
the treatment and instruction received by a child from its parents throughout its childhood.
If the court is deciding a matter that goes to 'upbringing' then children do rightly have this special privilege of a 'trump card'. The matter before the court is relating to their private family life and the decision made by the court will matter hugely to them, but probably not very much to anyone else outside their family circle.
The authorities considered by the President
A possible explanation for how confusion has arisen with regard to the applicability of the paramountcy principle may be seen from the comments of Lady Justice Hale (as she then was) in the Court of Appeal when considering Re S [2004] (op cit).
This case involved a decision by Hedley J to dismiss an application for an injunction restraining the publication by newspapers of the identify of a mother who was on trial for the murder of her elder child. This had been sought to protect the privacy of the younger surviving sibling who was not involved in the criminal proceedings. A child psychiatrist had opined that if there were a 'long period of adverse publicity' this would significantly increase the surviving child's propensity to develop a 'psychiatric disorder'. However the Court of Appeal dismissed the appeal by a majority and the House of Lords came to the same conclusion.
Hedley J commented that he would have come to the same conclusion even if he had been persuaded that the surviving child's welfare was paramount. Hale LJ rightly commented that this was an odd thing to say; had the child's welfare been paramount then it was the 'trump card'. However, it was not felt necessary to resolve this 'dilemma', presumably because all agreed that the child's welfare was NOT paramount in these circumstances. The House of Lords eventually decided that Hedley J had made the right decision but had not properly carried out the required balancing exercise between the child's right to privacy and the established importance of criminal proceedings being open and transparent.
Therefore, it does not appear to me that Re S raises any difficulty about the general proposition that the child's welfare is NOT paramount in such cases. This was about a criminal trial and the identification of the defendant. It did not concern the child's upbringing – but no doubt might have some impact on it. However, and sadly as Hedley J identified, it was 'inevitable' that those who know the child would realise who he was and the nature of his mother's alleged crime, whether she was named or not.
The cases of Clayton and Webster engaged in more detail this distinction between cases involving 'upbringing' and those that engage much wider concerns about rights of freedom of expression .
For example, in Clayton, the father had been restrained from publishing any information about matters concerning his daughter until her 18th birthday. The father argued that this impeded his ability to effectively lobby, comment upon or campaign about the family court because this involves discussion of the human aspects of individual cases and specifically his own. Although he had behaved badly and abducted his daughter to Portugal, the parents had in the end been able to agree shared care arrangements and he wanted to be able to talk about that.
The court agreed that the father should not be restrained from his campaigning work as this was a legitimate wish and those activities did not relate to the upbringing of C or substantially engage her welfare interests. His one proposal that did engage her upbringing was his wish to return with C to Portugal and film her there, possibly for a documentary. The court refused to allow this, describing it as a 'self exculpatory publicity exercise'.
So again, there is no identifiable tension here. Where the matters did not pertain directly to C's welfare, the balancing exercise between Articles 8 and 10 had to be conducted. Where the matter did pertain directly to her welfare then this was the paramount consideration and overrode the father's wish for greater publicity.
An interesting tension however does arise in paragraph 59 where Sir Mark Potter comments that even when welfare is paramount 'it does not exclude the necessity for the court to consider Article 8 and 10', citing Re Z A Minor 1997 Fam 1.
This would appear to contradict Hale LJ's observation that the welfare principle, if applied, was indeed the trump card and renders the distinction between 'upbringing' and 'non- upbringing' cases as obsolete. It is then even more intriguing that the President appears to have identified a rather different tension in the opposite direction!
However, it is my assertion that this is arid territory and matters are drifting into unnecessarily complication. The 'tension' – such as it is – is clearly sensibly resolved by the focus being on whether or not the court are engaged with matters of 'upbringing' .It may not always be possible to draw a clear line but I suggest that there will be certain classes of case that fall more clearly on one side of the line than others.
For example, the present case under appeal cannot, in my view, be sensibly characterised in any way as relating to any child's upbringing. The Article 10 rights in play relate clearly to the public interest in being able to discuss what happened to a mother who needed to find £20K to fund an appeal against a decision that was found to be inadequate by the Court of Appeal – a decision that could have lead to the adoption of her child by strangers.
There is further useful discussion in the case of Webster. This had involved a considerable amount of publicity around the birth of the Webster's fourth child – their elder three children having been removed and adopted in what the Webster's and many others asserted was a gross miscarriage of justice. Munby J (as he then was) opened the proceedings to selected media representatives. Again, this was not a case about 'upbringing' of an individual child but broader comments on the operation of the family justice system.
As Munby J stated at para 59 of his judgment, he agreed with the submissions of those who argued that section 97(4) of the Children Act had to be read as permitting the court to dispense with the prohibition on publication in section 97(2) where the right of free expression under Article 10 or other Convention rights require it:
'To do otherwise would, as Mr Warby put it, place the child's interests on a pedestal in a way which is incompatible with the Convention. I agree'.
Any attempt to argue that 'upbringing' should be extended to include influence on those rights and freedoms protected under Article 10 of the ECHR would, in my view, fall foul of section 3(1) of the Human Rights Act 1998 which requires legislation to be read and given effect in a way that is compatible with Convention Rights.
The rather intriguing comment that the balancing exercise should still follow even after identification of welfare as paramount, is in my view best explained by reframing that concern as the need for a proper analysis of what the child's welfare actually requires in any given case. Clayton shows the court clearly engaging with this and considering in some detail exactly what the father proposed by way of additional publicity and what the impact on the child should be.
I therefore propose that the Court of Appeal should be invited to state the law in the following way:
a. The principle that the child's welfare is paramount applies only to those cases directly engaging issues around the child's upbringing.
b. Cases which involve significant media interest around issues pertaining to matters of wider importance – such as proper conduct of criminal proceedings or a wish to shine a light on a possible miscarriage of justice – are unlikely to be categorised as relating solely or even primarily to a child's upbringing and the balancing exercise between Articles 8 and 10 must then be undertaken
c. Even if the court decides the child's welfare is paramount, that still requires some analysis of what 'welfare' actually demands; it cannot be assumed that the mere fact of publicity will cause a child harm.
EDIT MARCH 9th 2019 – Consideration of further case law.
Paul Bowen QC asked me to consider further 2 authorities; one from the Constitutional Court of South Africa Case CCT 53/06 [2007] ZACC 18 and R v Petherwick [2012] EWCA Crim 2214.
On considering these two cases, I remain firm in my view that 'paramountcy' alone using its dictionary definition as 'supreme' is an empty vessel. One cannot determine 'paramountcy' without a clear sighted analysis of what impact each decision will have on each child. The South African Courts appeared stuck with the very broad reference of their Constitution but managed to wiggle out by reframing 'paramountcy' as requiring a detailed analysis of the impact of the decision upon the child, whilst weighing in the balance competing rights that impacted on society more widely.
I do not accept that section 1 of the Children Act bears comparison to section 28 of the SA Constitution as it is explicitly restricted to matters of 'upbringing'. If I am wrong about that, it seems to matter not as presumably the English court could simply follow the South African example and accept that 'paramount' when applied to questions of children's welfare in the context of wider societal demands – such as imprisoning criminals or letting journalists do their job – cannot possibly mean 'supreme' but rather a reminder that we must focus on the impact of each decision on the child and strive for the most proportionate balance between competing rights and interests.
The first case in the South African court asked the question:
When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the children's interests shall be paramount?
This case involved a single mother of three children, two teenagers and an 8 year old. She was a habitual fraudster and was eventually sentenced to four years in prison, despite a report saying the mother was a strong candidate for a non-custodial sentence.The Centre for Child Law of the University of Pretoria was admitted as amicus curiae and made wide-ranging written and oral submissions on the constitutional, statutory and social context around this question.
The court agreed that the nature of the crime, the personal circumstances of the criminal and the interests of the community are all relevant considerations when determining the appropriate sentence for a criminal offence. It cited with approval the words of Friedman J in the case of Banda who advanced a clear balancing exercise between these tensions:
A court should, when determining sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements in order to ensure that one element is not
unduly accentuated at the expense of and to the exclusion of the others.
The issue now before the court was the extent to which the Constitution had impacted upon this balancing exercise. Section 28(2) of the Constitution provides that "[a] child's best interests are of paramount importance in every matter concerning the child."
There were already serious questions about the efficacy of such a wide-ranging provision. The court cited Van Dijkhorst J in the case of Jooste:
The] wide formulation [of section 28(2)] is ostensibly so all-embracing that the
interests of the child would override all other legitimate interests of parents, siblings
and third parties. It would prevent conscription or imprisonment or transfer or
dismissal by the employer of the parent where that is not in the child's interest. That
can clearly not have been intended. In my view, this provision is intended as a
general guideline and not as a rule of law of horizontal application. That is left to the
positive law and any amendments it may undergo."
However, the court then went on to comment about the necessary change in 'mind-set' brought about by the UN Convention of the Rights of the Child, reflected in the constitution:
The unusually comprehensive and emancipatory character of section 28 presupposes that in our new dispensation the sins and traumas of fathers and mothers should not be visited on their children.
The court referred to a variety of commentary about the inherent weakness in any argument about 'welfare being paramount' or that matters must be decided 'in the child's best interests' – because everyone had such different ideas about what exactly this would encompass. However, the court ingeniously declared that far from this being a weakness it was as strength – as it pushed people to clearly focus on the individual child before them.
Yet this Court has recognised that it is precisely the contextual nature and inherent flexibility of section 28 that constitutes the source of its strength. Thus, in Fitzpatrick this Court held that the best interests principle has "never been given exhaustive content", but that "[i]t is necessary that the standard should be flexible as individual circumstances will determine which factors secure the best interests of a particular child."29 Furthermore "'(t)he list of factors competing for the core of best interests [of the child] is almost endless and will
depend on each particular factual situation'."30 Viewed in this light, indeterminacy of
outcome is not a weakness. A truly principled child-centred approach requires a close
and individualised examination of the precise real-life situation of the particular child
involved. To apply a pre-determined formula for the sake of certainty, irrespective of
the circumstances, would in fact be contrary to the best interests of the child concerned.
Equally if the 'paramoutcy phrase' was spread 'too thin' then it risked becoming empty rhetoric. Its application cannot mean that the direct or indirect impact on children of any action is enough to oust proper considerations of that action. The court stated that section 28 was not mean as 'an overbearing and unrealistic trump of other rights' and is capable of limitation, discussing for example the obligation to return a child to the country of habitual residence in cases of child abduction.
Interestingly the court then stated
Accordingly, the fact that the best interests of the child are paramount does not mean that they are absolute.Like all rights in the Bill of Rights their operation has to take account of their relationship to other rights, which might require that their ambit be limited.
This appears to be linguistic trickery if we take the standard dictionary meaning of 'paramount' as 'supreme' or 'more important than anything else'.
The court decided that it was not imprisoning a primary care giver that violated section 28 of the Constitution but rather any such imprisonment that did not give proper consideration to the rights of the children involved. The court suggested the following areas should be considered when dealing with sentencing a primary care giver.
To establish whether there will be an impact on a child.
To consider independently the child's best interests.
To attach appropriate weight to the child's best interests.
To ensure that the child will be taken care of if the primary caregiver is
sent to prison.
What is this if not another clear example of a balancing exercise? The court recognised that of course children have a right and a need to be cared for by their primary care giver – but they also have a right to grow up in a society where criminality is dealt with. To say simply that 'the child's welfare is paramount' without further examination is to risk sacrifice of other hugely important rights that impact on society at large. The parallels with arguments for reporting resections are obvious.
The court eventually decided in this case that M, her children, the community and the victims who will be repaid from her earnings, benefitted more from her being placed under correctional supervision, rather than imprisonment.
In the second case the mother was sentenced to four years and nine months imprisonment for causing death by dangerous driving and appealed on the basis that this sentence did not take sufficient account of the Article 8 rights of her young son. This was a serious case of its type and the starting point for sentencing was 8 years. Happily her son had not gone into state care but was being cared for by family members. The Court of Appeal were content that the trial judge had carefully weighed all relevant matters in the scale and his approach was 'immaculate' – however they would reduce the sentence from four years 9 months to 3 years 10 months in light of the representations made on the mother's behalf.
This case therefore does not appear to engage discussion of the paramoutcy principle, other than to cite with approval the South African case discussed above –
Seventh, the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver and M v The State SA 2008 232 is again a good example.
This entry was posted in Other thoughts and tagged Article 10, Article 8, Louise Tickle, Reporting Restrictions Order on February 27, 2019 by Sarah Phillimore.
If a parent has parental responsibility and no one cares, what remedies do they have?
I am very grateful to the mother of Shayla for giving me permission to post this. I shall call the child murdered by Matthew Scully Hicks (MSH) by the name her mother gave to her at birth. It is one of the sad and poignant features of many in this case that at the time of her death Shayla was known by at least four different names, which made it difficult to find relevant records about her short life. Page 15 of the Review notes that 'at the point of her death it was difficult to get the information about when she had seen medical professionals. This was due in part to a number of different IT systems and that S was known by four different combinations of her birth and adopted name.'
Another more poignant issue is her mother's belief that, had she been told of Shayla's injuries when in the care of MSH before the making of the adoption order and when she still had parental responsibility, her baby would still be alive. The mother may or may not be right in that belief. But now, sadly, we shall never know.
What rights do parents have to know their child has been hurt? Even if the parent isn't caring for their child? Even if there is no chance the parent ever will?
In brief, S was injured on several occasions in the care of MSH before the adoption order was made. Shortly after the adoption order was made he assaulted her again and this time she died. The mother was never told about any of these injuries despite retaining parental responsibility until it was extinguished by the making of an adoption order. She remains of the belief that had she known, there would have been something she could have done to stop her daughter's death.
Other parents have told me online, and in person, that the same thing has happened to them. That their children suffered sometimes really serious injuries whilst in foster care but they were never told. Just what is going on here? Why is parental responsibility apparently so carelessly ignored when children are looked after? The clue is found in the Review at page 15:
the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.'
I suspect what we are seeing here is the logical conclusion of the mantra that 'adoption is best' and that 'children need to be rescued'. If a child is seen entirely in isolation from his or her parents, if those parents are seen as unsuitable or undesirable then it is hardly surprising that their legal rights are not seen as something worthy of much attention. But this is wrong. It hurts both parents and children.
Even if parents cannot care for their children, by reason of circumstances within or without their control, it is rare to find a parent who doesn't care about them, who doesn't have knowledge about their child. Even the very 'worst' 'monster parent' still has something to offer, even if it is only some sense of identity or history.
I do not think what appears to be widespread negation of parental responsibility when children are looked after is acceptable and it says profoundly ugly things about our society.
The review of Shayla's death.
The only written document I have seen relating to these proceedings is the Extended Child Practice Review C&V CPR 04/2016 ('the Review') which was commissioned by the Cardiff and Vale of Glamorgan Regional Safeguarding Board on the recommendation of the Child and Adult Practice Review Subgroup in accordance with the Social Services and Well Being (Wales) Act 2014 Part 7.
What happened between September 2014 and S's death in 2016.
At page 4 the Review sets out what it is has done and who has been seen in order to complete the work. I note that both the mother and the maternal grandmother were interviewed and the Review explicitly recognises how difficult and emotional it has been for both.
S was placed in foster care in November 2014. A care and placement order were made in May 2015 and S was placed with MSH and his husband in September 2015. The adoption order was made in May 2016 and she died shortly afterwards. MSH was convicted of her murder in November 2017.
The Review sets out the care planning for S at page 6 and concludes it was appropriate; all the evidence suggested that adoption would be in S's best interests.
MSH and his husband were first approved as adoptive parents in August 2013 and had their first child placed with them in October 2013. The first child was adopted by them in April 2014. They were assessed again in February 2015 and approved in July 2015. In September 2015 the Agency Decision Maker approved the match between S and the adoptive parents and she moved to live with them.
The Review sets out at page 7 that they had access to key documents about this assessment process and considered it was 'robust, detailed and comprehensive'. All the evidence suggested this would be a positive outcome for the child. There is no mention here of any member of the assessment process or any social worker being related to MSH's husband. If this is true, I would expect comment.
The Review then considers S's placement with the adopters. In November 2015 she is taken to the GP by one parent, it is not clear which (reference is made to 'dad' or 'father' rather than 'primary carer' which would have clearly identified MSH) and found to have a fracture to the bone at the end of her left leg. However she is seen only by a Registrar who was not overseen by a consultant; in fact she had two fractures of two different bones in her left leg and this was not discovered until after her death. The doctors, unaware of the second fracture, find the parents' description of what happened to fit with the injuries found and a cast was put on S's leg.
In December 2015 MSH texts the Adoption SW to say S has a large bruise on her forehead. The Adoption Review makes no reference to that bruise. Five days later a health professional notes (presumably) another bruise to her forehead and eye. The health professional does not tell anyone else.
In March 2016 MSH telephones 999 to say S has fallen though the stair gate at the top of the stairs, does not lose consciousness but vomits. S goes to hospital for 4 days. Medical professionals accept MSH's explanation. S is then seen by a GP for a 'unilateral squint'. A referral is made but she dies before this can take place.
In May 2016 S is seen by consultant neonatologist for routine follow up and no concerns identified. Later than month MSH calls 999 to say S is limp, floppy and unresponsive. He gives different explanations about what happened. S never regains consciousness and died in hospital with bleeding on her brain. The police arrest MSH.
The Review does identify some serious flaws in these procedures:
a. The bruise(s) to S was not recorded and not considered at the Adoption Review
b. S was not taken to the GP until 5 days after the 'accident' that led to the fracture of her left leg and in fact a second fracture to the top of her left leg was identified after she died. It was considered highly unlikely for any child to break two separate bones in one accident and had the second fracture been found at the time, 'concerns would have undoubtedly been raised and child protection procedures instigated'.
The Review notes that immediate organisational changes were made.. I note at page 15 the Review comments 'the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.'
The Review comments on the mother's views in the following terms:
The Birth Mother shared her concern that it was several months before she was informed of her child's death. She indicated that she would have preferred to have been informed of her child's death by somebody that was known to her. Following being informed, she felt she received information from several sources in an ad hoc fashion. Understandably the emotional impact of the child's death on the birth family has been very significant.'
However the Review does not appear to make any substantive comment on these issues and how they could be dealt with better in the future. I would have liked to see at least some discussion of that.
At page 12 the Review identifies what they have learned from S's death. A key point appears to be that although MSH, his husband and some of the extended family knew that MSH was under stress caring for two children, this information wasn't shared with any professionals and only became clear in the criminal proceedings. The Review notes that 'the overall presentation to the agencies was one of a happy and united family'.
It is clear that MSH was viewed through a 'positive' lens and there was nothing throughout the adoption assessment process that could have indicated MSH would injure and kill S. However, as the Review concedes, this 'positive lens' led to a minimisation of concerns about S's injuries, 2 incidences of delay in getting medical treatment to her and MSH informing the HV he had sought GP advice about a bruise when he had not. The Review comments that '… with the benefit of hindsight, the monitoring and review of children placed for adoption can be strengthened by ensuring that safeguarding responsibilities are given due emphasis'.
The mother would have liked to have been part of that process to ensure that S was safe. But she was never given any opportunity.
The 'Key Learning' identified is set out at pages 14-15 – no discussion of failure to provide information to those who hold PR
When children are seen at hospital, Paediatricians are key professionals in recognising the possibility of injuries being caused deliberately
Professional judgements should be based upon consideration of all the evidence available rather than individual events
Professionals need to ensure the details of a child's injuries are recorded as significant events.
Each agency has a professional responsibility to ensure that they are aware of all the significant events in a child's life. – no one agency or worker held all the relevant information about S.
Adoption reviews should provide opportunities for robust professional scrutiny and challenge – a holistic understanding of the child's story was not gained
The recording and retention of information received via text and other messaging services are an increasingly important source of information.
Learning after S's death – this was made more difficult by the fact that it was difficult to gather all the relevant information due to different IT systems in use and S being known by up to four different names.
I note again a failure to refer to the lack of provision of information to those who have PR.
The overall conclusion of the Review is that some systems and practices should be improved but that there was no information during the assessment stages of the parents that could or would have predicted what happened to this child.
This is true but rather skates over the concerns in the body of the Review that the significance of some of this information was missed; either because it was unknown (the second fracture) or because it was not seen in its proper context – serious bruising and delays in taking S to the GP for example. The reason for this is given as that the adoptive parents would inevitably be seen through a positive lens, as adoption is inevitably seen as a positive thing for a child. Thus as the Review concedes there was a 'lack of professional curiosity' regarding S's experiences.
I am concerned about this. There were two categories of information that were not given to the mother.
a. information that S had been injured and suffered a fractured leg in the care of the adoptive parents prior to the making of an adoption order and while the mother still had parental responsibility (PR).
b. Information about S's death which occurred after the making of the adoption order, thus extinguishing the mother's PR.
Information withheld while the mother had PR
The mother was never told about her daughter's injuries. The failure to inform her was a breach of her continuing Article 8 rights as a holder of parental responsibility. The local authority may argue that this breach would be seen as proportionate and lawful given regulation 45 of the Adoption Agency Regulations 2005, which disapplies section 22 of the Children Act 1989 and thus removes the local authority's duties to ascertain the wishes and feelings of the parent and take them into account when coming to any decision about the child who is subject to a placement order. However, asking about wishes and feelings is not the same as providing information.
I do have to accept that it is likely that even if the mother had been told about S's fractured leg, I do not think this would have made any difference to the LA approach as the significance of that injury was that there were in fact two fractures and the second was not found until after S died. I can speculate that if the mother had been told about the bruising and raised complaint, this might have pushed the various agencies into looking more closely at the overall picture painted by the bruising and late presentation to the GP. However, I suspect that absent any information that MSH was struggling to cope – which was not shared by MSH or his husband with any agency – that the mother's intervention would have made little difference as there was no evidence before the LA to challenged the 'positive lens' though which the adoptive family were seen.
However, whether or not the mother could have 'done' anything with the information, I do not think is the relevant point here. She still had PR. She should have been told. Parents in this situation should have a remedy pursuant to the Human Rights Act for 'just satisfaction'.
Is Article 8 ECHR extinguished after adoption? I don't think so
After S's adoption, the convention wisdom of the family courts is that all Article 8 rights fall away and thus the mother was no longer seen as anyone with any relevant interest in S's life or death. This may be the current view of the courts –see Seddon v Oldham MBC (Adoption Human Rights) [2015] EWHC 2609 (Fam) but in my view it is based on a misunderstanding of what is actually protected by Article 8 – protection of family and private life encompasses protection of psychological integrity.
A sound mental state is an important factor for the possibility to enjoy the right to private life (Bensaid v UK para 47). Measures which affect the physical integrity or mental health have to reach a certain degree of severity to qualify as an interference with the right to private life under Article 8 (Ben-said v UK, para 46).
I imagine that the mother's distress arising out the circumstances of her daughter's death and the failure of other agencies to provide her with any timely information, would bring this case into the necessary degree of severity of harm. An adoption order did not change the fact that S was the mother's daughter and at some point in the future, had she lived, may have sought her out. The pull of biology is recognised as strong and important for most and is reflected in such initiatives as life story work and the Adoption Contact Register.
If the law does says that the mother had no right to learn of her daughter's death because an adoption order 'wiped out' her Article 8 rights, then in my view the law is wrong and should be challenged.
It is my very firm view that no law should be permitted to stand that is capable of imposing such a cruel situation upon any parent, no matter their previous failings and no matter that their child has been adopted. I suspect the problem here is what was identified by the Review at page 15: 'the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.'
This entry was posted in Other thoughts and tagged Article 8, Elsie Scully Hicks, parental responsibility on September 13, 2018 by Sarah Phillimore.
A.H. and Others v the Russian Federation
A case about adoption and the best interests of children.
Application no. 6033/13
Judgment in this case was circulated on 17th January 2017. It involved 16 applications against the Russian Federation by 45 US citizens and involved 27 children. The claimants had all been in the final process of adopting Russian children when in 2013 the Russian Federation imposed an unexpected and swift ban on any adoption by US Citizens.
The case ended with the ECtHR agreeing that US parents had been discriminated against and awarding a small amount of damages as 'just satisfaction'. The arguments about the rights and wrongs of the ban on adoption by US citizens were wide ranging and illustrate, yet again, that the rights of individual children are very often lost in the competing political and social arguments made by adults.
The saddest part of the judgment is where the court notes that the peremptory ban on adoption lead to many of the children remaining in orphanages for months, even years. Some remain in orphanages still.
Background to the claim
The death of Dima Yakovlev in 2008 had led to an outcry in Russia and concern over ill-treatment of other Russian children who had been adopted by American citizens. Dima died after being left in a car for 9 hours by his American adoptive father, who was later acquitted of involuntary manslaughter. On 1st January 2013 the Russian Federation introduced a law prohibiting any further adoption by US nationals of Russian children. The US parents argued that preventing them from completing their adoption applications because of their nationality was unlawful discrimination and claimed breach of Article 14 of the ECHR in conjunction with Article 8. They also made a claim arguing breach of Article 3 because the children, many of whom had disabilities, had been deprived of medical treatment in the US.
At the time of the ban, the US State Department issued a statement highlighting its regret, pointing out that some children who had already formed bonds with their potential new families would now not be able to live with them. There was further serious criticism from various human rights agencies such as Amnesty international, who said it was politically motivated and not in the best interests of the children concerned.
Judge Dedov had the following view of the political background to the ban:
Obviously, the impugned Law was a reaction to the political pressure constantly exercised by the US authorities in relation to Russia since 2002, when the Russian authorities started taking steps to reinforce the independence and sovereignty of the country. Finally, in 2015 Russia was officially declared to be one of the most serious threats (together with ISIS and Ebola) to the USA. The US strategy was implemented through political and economic sanctions, cultural isolation, intensive political propaganda demonising the so-called "political regime" in Russia and establishment of military bases surrounding Russian territory.
Inter-country adoption is recognised as a mechanism to promote the welfare of children who cannot otherwise remain with their birth family by Art 21 of the 1989 UN Convention of the Rights of the Child, which was ratified by Russia in 1990. In 2013 the OSCE Parliamentary Assembly adopted a Resolution on Inter Country Adoptions (see jmt para 301) which recognised that 'a bond forms rapidly between the child and prospective adopters during the adoption process but before legal parent-child relationship has been effected' and urged participating States to resolve its disputes about inter-country adoption in a way that did not harm the best interests of the child or damage this 'nascent family'.
Article 8 and the right to a family and private life/ Article 14 prohibition on discrimination
All parties agreed that Article 8 right to a family life did not protect a mere wish to start a family (see para 376); it presupposes the existence of a family thus does not support a 'right' to adopt. The US applicants had initiated the inter-country adoption processes in 2010-12 so most of them had met the child they were seeking to adopt, had spent time with him or her, and had either submitted the adoption application to a Russian court or had their file ready for submission. They were all therefore in the 'final stages' of the adoption procedure (para 422).
Some applicants were clearly further down the road to establish 'familial ties' with the children – for example, one family had already adopted the sibling of one of the children and thus had a clear argument on both right to family life and right to a private life.
The court noted at para 383 that the US applicants had a genuine intention to become parents by applying for inter country adoption when it was still lawful in Russia. Therefore the issue was their decision to become parents and 'their personal development through the role of parents that they wished to assume'. This fell within the scope of 'private life' protected by Article 8.
The Court therefore agreed that Article 14 and Article 8 applied and dismissed the arguments of the Russian Federation to the contrary. However, Article 14 could only apply to the US potential parents, who were discriminated against on the grounds of nationality. It could not apply to the children.
Russian Government – ban on adoption by US nationals was 'measure of last resort' to protect children
The Russian Government argued that the ban on the adoption of Russian children by US nationals was not discriminatory but based on objective and reasonable grounds and the children's best interests (See para 392). The US citizens could still adopt from elsewhere and other countries had implemented similar blanket bans – for example the UK banned adoption from Cambodia in 2005. Other countries permit inter-country adoption only in exceptional circumstances or subject to strict requirements.
There was also concern that parents in the US had failed to provide reports about the wellbeing of 653 Russian children over the past 3 years and the Russian Government further relied upon reports from NGOs and the US Department of Health and Human Services, of a hidden 'epidemic of violence' against children in the USA, citing 5 children who died every day because of abuse or negligence perpetrated by adults (in 80% of cases being biological or adoptive parents). The Russian Government were concerned that at least 20 children adopted from Russia had been killed by American adoptive parents, although they did not have precise statistics to support this figure (para 396).
Thus a ban on adoption of Russian children by US nationals was not discrimination but a measure of last resort, prompted not only by instances of death, injury and sexual abuse of Russian adopted children but also by the lack of co-operation by the US to help ensure their safety and psychological well being (para 398). Also cited was the desire to increase adoptions by Russian nationals.
US parents response – no objective justification for ban
The claimants responded (para 403) that death and serious injury to Russian adoptive children comprised on a tiny proportion of the overall number of Russian children so adopted and that the Russian Government had not provided any information that the situation was any better for Russian children in any other country, or indeed in Russian orphanages. The claimants rejected the argument that one of the aims behind the ban was to encourage adoption by Russian families as adoption by foreign nationals was only permitted when it was 'impossible' to find a Russian family willing to adopt. The claimants argued that the Russian response was disproportionate and excluded an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia (para 405).
The Decision of the Court – in imposing ban on adoption, no consideration given to the interests of the children
The Court agreed that American nationals were being treated differently. Did that have an objective and reasonable justification (para 412)? The Court noted that the ban on adoption came only two months after the introduction of the Bilateral Agreement on Adoption between Russia and the US which was aimed at providing stronger legal safeguards for such inter-country adoptions. Most of the concerning incidents involving Russian children in the US had occurred before the entry into force of that Bilateral Agreement. Thus it was doubtful that the ban on adoption had a reasonable justification (para 420).
The claimants were all in the final stages of the adoption process and their proceedings were brought to an abrupt end because of the automatic ineligibility provided by the ban on adoption that unexpectedly came into force over ten days.
The Court found at para 425:
'No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. At the date of this judgment, some of them are still in orphanages.
The Russian Government had thus failed to show that there were compelling reasons to justify a blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the US (para 426). The difference in treatment was thus discriminatory in breach of Article 14, in conjunction with Article 8. There was thus no need to examine a separate complaint under Article 8.
The Article 3 breach
The claimants further alleged that most of the children concerned needed specialist medical care that was only available in the US and depriving them of that treatment was a breach of their Article 3 rights, which protects against inhuman or degrading treatment. The Court considered this at para 432 onwards. The Russian Government provided evidence about medical treatment available and conditions in Russian orphanages and rejected the argument that the Russian state could not provide suitable medical care for the children. The claimants relied upon expert statements and academic works concerning the general situation in Russia as the medical files relating to the children were in the Russian Government's possession.
Submissions of third party intervenors about the importance of early permanence for children.
At para 440 onwards the Court heard argument from the intervenors. The Harvard Law School's Child Advocacy Program (CAP) and the Bucharest Early Intervention Project (BEIP) argued that extensive research over many years demonstrated the importance of placing children in permanent adoptive homes as early as possible. Nurturing parenting in child's early months and years is vital to normal physical, emotional and intellectual development. CAP cited particular concerns about Russian orphanages, saying '95% of Russian children who grow up in orphanages end up on the streets… and are likely to die shortly after their 18th birthday'. As the world became more global, the idea 'that children belonged in some essentialist sense with their racial or national groups of origin was outdated' (para 443).
The Russian Government countered that Article 8 of the UN Convention on the Rights of the Child protected the child's right to preservation of his or her identity, including nationality. They rejected the arguments about dire outcomes for children in Russian orphanages as 'unsubstantiated and untrue' (para 446).
The Court ruled that the complaint based on Article 3 was inadmissible as manifestly ill founded. The information provided by the claimants was largely of a general nature and the evidence from the Russian Government showed that these particular children received adequate medical care in Russia.
The Court awarded the applicants EUR 3,000 in respect of non-pecuniary damage and around $600 dollars for costs and expenses of the court proceedings.
The Partly Concurring Opinion of Judge Dedov
This raises a sad and salient point:
There is a more serious problem in Russia. The Russian Government informed the Court that there were still more than 66,000 children abandoned by their parents and subsequently placed in orphanages. The total number of such children who have been accommodated in orphanages during the last 25 years may be close to 300,000. Obviously this is the result of a structural social problem caused by the deterioration of values and lack of social responsibility. This problem cannot be resolved either by inter-country adoption or by political pressure'.
This entry was posted in Other Countries and tagged Article 14, Article 8, inter-country adoption, Russia, US on January 17, 2017 by Sarah Phillimore.
Adoption: A vision for change?
On 27th March 2016 – Easter Sunday – the Department of Education released its policy paper setting out its vision for improving adoption rates. Broadly, it sets out progress re adoption since 2010, current challenges and how they will be met and the government's vision for the adoption system by 2020.
There are five chapters:
Chapter 1 Progress to date
Chapter 2 New and enduring challenges
Chapter 3 Creating the foundations for sustainable success
Chapter 4 Excellent practice everywhere
Chapter 5 Sharpening accountability to ensure delivery
In order to 'achieve our vision' the government will:
Act to address unexpected falls in adoption decisions
Deliver radical, whole system redesign by regionalising adoption services
Invest in developing the workforce
Reduce the time children wait to be adopted
Provide more high quality adoption support
Further embed strong performance management and accountability arrangements
No one could sensibly argue against much of what is said in this policy paper. Every child does indeed deserve a loving, stable family and for those children who cannot live with their birth parents it is vital to find them permanent new homes as quickly as possible. Adoption is clearly an important option for those children who cannot live with their birth family, providing stability and care which can last long beyond childhood. It is good to hear that the Adoption Support Fund will be increased.
The Government is on a collision course with the law.
But my fear is that this is simply another piece of the adoption agenda which has been promoted by this government for some time now. This is dangerous. Promotion of an agenda is often at the expense of facts. This has clear potential for putting the government on a collision course with the law. This will be a time consuming, expensive distraction and the children will have to watch and wait on the sidelines as it plays out.
Agenda versus facts
The fact that the proportion of children adopted within 12 months has 'almost doubled' is offered up as 'remarkable progress that should be celebrated'. The recent decline in adoption numbers means 'there is an urgent need to accelerate our reform of the adoption system now'. Thus, from the very outset, the policy paper is built on the assumption that more adoption and quicker adoption is an unqualified good which needs to be urgently achieved.
The foreword states that only 3.2% of children return to care ever year after an Adoption Order is granted, compared to 25% of children on a 'residence order'. This is from research by Selwyn and Masson in 2014. Thus adoption is offers the best chance for stability for children.
However, it is not clear to me from either the policy paper or the article which it cites (why not link to the actual research??) whether the disruption rates refer to adopted children subject to a care order after adoption or who are accommodated under section 20 of the Children Act (i.e. by agreement with the adoptive parents). Both are 'looked after' children but only those subject to care orders will have gone back to court. Thus this simple comparison between disruption rates in adoption and 'residence orders' is not helpful without clearly stating what is meant by 'returning to care'.
Campaigning groups such as the Parents of Adopted Traumatised Teens tell a different story about adoption stability – of adopted children disappearing back into the system under section 20, of inadequate or non existent help and support, of social workers who do not understand issues of attachment and trauma.
It is clear that adoption can be transformative for many children. But it must be the right option for the right child at the right time. Good decisions need to be made about children as early as possible. The government's vision is to 'radically reform the children's social care system' and to structure reforms around three areas: people and leadership, practice and systems; governance and accountability. There is a need 'to focus relentlessly on front line practice. We need all services to deliver high quality, evidence based decisions for children every time'.
All of this sounds great but misses the fundamental point. If your foundations are not sound, you can build as fancy a castle as you like; at the first strong wind it will fall. The message from front line social workers, time and time again is that they are overworked to the point of physical and mental breakdown. Case loads are simply too high to permit proper evaluation, analysis and reflection. This won't change just because the government ministers are looking at it, however intently. Things change when you identify what is going wrong and take active steps to deal with it.
What steps are proposed here to deal with the fact that it is impossible for a social worker who is asked to juggle an unmanageable case load, to deliver 'high quality evidence based decisions for children every time' ?
The government proposes:
to launch a new development programme to support social workers to achieve and demonstrate required knowledge and skills and have their specialist knowledge recognised;
publish a new Specialist Knowledge and Skills statement setting out exactly what social workers making permanence decisions need to know and be able to do.
This is a level of magical thinking that is simply embarrassing in a government document. You can set out as many statements as you like telling people what they should be doing, but if those on the ground who are supposed to be 'doing' are prevented from 'doing' by a harmful working environment then decisions about children will continue to be made in the absence of proper analysis.
The law versus the Government.
The government just doesn't seem to understand the law and how it operates. That is clear to me when I look in more detail at these proposals for a programme to 'sharpen up' social workers, at para 3.34. The 'robust programme' they want to develop to support social workers to 'develop or sharpen skills' includes:
building skills to ensure that court material is well prepared and clearly argued and developing social workers' skills in presenting and defending cases in court effectively.
It's TOO LATE to do anything about the evidence once it gets to court. This is not simply shutting the stable door after the horse has bolted, but after its been sent to the knackers yard and turned into glue.
The Ministers seem to think that the local authority's case unravels in court because it is challenged in court. However, a poorly prepared case has already collapsed by the time it gets to court; the court process simply shines a light on its demise. No matter how fancy the statement of skills expected of a social worker, silk purses are not generally made from sow's ears.
However, the government just doesn't seem to 'get it'. The general view in this policy paper is that the judiciary share responsibility for the down turn in adoption orders after 2013 following the judgment of the President in Re B-S. That is despite the very clear subsequent reiterations that Re B-S did not change the law. And indeed it did not. The trenchant criticisms of the President were not directed at the law, but the failure of social workers and lawyers to apply it properly and consistently.
The law around adoption has always been clear. Adoption represents the most serious interference the State can impose on family life; it removes the legal status of the birth family and makes the child a member of another.
Thus, a child can only lawfully be adopted when there is no other realistic option. This is the essence of 'proportionality' under Article 8 of the ECHR. Not only is adoption the 'last resort' but the State has a positive duty before considering adoption to keep the family together, by offering help and support where possible. The European Court has issued a number of judgments making it very clear what is required by the positive obligations pursuant to Article 8 – see Soares de Melo and SH v Italy.
For further consideration of the necessary legal principles, see the post 'When can the court agree adoption is necessary' ? [This post also deals with the implications for decisions about adoption of the 26 week timetable in care proceedings – see edit below]
What was going wrong was not that the law was unclear – but that the analysis of children's circumstances and applying the law was often poor. I have discussed this problem at length in this post – Achieving best evidence and use in Children Act cases. The fundamental point I make is that proper analysis and assessment takes not merely knowledge, expertise and experience but time.
The policy paper may well be right, I haven't studied all the relevant research in sufficient detail to confidently assert one way or another. Maybe adoption is always the best option for most children and we should be making sure we have as many of them as possible as quickly as possible.
But there are few hurdles to jump in the meantime. Simply saying 'full steam ahead' for non consensual adoption, is not going to find favour with either domestic or European law. We cannot simply ignore the demands of Article 8 of the ECHR. There are obvious and immediate tensions between the cry of 'more adoptions more quickly' and the positive obligation upon the State to support families to stay together.
How does the government seek to reconcile these tensions? We don't know because they don't say. A policy paper that simply discusses its vision for adoption in isolation of what the law demands, is a useless distraction.
If the Government fights the law, the law will win – eventually. The Government's only legitimacy is that afforded to it by law. It will not be able to resile from Article 8 without enormous effort. But the battle will be long and expensive. And again the children are the ones who will suffer.
EDIT – but this is all about children on placement orders – so what's the problem?
There is a view expressed that the 'push' for adoption will not corrupt or obscure the decisions made about children at an early stage because the government is focusing on children already subject to placement orders. Therefore the proper decisions have already been made about their future with their birth families.
I used to agree with this. I don't anymore. Particularly not now that care proceedings are limited by statute to 26 weeks. I think there is at least a very real risk that this ideological push for adoption is going to impact on decision making in care proceedings. Cases are going to be 'rushed through' with a particular end in mind.
This is a potential breach of Article 8. Fair enough, if that is what you want to achieve, if this is what you think is proportionate. But don't pretend you are doing something else. Be honest about what you think is important – and be prepared to take the consequences.
For example, see this discussion on Twitter from 2014.
I have historically argued quite hard against the existence of deliberate and malicious 'conspiracies' to remove the children from the working classes and hand them over to the middle classes. Government – you are not helping me.
This entry was posted in Other thoughts and tagged Adoption: a vision for change, Article 8, policy paper on March 28, 2016 by Sarah Phillimore.
The Judgment of the European Court against Portugal – Soares de Melo
The dangers of 'absolutism' when considering the 'interests of the child'.
Many thanks to Clare Fenton Glynn for alerting me to this recently decided case in the European Court – only a French version of the judgment is so far available but I have run it through Google Translate and this seems a pretty good translation.
Summary of the facts and decision
The case involved a family with (eventually) ten children who were first involved with Portuguese social services in 2005. There were concerns that the children were neglected primarily due to the parents' poverty and the father's absence from the home. Alarmingly, the mother was expected to undergo sterilisation by tubal ligation as part of a package of measures set out by social workers to improve the family's position. By 2012 nothing much had improved and the Portuguese state took measures to have the youngest 8 children adopted – then aged 6, 5, 3, 2 years and 7 months.
The mother argued that the only reason to justify the adoption was the family's poverty; there was no evidence that either parent had abused the children and there were strong emotional ties between family members (para 77). Further, the family had not received adequate help and support (para 78) and it was unacceptable to expect the mother to agree to be sterilised (para 79). There were complaints about lack of contact with the children (para 80) and that the parents were prevented from being able to participate effectively in the proceedings (para 81). The final objection was that the family court relied solely on evidence from social workers and should have had expert evidence to assess emotional issues relating to the children (para 81).
The findings of the Court are set out from paragraph 88. It emphasises the principle that a child can only be removed from his family if it is 'necessary'. The State is under positive obligations to keep a family together. The Court found that the family had not been given sufficient support (para 106). With regard to the requirement that the mother be sterilised, the Court declared that to impose such a medical procedure on a person without their consent was incompatible with the freedom and dignity of that person. Less intrusive contraceptive arrangements could have been considered (para 111).
The Court found a clear violation of Article 8, ordered payment of EUR 15,000 in damages and that the Portuguese authorities reconsider the children's situation and take the appropriate action.
This case is significant in particular for the last 2 paragraphs of the concurring opinion of Judge Sajo:
Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to "be together" (see in this regard the judgment Gnahoré cited above).
The unilateral and absolutist understanding of the concept of the child's interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child's interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by "saviors". To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.
The original judgment in French.
For further detailed commentary, see this post from the blog Strasbourg Observers.
The English translation is set out below.
CASE SOARES DE MELO c. PORTUGAL
(Application No. 72850/14 )
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Melo Soares c. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Iulia Motoc Antoanella, Judges,
and Françoise Elens-Passos, Clerk section,
Having deliberated in private on 26 January 2016
Delivers the following judgment voic i, adopted on that date:
1. At the origin of the case in an application (No. 72850/14 ) against the Portuguese Republic and one national of Cape Verde, Ms. Liliana Sallete Soares de Melo ( "the applicant"), referred to the Court 5 December 2014 under Article 34 of the Convention Protection of human rights and fundamental freedoms ( "the Convention").
2. The applicant was represented by MC're Almeida Neves and P. Penha Gonçalves, lawyers in Algés. The Portuguese Government ( "the Government") were represented by their Agent, Ms MF da Graça Carvalho, Deputy Attorney General.
3. The applicant complained of a breach of his right to respect for family life as guaranteed by Article 8 of the Convention, due to the application of institutionalization measuring seven of his children for their adoption.
4. On 17 February 2015, pursuant to Article 39 of the Rules, the Court asked the Government to implement interim measures to allow access by the applicant to his children and restoring contact between them time ruling on the case. It also decided that the application should be given priority, pursuant to Article 41 of the Rules.
5. On 1 April 2015 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1977 and lives in Algueirão-Mem Martins.
7. She is the mother of ten children:
– S., a girl, born in 1993,
– E., a girl, born on 20 June 1995
– I., a girl, born on 27 August 2001
– M., a boy, born July 21, 2004
– Y, a boy, born August 22, 2005
– IR, a boy, born October 10, 2006
– L. and S., a boy and a girl, twins, born on 18 September 2008,
– A., a boy, born November 13, 2009, and
– R., a girl, born November 25, 2011.
A. On the procedure for promotion of the rights and protection of children
1. The procedure before the child welfare committee and youth Sintra
8. In 2005, the situation of the family was reported to the Committee of Protection of Children and Youth (Comissão de crianças e jovens proteção) ( "the CPCJ") Sintra the ground that the applicant was unemployed for four years and that the children's father was polygamous and often away from home.
9. On 4 January 2007, pursuant to Article 55 of the law on the protection of children and youth at risk (lei proteção das crianças e jovens em perigo) ( "the LPCJP"), establishes the CPCJ agreement to promote the rights and child protection ( "protection of the agreement") with the applicant and spouse concerning minors E., I., M., Y. and IR for a period of one year. This agreement had read the relevant parts in this case:
"1. The mother will retain custody of minor E., I., M., Y. and IR She will care for them, their livelihoods and ensure their education, training, health and all other interests ;
2. The mother will include:
a) ensure the attendance and punctuality of children in school;
b) ensure the hygiene and organization within the home;
c) ensure routine medical visits or emergency;
d) Ensure that children M., Y. and IR attending children's structures;
e) (…) seek gainful employment in order to guarantee its financial autonomy. It should present to the entities in charge of the support of this measure evidence about it.
3. The father will have to ensure that the mother meets the above commitments.
4. The father will continue to contribute financially to pay the fee structures for children and primary needs of children.
5. (…) the parents agree to cooperate and collaborate with social workers, accepting their guidelines, recommendations, suggestions and proposals aimed at maintaining living conditions, comfort, and well – being of Defense interests of minors. "
10. On an unspecified date, the Agreement was approved by the court.
11. On 22 May 2007, a social worker visited the family and found that the apartment where she lived was filthy and that the supply of running water and electricity was cut off for two months due to non-payment of bills .
12. On 31 May 2007 the CPCJ received a new alert because of truancy of I. who was related to the fact that it had to look after her brothers and younger sisters. That same day she hired a promotion procedure and protection of the rights of children and youth at risk ( "the protection procedure") in respect of children S., E., I., M., Y. and IR
2. The proceedings before the Family Court of Sintra
13. On 26 September 2007 the CPCJ sent the file to the prosecutor's office at the Family Court of Sintra because of lack of cooperation from the applicant in the procedure of protection framework in place. The prosecutor requested the opening of a procedure for the protection of children E., I., M., Y. and IR on the grounds that the applicant does not have adequate material conditions and that she neglected the children. From that moment, the family was followed by social services team with court (Equipa de crianças e jovens do Instituto da Segurança Social cupboard ao Tribunal) (the "ECJ") of Sintra.
14. The applicant and her husband were heard, as well as older children and social workers who had accompanied the family. The family home visits also took place.
15. By order of 21 December 2007, the Family Court decided the implementation of a support measure for parents against children E., I., M., Y. and IR (medida de apoio junto dos pais). This measure was extended several times.
16. On 24 September 2008, during a visit to the family home, social services saw that the living conditions were still precarious.
17. A social worker was sent to the applicant to teach him to manage his home, to ensure hygiene and organization of home and care for her children.
18. On 25 June 2009 the court held a hearing pursuant to section 112 of the LPCJP. During this hearing, after taking into account the recommendations of social workers in charge of accompanying the family, the following clauses were added to the protection agreement:
"1. [Parents should] include the IR minor in a facility for children in the next school year.
2. The father will begin paid work and regularize the situation with social security.
3. The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation.
4. The spouses must prove that they actually care for their regularization in the country.
5. Parents must provide the documents required for the study of a potential financial support.
6. Parents must present someone in their family network and / or social may constitute effective support for the family; that person must then appear before the team and / or the court to be coresponsabilisée. "
Subsequently, CPCJ asked expanding the protection procedure for children L., and A. MS
19. On 9 September 2009, social services carried out a visit to the home of the applicant.
20. On 10 September 2009, E., who was 13 years old and who was pregnant, was received in a temporary reception center to assist women. October 24, 2009, she gave birth to a child who died December 15, 2009.
21. As to S., who was not living with the family for some time, she returned to the family home in October 2009. Aged 16, she gave birth to a daughter December 31, 2009.
22. In December 2009, the ECJ in charge of the case gave a progress report to the court. It stated that the applicant and his spouse had not complied with the commitments made under the protection agreement and include:
– IR that the child was still not enrolled in an institution for children;
– That the father had not rectified the situation with social security;
– That the mother had not proceeded with the operation of sterilization by tubal ligation she had taken any family planning because it had just given birth to another child, a year after giving birth to Twins ;
– That his last pregnancy had not been a medical monitoring;
– The parents were still unlawfully in the country;
– They did not submit their individual family or social network to help them care for children.
23. On 5 February 2010, the ECJ carried out a visit to the family home. She then gave a report to the court with the following observations:
– Vaccinations of Mr L. and MS were outdated;
– The father had reported receiving 366 euros (EUR) of monthly income;
– The applicant had no income;
– The family received 393 EUR per month family allowance;
– The irregular situation of certain members of the family was an obstacle to obtaining social allowances;
– The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
24. By order of 3 March 2010, the Family Court decided the expansion of the protection procedure for children L., and A. MS (about R., enlargement was pronounced by order of 5 January 2012).
25. In June 2010, a social worker was sent to the family to help in the care of the home. For six weeks, she went three to four times a week at the applicant's home to teach her to organize her home. It also helped him to move to another apartment.
26. On 23 August 2010, the ECJ introduced a report that:
– The father still had not rectified the situation with social services;
– The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation;
– Parents had still not presented with the documents necessary for the study of their financial situation;
– No person had shown available to provide support to the education of children;
– E. resumed his studies and was passed to the next level, but she continued to help her mother support the family remaining;
– I. succeeded his school year;
– Mr. Y. and did not attend school regularly;
– IR and A. were not attending the nursery and stayed home.
27. The court scheduled a hearing on 23 September 2010, but the parents are not comparurent.
28. A new hearing was scheduled for 26 October 2010, at which only S. appeared. During the hearing, it stated that the family situation has improved.
29. In December 2010, the ECJ gave a new report to the court, noting in particular:
– That E. had stopped going to school;
– That I still had not been entered in the register of civil status and does so enjoyed no social grant;
– That Y. and IR were often dirty and they ended up showering in kindergarten;
– There was no dialogue between the family and school;
– The twins were placed with nurses, they obviously lacked health care and they were not properly dressed compared to the seasons;
– Vaccinations of A. were outdated.
30. The ECJ gave a new report on 24 June 2011. This document stated that:
– The family had moved to another apartment whose conditions had been assessed, the applicant did not open the door of his home social workers;
– E. went to school, but continued to look after her brothers and sisters at home;
– I was still not registered in the register of civil status and does not have an identity document;
– The children's father continued to be absent.
31. At an unspecified date, the prosecution presented its written submissions (alegações escritas) requiring the application of a measure of autonomy support (medida de apoio para a autonomia de vida) for a period of eighteen months against E., docking measure long-term institution (medida de acolhimento institucional duração longa) in respect of I., and Mr. Y ., and an investment of IR measurement, L., S., A. and R. at a person selected for adoption or in an institution for adoption (medida de confiança has selecionada pessoa para a adoção or has Instituição com vista futura adoção) on the basis of Article 35 § 1 d), f) and g) of the LPCJP.
32. On 26 January 2012 the court held a hearing at which neither the applicant nor her husband comparurent. During this, the ECJ stated that the situation of the family was still critical since the agreement was still not respected. She noted in particular:
– The twins were no longer in the manger-payment of hospitality expenses;
– That the eldest child continued to look after her brothers and sisters;
– That I was still not registered in the register of civil status.
33. On 16 May 2012 the court held a hearing (debate judicial). During the latter, the applicant asked the court not to remove him custody of his children on the grounds that she had great affection for them, it does not mistreated and that they were all his life.
3. The judgment of the Family Court of Lisbon North – East – Sintra of May 25, 2012
34. On 25 May 2012, the Lisbon North Family Court of – East – Sintra (new name of the Family Court of Sintra) gave judgment. He decided the application:
– A support measure of autonomy for an eighteen-month period with respect to E.;
– Of the applicant support measure for a period of one year for I., under Article 39 of the LPCJP;
– A child placement measurement M., Y., IR, L., S., A. and R. in an institution for adoption under section 38-A of LPCJP.
Stating that the latter measure would remain in force until the adoption was imposed pursuant to Article 62-A of LPCJP the court declared the forfeiture of parental rights of the applicant and her husband vis- a-vis Mr. Y., IR, L., S., A. and R., and the prohibition of contact with the latter, pursuant to Article 1978-A of the civil code.
To base its decision, the court took into account the reports of the CPCJ and the ECJ. The reasons for the decision read as follows:
"(…) It appears from the facts considered proven that the father is completely absent and the mother is unable to exercise his mother function as evidenced lack of sanitation, food, health care and supervision, the use of inappropriate clothing to the seasons, neglect to include some of the children in a residential institution for children, lack of school support for these and the lack of monitoring of adequate family planning.
In particular, it should be noted that the mother did not register her daughter I. in the register of civil status. This has the consequence that [the child] has no legal existence and can not benefit from social grants (…).
Regarding the lack of hygiene, it has been proven that children were dirty, [they were suffering from] a lack of personal hygiene and clothing, the kindergarten had allowed and Y. IR to shower in the facility, the comrades of I. refused to sit next to her because of its unpleasant odor and the children slept on mattresses soiled with urine (…).
Regarding the lack of hygiene of the apartment where the children lived, it appeared from various visits to the home he was dirty, the children were all sleeping in the same room, the remaining room was used to cram clothing and other products, and sometimes water and electricity were cut (…).
As for the lack of health care for children, we must first address the lack of medical monitoring of pregnancy, and lack of necessary medical consultations and vaccinations required (…).
Regarding the lack of supervision, it appears that the mother leaves bare son outgoing electrical sockets, windows are accessible to children, that pregnancies S. and E. occurred when they were 16 and 13 years, that I, who is 10, left alone with other children to care for them in the apartment, the door is locked (…).
The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).
The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
The applicant persisted in its refusal to sterilization by tubal ligation (…).
Finally, as to the lack of adequate family planning, it is important to note that, contrary to the commitment made on 25 June 2009 under the protection agreement, the mother has not submitted sterilization by tubal ligation and that since the original agreement to date, four children were born (…).
Certainly the mother asked during the hearing that the children not be removed because she did not mistreated, she had tenderness for them and they were all his life, reflecting a certain affection for them.
However, the record contains no indication that would suggest she or the children's father are able to provide a satisfactory response in terms of availability, commitment and collaboration to accomplish the relative function.
In addition, at least since the year 2007, the lives of children is more assured with the help of third parties (food bank, clothing donated by private individuals and institutions) than parents who do not seriously seek ways subsistence for themselves and their children.
Because of their irregular situation, minor parents do not even benefit from the social welfare benefit.
35. On 8 June 2012, the children's placement decision was implemented on Y, R, L, MS, A and R, then respectively aged 6 years, 5 years, 3 years, 3 years, 2 years and seven months. The measure was not implemented with respect to Mr. because it was not at the family home at the time of child removal.
36. On 11 June 2012, the applicant and her husband appealed against the judgment before the Court of Appeal of Lisbon. Invoking the best interests of children, they asked that the execution of the judgment was suspended until the end of the procedure. They then alleged:
– That this separation might jeopardize the well-being of children;
– I. their daughter had meanwhile been registered at the civil status;
– They had not considered the submissions that had been made by the prosecutor and that they had therefore been able to respond;
– They were not represented by a lawyer before the Family Court;
– They had been informed of the date of the court hearing after having contacted the Registry by telephone;
– There were no reasons other than their state of economic deprivation to justify the application of the protective measures they considered to be the most serious in terms of their children;
– The measure of placement in an institution for the adoption on children M., Y., IR, L., S., A. and R. was disproportionate to what was alleged against them and due to, according to them, the absence of abuse or violence against them and the existence of strong emotional ties between the applicant and children;
– That the assessments of the family situation were contradictory, the ground that a measure of support to the applicant had been applied in respect of two older while the most severe protection measure had been applied last seven;
– That the applicant was forced to commit to undergo sterilization operation by tubal ligation and the fact of not having taken this commitment had been held against him to justify the protective measures applied against children.
37. By an application dated 19 June 2012 the applicant requested the court information on the situation of children. She also informed the court that she had started a job and she had registered her daughter I. in the register of civil status of Sintra.
38. The action brought by the applicant and spouse was not welcomed by the Family Court, which held that it was brought outside the time limit. The applicant challenged the decision of the court before the Court of Appeal of Lisbon and in the Constitutional Court. On 10 May 2013, it upheld his appeal, stating that the appeal had been brought within the time limit.
39. On 1 July 2013, the applicant requested the court to suspend enforcement of the judgment in order to avoid breaking the family bond between her and the children on the one hand, and between them, on the other.
40. On 11 October 2013, she asked the Court of Appeal of Lisbon to apply provisional measures in order to have access to her children.
4. The judgments of the Court of Appeal of Lisbon
41. At an unspecified date, the Court of Appeal of Lisbon, sitting as a single judge, delivered a judgment confirming the judgment of the court in Lisbon Family Affairs Northeast – Sintra as well as the facts found by the trial.
As for sterilization, Lisbon Appeals Court held as follows in the part of the established facts:
The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).
The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation.
We accept the facts.
As regards the plea of failure to notify the prosecution's submissions, the Court of Appeal considered that they had been sent to the address that the applicant had indicated to the court as part of the procedure, they were returned to the court with "unclaimed" (não atendeu) and that the applicant had not proved that they had not been brought to its attention.
The plea of lack of abuse against children and the existence of emotional ties, the Court of Appeal held as follows:
"(…) The absence of abuse may be the same fruit of the lack of vis-à-vis child care, and a" food affection "(carinho alimentar) minimal or no can also be neglect. The argumentation seems therefore misleading.
That he reflected in the facts that were considered as? We fear so.
The facts considered proven amply demonstrate that children have not benefited from their parents' minimum conditions of dwelling [and] physical and psychological security, a lot of waste covering the soil, water and electricity is cut for two months due to default. In addition, vaccinations [children] are outdated. The mother leaves the house and lets his older daughters take care of [their] younger brothers, the latter thus being prevented from going to school. The mother has never taken steps to register in the register of civil status daughter I. It is separated from the children's father. This is sufficient to demonstrate the moral neglect. Added to this is the fact that [the mother] does not have and does not demonstrate to have the resources to give children a dignified life, which is enough to operate [the machine] court.
(…) Lack of parental involvement to ensure material comfort to children is in itself great violence that justifies the decision at first instance. Furthermore, it can not invoke the principle of primacy of the natural family.
42. On 26 December 2013, the applicant challenged that decision before the panel of three judges (conferência) the Court of Appeal of Lisbon. March 27, 2014, it confirmed word for word, by the process of copying and pasting, the judgment had been rendered.
43. On 21 April 2014 the applicant appealed on points of law to the Supreme Court. It alleged in particular:
– She had not been aware of the submissions made by the prosecution;
– That the prosecution had requested the application of a placement order in institutions of her children and Mr. Y., that the court had meanwhile ordered the institutionalization of these for their adoption and that he had thus violated the adversarial principle;
– That the Court of Appeal had failed to rule over the developments, namely in particular, she said, she worked since 12 June 2012 and that it had conducted the registration of her daughter I. the register of civil status;
– She had been forced to commit to undergo sterilization by tubal ligation as part of the agreement with the social services, and that it violated his fundamental rights and breached Article 55 § 2 of the LPCJP;
– That the fact of not keeping its commitment had been considered by the court as an aggravating circumstance and that had motivated the placement of children for adoption;
– That the appeal court had not responded to its request for access to his children;
– The act about which it was not proportionate to what was criticized and had been executed force with police intervention, while his appeal was still pending.
The applicant argued further that the interpretation that was made of Articles 35 § 1 g) and 55 § 2 of the LPCJP did not comply with the Constitution and that the non-mandatory representation by a lawyer statement, according it in section 103 of the LPCJP went against the right to a fair trial.
44. By order of 22 June 2014, Lisbon Appeals Court admitted the appeal, without giving it a suspensive effect.
45. Meanwhile, on 20 February 2014, the applicant had submitted an application to the Higher Judicial Council, in which it complained of a lack of response to all requests for access to her children and an inability to visit thereof.
5. The judgment of the Supreme Court of May 28, 2015
46. On 28 May 2015 the Supreme Court delivered a judgment in which it dismissed the applicant's appeal on the basis of the facts established at trial and confirmed by the Court of Appeal of Lisbon. As regards the plea of failure to notify the prosecutor's submissions in the proceedings before the Family Court, it held:
– That the applicant had not proved not to have actually received the letter from the court containing the requisitions;
– It had presented February 28, 2012 a request to inspect the file of the proceedings that the court had granted the application and that, consequently, the applicant was well aware of requisitions by that route;
– The date of the hearing notification letter was sent to the applicant's address was on file and had been returned marked "unclaimed";
– That the record that a court clerk had communicated by telephone the date of the hearing to the applicant and that it had then requested its postponement, which was refused.
The Supreme Court held further that the Appeal Court had not mentioned in its judgment of the commitment by the applicant to undergo a sterilization operation, it was not based on the -ci and it was therefore not appropriate to refer to it and that the new elements mentioned by the applicant in the court of appeal had been taken into consideration by that court in its judgment. As for sterilization, the Supreme Court held as follows in the part of established facts:
47. As to the application of the institutionalization of children in placement measure for adoption, the Supreme Court observed that it could not rule on the compatibility of the measure with the law and not on whether or appropriateness thereof. It found that the facts had been established were considered sufficient and that therefore the legal provisions at issue, namely Article 1978 of the Civil Code and Article 34 of the LPCJP, were not violated.
As regards the complaint relating to a lack of the appeal court response to requests for access to his children made by the applicant, the Supreme Court held that:
"(…) The regime demanded proves visits and found inconsistent with the contested decision and in conflict with it, [that decision] providing institutional care for adoption, with disqualification parental authority, [that disqualification is] also in line with the provisions of Article 1978-A of the civil code (…) "
She concluded:
"Therefore, in view of the established material reality, there is a particularly dangerous situation when the biological family is unstructured, that the father is absent from the lives of children and the mother demonstrated a great emotional instability, unstable employment and obvious negligence in relation to care due to minor children on hygiene, health, food, housing and education. Accordingly, the decision of the courts in the light of Article 1978 § 1 of the Civil Code and Article 35 § 1 g) LPCJP, to opt for the institutionalization of measures to adopt and , consequently, for the loss of parental authority over minor children, under Article 1978-A of the civil code, is not illegal. "
48. On 16 June 2015 the applicant lodged a complaint before the panel of three judges of the Supreme Court. She requested a review ( reforma ) of the judgment, citing several grounds for revocation and accusing the Supreme Court for not having ruled on the question of the lack of notification of the prosecutor's submissions and the date of hearing before the family court.
49. In a judgment of 9 July 2015 the panel of three judges of the Supreme Court dismissed the applicant's appeal on the grounds that the notification of the date of the hearing had been made to the applicant's address that appeared in the record, and that the applicant had, in fact, access to submissions and evidence which appeared to support them since it had consulted the case file.
50. The applicant challenged the judgment in the context of an appeal for annulment by which it contested consulting the case file. The Supreme Court rejected the claims by its judgment of 17 September 2015.
6. The proceedings before the Constitutional Court
51. Subsequently, on 5 October 2015 the applicant lodged an appeal with the Constitutional Court, arguing the unconstitutionality of several provisions of the LPCJP and Article 1978 of the Civil Code. She complained in particular:
– The interpretation by the courts of Articles 35 § 1 g) and 38-A of LPCJP, who would have considered that the care order for the adoption could be applied even if the parent had not read the prosecution's submissions requesting such action and that the notification could be presumed;
– The interpretation by the courts of Articles 35 § 1 d) and g), 45 and 55 § 2 of the LPCJP that would have felt that the non-compliance with the commitment by the applicant to undergo sterilization could be a aggravating circumstance and motivate the application of institutionalization measure for adoption;
– The non-mandatory representation by a lawyer during the proceedings before the courts of first instance, which was laid down by Article 103 of the LPCJP.
52. According to the latest information received, which date back to the 1 st December 2015, the proceedings before the Constitutional Court is still pending.
B. On the intervention of the Court under Article 39 of the Rules
53. Meanwhile, by a fax of 19 November 2014, the applicant had, on the basis of Article 39 of the Regulation, referred to the Court a request to obtain visiting rights to her children who had been placed in care for their adoption.
54. On 17 February 2015, the Court invited the Portuguese Government, under that provision, to adopt interim measures to allow access by the applicant to his children and the restoration of contacts between them for the duration of the proceedings before it.
55. On 5 March 2015, the Family Court had authorized the applicant to resume contact with his children.
56. Since 15 March 2015, the applicant makes weekly visits to his children in the three institutions located in Sintra, Cascais and Alverca, where they have been placed.
II. THE MATERIALS AND THE INTERNATIONAL LAW RELEVANT
A. The concluding observations of the UN Child Rights Committee concerning the third and fourth periodic reports of Portugal
57. Pursuant to Article 44 of the Convention on the Rights of the Child, the UN Child Rights Committee considered the third and fourth periodic reports of Portugal, submitted in one document (CRC / C / PRT / 3-4) at its 1860 th and 1861 th meetings (see CRC / C / SR.1860 and 1861), held on 22 January 2014, and adopted at its 1875 th meeting (CRC / C / SR .1875), held on 31 January 2014, its concluding observations on those reports, the relevant parties in this case are as follows:
"39. While welcoming the existence of a wide range of social assistance programs, including that of emergency social assistance program, the Committee is concerned that many families, especially those found in poverty, do not receive appropriate assistance to fulfill their responsibilities as parents raising children, especially in terms of financial, educational early childhood accessible and youth protection children. The Committee is particularly concerned about the situation of children in families affected by the current economic crisis, who need social measures of positive discrimination, especially single-parent families, families with disabled children and families living in persistent poverty.
40. The Committee recommends that the State party strengthen its efforts to provide appropriate assistance to parents and legal guardians to enable them to fulfill their responsibilities of parents raising children, especially when they are in situations of poverty. It also recommends that the State party ensure that no group of children lives below the poverty line. The Committee further recommends that the State party strengthen the system of family benefits and family allowances as well as other services such as counseling and family counseling, as well as child care and early childhood education, to provide support to the families of two or more children, families with disabled children and families living in persistent poverty, according to the guidance document of the European Commission concerning custody and childrearing.
41. The Committee welcomes the adoption of the law on the protection of children and youth at risk, the steps taken to reunite families and efforts to promote the reduction of institutionalization, in particular by increasing the number of children living in group homes. However, the Committee expresses concern:
a) small number of reception and placement of children in families of families, and facing the widespread use yet to institutionalization, especially the younger children;
42. The Committee recommends that the State party to implement the following measures – after taking into account the Guidelines for the Alternative Care of Children annexed to resolution 64/142 of 18 December 2009 of the Assembly UN General:
a) Increase support to biological families to avoid investments in alternative structures; strengthen the provisions relating to the protection within the family, such as the extended family, placement in family systems and investment institutions; take all necessary measures to ensure that alternative care for young children, especially children under 3 years, is part of a family setting;
57. The Committee welcomes the decision of the State party to increase allowances and family benefits for vulnerable households with children, that is to say, single-parent families, families with two children or more, families with disabled children and families living in persistent poverty; it welcomes the expansion of the meal program in schools and the implementation of emergency social program in 2011 in order to minimize the effects of the financial crisis on vulnerable households. The Committee is concerned about the high level of poverty among children and the implementation of austerity measures that have adverse effects on families, which greatly increases the risk of exposing children to poverty and affect their enjoyment of many rights under the Convention, including the rights to health, education and social protection.
58. The Committee urges the State party to intensify efforts to address both the immediate and the long term, the high level of child poverty, including through public policy and a national plan the fight against child poverty. These policies and this plan should consist of the establishment of a coherent framework consisting of priority measures to fight against the exclusion of children with specific and measurable objectives with clear indicators and deadlines, and enjoying a sufficient economic and financial support.
B. Domestic law
1. The Civil Code
58. The relevant provisions in the case of the Civil Code in force at the relevant time, read as follows:
Placement for adoption
"1. For the purposes of an adoption, the court may place the minor in a couple, in one person or in an institution where the affective bonds particular to filiation do not exist or are seriously compromised for the following reasons:
d) when the parents, by act or omission, or because of an obvious disability due to mental illness put at grave risk the safety, health, training, education or development of the minor;
2. As part of the review of the situations listed in the preceding paragraph, the court must consider first the rights and interests of the minor.
5. The judicial placement of a minor can be requested by the public prosecutor, the social security center in the minor area of residence, the person to whom the child was entrusted administratively, the director of the public institution or direction the private host institution.
Article 1978-A
effect (…) the extent (…) investment in a person selected for adoption or in an institution for the adoption
"Once (…) that the measure promotion and protection with investment in a person selected for adoption or in an institution for the adoption has been ordered, the parents are deprived of their parental authority. "
2. The law on the protection of children and young people at risk
59. At the material time, the LPCJP, governed by Law 147/99 of 1 st September 1999 in the version following the Law 31/2003 of 22 August 2003, established the regime and the promotion procedure for the rights and protection children and youth at risk ( processo de Promoção of direitos e proteção das crianças e jovens em perigo ).
60. According to this law, he meant by "child" a person under the age of 18 and "young" a person aged under 21 who requested the continuation of the intervention that was implemented before age 18 (Article 5 a)). Measures to promote rights and child protection were adopted by child protection committees or youth at risk or the courts (Article 5 e)). They aimed to remove children and young people to the danger they faced, to provide conditions for them to access their security, health care, education or training, promoting their development and allow them to physical and psychological rehabilitation in relation to any form of abuse or exploitation (Article 34).
61. The relevant parties in this case that Act read as follows:
"1. The intervention of commissions to protect children and young people ( comissões of proteção das crianças e jovens ) require the explicit agreement of the parents, legal guardian or person having custody of fact, the case.
"1. The promotion and protection measures are:
a) support for parents;
b) support to another family member;
c) placement in a person with a good reputation ( Idónea );
d) support for autonomy ( apoio para a vida autonomia );
e) foster care;
f) institutional care;
g) placement with a person selected for adoption or in an institution for adoption.
2. The promotion and protection measures are implemented, depending on their nature, open ( meio natural de vida ) or investment plan and may be decided provisionally.
Application jurisdiction measures to promote
and protect
"The application of measures to promote the rights and protection of the exclusive jurisdiction of protection commissions and courts; (…) "
Article 38-A
Placement in a person selected for adoption or in an institution for the adoption
"The measure of placement in a person selected for adoption or in an institution for the adoption, applicable when one of the situations specified in Article 1978 of the Civil Code is verified, consists of:
a) placement of the child or young person under the care of a candidate selected to the adoption by the competent social security body; or
b) placing the child or young person under the care of an institution for adoption. "
"The parent support measure is to provide for the child or young psychoeducational and social support and, if necessary, financial assistance. "
"1. When the measure provided for in Article 39 is applied (…), parents (…) can benefit from a training program aimed at improving parenting duties.
Support for autonomy
"1. The autonomy support measure is to bring directly to the young age of 15 years financial and psycho-social support and, in particular through training programs, to offer him terms that will enable to live alone and to gradually acquire a life of autonomy.
(…). "
institution Home Concept
"1. The welcome in institutions is a measure of placing the child or youth in a structure with facilities or a permanent host, and a team of workers that can guarantee [ the child or young] care consistent with their needs and bring [to it] conditions that promote their education, well-being and full development.
Promotion and Protection Agreement
"1. The promotion and protection agreement must include:
a) identifying the member protection commission or the [social worker] responsible for managing the project;
b) the period for which it is established and where it needs to be revised;
c) the declarations of consent or no objection necessary.
2. Shall not be established clauses impose undue obligations or imposing limitations to the operation of family life beyond the necessary steps to effectively rule out the danger factors. "
Promotion and Protection Agreement on measures in open
"1. The following shall in particular be included in the promotion and protection agreement establishing the measures to be implemented in an open environment:
a) feeding, hygiene and health care and comfort to provide the child or young by parents (…);
b) identification of the person responsible for the child or youth for the period during which it can not or should not be in the company or under the supervision of parents or the person to whom it was given;
c) school planning, vocational training, work and free time occupation;
d) the planning of health care, including medical consultations and child guidance, and the commitment to comply with the established guidelines and guidance;
e) financial assistance to be awarded, its terms and duration, as well as the entity responsible for its issue and the associated conditions.
placement measurement in a person selected for adoption
or in an institution for the adoption
"1. The measure of placement in a person selected for adoption or in an institution for the adoption lasts until the adoption is granted and is not subject to review.
2. (…) the natural family does not have the access.
Hearing of the holders of parental authority
"The parents, the legal representative and persons with de facto custody of the child or young person is compulsorily heard on the situation which led to the introduction and implementation, revision or termination, of the promotion and protection. "
"The judicial process of promoting the rights and protection of children and young people in danger, now designated as judicial proceedings promotion and protection, is the voluntary jurisdiction. "
"1. The parents, legal representative or the person having de facto custody of the child or young person may at any stage of the proceedings, to counsel or request the appointment of a lawyer for representation or that of the child or youth.
2. A lawyer must be appointed to represent the child or young when the interests [of it] and those of his parents are conflicting and, also, when the child or young person who seeks the sufficient maturity with the court.
4. At the hearing ( debate judicial ) recourse to a lawyer or the appointment of a lawyer is required to assist the child or youth. "
With the entry into force, scheduled for 8 December 2015, of the law 142/2015 of 8 September 2015, paragraph 4 of Article 103 shall read as follows:
"4. At the hearing, recourse to a lawyer or the appointment of counsel to assist parents is mandatory in cases concerning the extent provided in paragraph g) of paragraph 1 of Article 35, and is mandatory in all cases to assist the child or youth. "
"1. The child or youth, his parents, his legal representative or any person having de facto custody have the right to request the pleadings ( diligencias ) and produce evidence.
2. Written comments may be submitted during the hearing and the adversarial guaranteed.
3. The contradiction regarding the facts and the applicable measurement is always guaranteed in all phases of the proceedings, including during the conciliation aims to reach an agreement, and as part of the hearing where as provided in paragraph g) of paragraph 1 of Article 35 is applicable. "
Phases of the procedure
"1. The legal process of promotion and protection includes the instruction phase, hearing, decision and execution of the measure.
instruction Closure
"After hearing the public prosecutor, the court declares the instruction and close:
c) it clearly appears unlikely to reach a conciliation, he ordered the continuation of the procedure for a hearing and proceed to notifications pursuant to Article 114 § 1. "
negotiated Decision ( Decisão negociada )
"The judge summons to the hearing ( conferência ), for the purpose of obtaining a promotion and protection agreement, the Public Prosecutor, the parents, the legal representative or the person who has de facto custody [of the minor ], the child or young person aged over 12 years, and persons and representatives of entities that it believes the presence and consent to the relevant agreement. "
Hearing ( debate judicial)
"1. If it has not been possible to achieve promotion and protection agreement (…), the judge makes a notification to the Public Prosecutor, the parents, the legal representative or the person who guard [the minor], the child or young person aged over 12 years so that interested parties present in writing, within ten days their comments if they wish and (…) their means evidence.
2. The public prosecutor shall submit written comments and evidence if it considers the measure to be applied is that set out in paragraph g) of paragraph 1 of Article 35.
3. After receiving comments and evidence, the judge will set a hearing date and ordered that notification is made to appear to people.
4. With the notification of the hearing date is made available to parents, legal guardian or person having custody of [the minor] the prosecution submissions and knowledge of it and the memories the evidence requested. "
3. The Code of Civil Procedure
62. Article 1409 of the Civil Procedure Code, in force at the time, had the relevant parts in this case:
4. In voluntary jurisdiction procedures, representation by a lawyer is not mandatory in the appeal phase. "
IN LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
63. Relying on Articles 6 § 1, 8 and 13 of the Convention, the applicant complained of an infringement of her right to respect for family life due to the application of a placement order for the adoption to respect of his seven younger children and the ban for it to have access to them from the court judgment to the Lisbon family Affairs Northeast – Sintra on 25 May 2012. on that point, it states that introduced, unsuccessfully, various applications and appeals. It also complains that the courts based their decisions on the fact that it had not met its commitments to adequate family planning.
64. The Government rejected the applicant's argument.
65. Mistress of the legal characterization of the facts of the case, the Court considers it appropriate to consider the complaints raised by the applicant in terms of the single article 8 of the Convention, which requires that the decision-making process leading to measures of interference is fair and respects, as it should be, the interests protected by that provision ( Kutzner v. Germany , n o 46544/99 , § 56, ECHR 2002 – I, . Kříž v Czech Republic . (Dec.) n o 26634/03 , 29 November 2005, and Pontes v. Portugal , n o 19554/09 , § 67, 10 April 2012).
Article 8 of the Convention provides in relevant part in this case:
"1. Everyone has the right to respect for his life (…) family (…).
2. There can be no interference by a public authority with the exercise of this right except such as this interference is provided for by law and is a measure in a democratic society, is necessary (.. .) for the protection of health or morals, or the protection of the rights and freedoms of others. "
A. Admissibility
1. Arguments of the parties
66. The Government raised a plea of premature nature of the application on the ground that the applicant submitted after the judgment of the Supreme Court of 28 May 2015, an appeal to the Constitutional Court which is still pending. He believes that if the Constitutional Court granted the applicant's request on the various normative unconstitutionality allegations raised by it in its appeal in memory, the case will be sent back to trial and that therefore the Supreme Court is not yet final.
67. The applicant argues that the appeal of unconstitutionality before the Constitutional Court can not be seen as an effective remedy to exercise under Article 35 § 1 of the Convention. She claims to have submitted his appeal to the Constitutional Court to prevent the investment decision of their children for adoption becomes final. In addition, indicating that there is the Constitutional Court no recourse against violations of fundamental rights equivalent appeal by amparo , it argues that this court can not rule on the character consistent with the Constitution of a standard or its interpretation by a lower court and can not therefore rule on the merits of a case has already been decided by the Supreme Court. It adds that even if the Constitutional Court gives a favorable response to its appeal, this court is not bound to order a referral of the case for a new decision on the merits. Finally, the applicant states that the withdrawal of his children was implemented June 8, 2012, that the violation denounced by it is already effective and that, therefore, the request is not premature.
2. Findings of the Court
68. The Court recalls that Article 35 § 1 of the Convention, it may not matter after the exhaustion of domestic remedies. Every applicant must have given the domestic courts the opportunity that this provision was intended to be afforded to Contracting States in principle: prevent or redress the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Moreira Barbosa v. Portugal (dec.), n o 65681/01 , ECHR 2004-V, and Cardot v. France , 19 March 1991, § 36, series A n o 200). This rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that the domestic system provides an effective remedy in respect of the alleged violation (see, for example, Selmouni v. France [GC], n o 25803/94 , § 74, ECHR 1999-V).
69. The Court further recalls that Article 35 of the Convention provides that only the exhaustion of remedies both related to the breaches alleged available and sufficient. These remedies should exist in a sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many others, Vernillo v. France , 20 February 1991 , § 27, series A n o 198, Dalia v. France , 19 February 1998, § 38, Reports of judgments and decisions 1998 – I, and . Vučković and others v Serbia (preliminary objection) [GC], no bones 17153 / 11 and 29, § 71, 25 my rs 2014).
70. The Court must apply the rule of exhaustion of domestic remedies, taking due account of the context: the safeguard of human rights that the Contracting Parties have agreed to set. It has recognized that Article 35 § 1 of the Convention must be applied with flexibility and without excessive formalism. It has further recognized that the rule does not accommodate an automatic application and is not an absolute one; to monitor compliance, it is essential to have regard to the circumstances of the case. This means that the Court must take realistic account not only of the remedies provided in theory in the legal system of the Contracting Party concerned but also of the general context in which they operate, as well as the applicant's personal situation ( Akdivar and others v. Turkey, 16 September 1996, § 69, Reports 1996 – IV).
71. The answer to the question of whether the individual complaint to the constitutional court is required under Article 35 § 1 of the Convention depends largely on the peculiarities of the legal system of the respondent State and the extent of skills of its constitutional jurisdiction. Thus, in a state where these skills are limited to a review of the constitutionality and the level of compatibility of legal norms, an appeal to the Constitutional Court is to exercise that where the applicant challenges a law or regulation as in itself contrary to the Convention ( Grišankova and Grišankovs v. Latvia (dec), n. o 36117/02 , ECHR 2003 – II). However, this remedy is not effective when the applicant complains that an error in the interpretation or application of a law or regulation which in itself is not unconstitutional ( Szott Medyńska-c . Poland (dec.), n o 47414/99 , 9 October 2003, and Smirnov v. Russia (dec.), n o 14085/04 , ECHR, 6 July 2006).
72. Turning to the present case, the Court first notes that it is undisputed that the constitutional complaint in Portugal shall relate to one "normative" provision and not a judicial decision ( Colaço Mestre and SIC – Sociedade Independente de Comunicação SA c. Portugal (dec.), No bone 11182/03 and 11319/03 , 18 October 2005).
73. It then observes that the applicant raised before the Constitutional Court several pleas of unconstitutionality of the interpretation given by the courts of certain provisions of LPCJP (paragraph 51 above) to denounce the disproportionate nature in his eyes the institutionalization of best of its children for adoption. Since this part of the constitutional complaint concerns the judicial decision itself and not on a normative unconstitutionality, it appears doomed.
74. As regards the plea alleging an illegal character in the Constitution of the absence of legal representation obligation, before the courts of first instance, parents of a child subject to a protection proceedings, the Court considers that it can not speculate on the admissibility and the potential outcome of this part of the appeal. Moreover, even assuming that the applicant obtains a favorable decision and that the case be sent back to trial, he must still submit his complaints of potential harm resulting from the contested measure, within the framework a civil action against the State for the purpose of obtaining compensation. Moreover, the Court considers that it can not require the applicant to wait longer that the Constitutional Court's decision, since the protective measure was executed on 8 June 2012, there is more three years already (see, mutatis mutandis , Guillemin v. France , 21 February 1997, § 50, Series 1997 – I).
75. In view of the foregoing, the Court considers it appropriate to reject the Government's objection.
76. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and it also faces any other ground of inadmissibility, the Court declares it admissible.
B. Merits
a) The applicant
77. The applicant alleges that the measure of placement for adoption, applied in respect of seven of his children and performed with regard to six of them, constituted a disproportionate interference with his right to respect for family life. Contesting the facts considered proven by the domestic courts, she argues that her children were exposed to any physical or psychological violence and that their placement was based solely on his social precarious situations. She complains about the application of different measures vis-à-vis her children and says not understand why the support measure for parents has been applied in respect of her daughter I. whereas the road to adoption , harder in his eyes, was chosen for its youngest children.
78. Complaining that less drastic measures with regard to its youngest children were not considered, the applicant claims not to have received adequate social assistance from social services before the institutionalization of its children for adoption. It refers, as evidence, to the various reports on which the domestic courts have relied and believes they show that social services were deaf to her distress and she continued to struggle alone to provide for his family. She denies having ceased to work with social services, stating that it has received no visits from them the year before the application of the investment measure.
79. The applicant also complained of being pushed to agree to include in the agreement with the social services a clause under which it undertook to undergo sterilization operation while it believes such a move went against his culture and his Muslim religion. She says she accepted the inclusion of this clause because of her emotional state – in her brittle – at the material and to stop the relentless social services to which it was confronted. She is convinced that the withdrawal of his children was decided to punish her for not having been sterilized and have even given birth to four children. It states that it appears from the judgment of the Family Court in which it had stressed that it was ultimately not sterilized despite its commitment to undergo such an operation.
80. Next, the applicant criticizes the forfeiture of parental authority and the prohibition of contact with and between his children in three different foster homes under the judgment of the Family Court. Indicating that the decision was not yet final and that the courts had recognized the absence of physical violence and the existence of emotional ties with her children, she argues that these restrictions have made it for additional punishment and that the 'were removed from her children. In the alternative, she complained of not having received any response from the authorities about the various requests made by it to have access to her children. She indicated that her youngest was six months old when he was removed and the immediate implementation of the measure and the absolute prohibition of contact were thus prevented the establishment of any link with it. She complains of not being able to see her children since the indication of provisional measures by the Court, ordered under Rule 39. It adds, in the alternative, as reports show that children responded enthusiastically to restoring contact with her.
81. At the procedural level, the applicant complains of not being able to participate effectively in the proceedings.
First, it states that it was represented by counsel until May 25, 2012, the judgment of the Family Court, and it was not before, and that in despite it believes the complexity of the procedure and the severity of its issues. It believes that it has therefore not been able to defend its interests, since it would have been possible to present its case, and the court did not allow effective participation in since the procedure would not have told her what was happening. On this point, she alleges, for example she could not attend the hearing various witnesses during the judicial debate on 16 May 2012.
Then she complained that the prosecution's charges were not brought to its notice, which would not have allowed him to understand the stakes in the proceedings and, in particular, the investment demand from children for adoption envisaged in the court order of January 26, 2012. in addition, it alleges that the family court to have applied the placement order against her seven younger children, namely M. Y, R, L., S., A. and R. whereas this measure had, she said, was requested by the prosecution vis-à-vis the last five.
Finally, the appellant criticizes the Family Court having relied solely on the reports of social services and to have ordered no expertise enabling it to assess its ability to exercise their parenting and assess the maturity and affective and emotional balance of his children. It further alleges that the evidence it submitted in support of its appeal before the court of appeal were not considered, that court, as the Supreme Court, being limited his statements to confirm the judgment of the family court without a critical examination of the facts. She claims to have suffered the procedure without ever having been able to bring any evidence in his defense.
82. Furthermore, the applicant requests the Court to order the continued visits to his children and between them.
b) The Government
83. The Government recognizes that the placement of children of the applicant institution for adoption was an interference with the right of the latter to respect for family life. It is, however, that the interference was justified having regard to the best interests of children on the grounds that they were in danger because of negligence on the applicant and her husband, and that the situation would have known no improvement despite the application of a measure of support to parents for several years.
84. As regards the necessity of the measure, the Government maintained that the father was absent from the home and that the applicant had shown great neglect of her children. He said that the family had followed since 2005 by social services and a more sustained since the agreement with the applicant in 2007, which led to the application of a support measure against relatives children. He added that this has brought social services to perform close monitoring of the family including through meetings and visits at home and at school. It states that, from 2010, the applicant ceased to cooperate with social services and has made it impossible to apply the measure of current assistance. He says the child institutionalization was then considered as a solution for the younger children and that this measure was applied only after other measures failed. He says, to base its judgment, the Family Court took into account the competing interests at stake and that it relied on the testimony of Social Workers, the applicant and spouse and the eldest daughter of torque, and the different social relations. It specifies that these reports had helped raise the following: a lack of health and safety at the family home; lack of medical care for children; a truancy of children; food and clothing deficiencies; administrative negligence, for example the lack of registration of one of the daughters of the applicant in the register of civil status and the irregular situation of the applicant in the country.
The Government also states that the applicant had not designated a person of the family circle may constitute a support for the family.
85. As regards the sterilization operation, the Government maintained that the applicant had deliberately engaged in 2009 to do such an operation within the framework of the promotion and protection agreement. He added that the aim was only to allow monitoring of a family planning program by the applicant and not to force it to a specific contraceptive method. In addition, it states that the courts had not taken this into account in their decision and that it therefore had no influence in the procedure: in this regard, he said that the Family Court noted in its judgment the lack of monitoring of family planning and not a specific method of contraception.
86. The Government concluded that the measure was appropriate, proportionate, and therefore necessary in a democratic society, and therefore did not violate Article 8 § 2 of the Convention. He believes it also notes the national margin of appreciation, as the authorities are better placed to determine the solution to be applied in relation to a concrete situation and that, consequently, the Court can not revisit the facts were considered as internally.
87. As regards the impossibility for the applicant to have access to her children, the Government explains that this follows from the very measure of placement for adoption, pursuant to Article 1978-A the civil code and Article 62-A of LPCJ.
a) General principles
88. The Court recalls that, for a parent and child of each constitutes a fundamental element of family life ( Kutzner , cited above, § 58): domestic measures hindering such constitute interference with the right protected by the Article 8 of the Convention ( K. and T. v. Finland [GC], n o 25702/94 , § 151, ECHR 2001-VII). Such interference breaches the aforementioned Article 8 unless it is "prescribed by law", pursues one or more legitimate aims under the second paragraph of that provision and was "necessary in a democratic society" for the ( Gnahoré c. France , n o 40031/98 , § 50, ECHR 2000 IX, and Pontes , cited above, § 74). The notion of "necessity" implies that the interference on a pressing social need and, in particular, proportionate to the legitimate aim ( Couillard Maugery v. France , n o 64796/01 , § 237, 1 st July 2004). In assessing the "necessity" of the measure "in a democratic society" and therefore should be analyzed in the light of the whole case, the reasons adduced in support of it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.
89. The fact that a child could be placed in a more beneficial environment for his education can not in itself justify the strength of removal from the care of their biological parents; such an interference with the right of parents, under Article 8 of the Convention to enjoy a family life with their child still has to be "necessary" due to other circumstances ( K. and T. , supra , § 173, and Kutzner , cited above, § 69). Moreover, Article 8 of the Convention imposes on the state of positive obligations inherent in effective "respect" for family life. Thus, where the existence of a family relationship is established, the State must in principle act to enable that tie to be developed and take measures to meet the parent and the child concerned ( Kutzner , cited above, § 61).
90. In consideration of the necessity of the interference, the Court will take into account that the design that has been the timeliness of intervention by public authorities in the care of a child varies from State to another depending on factors such as traditions relating to the role of the family and state intervention in family affairs, as well as the resources that can be devoted to measures public in this particular field. Still, the best interests of the child in each case takes decisive. We must also not lose sight of that national authorities benefit of direct contact with all concerned ( Olsson v. Sweden (n o 2) , 27 November 1992, § 90, Series A n o 250), often at the when investment measures are envisaged or immediately after their implementation. It follows from these considerations that the Court is not its task to replace the domestic authorities in the exercise of their regulatory responsibilities in matters of child care by the public authority and the rights of parents whose children were well placed, but to control the angle of the Convention the decisions they delivered in the exercise of their discretion ( Hokkanen v. Finland , 23 September 1994, § 55, series A n o 299 – A, Johansen v. Norway , 7 August 1996, § 64, Reports 1996 – III, and K. and T. , cited above, § 154).
91. The Court also recalls that although the border between the positive obligations and negative obligations of the State under Article 8 of the Convention does not lend itself to precise definition, the applicable principles are nonetheless similar. In particular, in both cases, regard must be had to the fair balance between the competing interests – those of the child, those of the parents and those of public order ( . Maumousseau and Washington v France , n o 39388 / 05 , § 62, ECHR 2007-XIII) – taking into account, however, that the child's best interests must be the paramount consideration (see, to that effect, Gnahoré , cited above, § 59) which, according to its nature and seriousness, override those of the parents ( Sahin v. Germany [GC], n o 30943/96 , § 66, ECHR 2003 – VIII). In addition, a family breakup is a very serious interference; a measure leading to this situation should therefore be based on considerations inspired by the interests of the child and of a weight and a sufficient strength ( Scozzari and Giunta v. Italy [GC], no bones 39221/98 and 41963 / 98 , § 148, ECHR 2000-VIII). The remoteness of the family context child is an extreme measure to which one should be used as a last resort. For a measure of this type is justified, it must meet in order to protect the child faces an immediate danger ( Neulinger and Shuruk v. Switzerland [GC], n o 41615/07 , § 136, ECHR 2010).
92. It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with these positive obligations under Article 8 of the Convention and the Court whether, in application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, taking particular account of the best interests of the child (see, mutatis mutandis , Neulinger and Shuruk , § 141, ECHR 2010, and KAB v. Spain , n o 59819/08 , § 115, April 10, 2012,).
93. The Court reiterates that, if the authorities have considerable latitude to assess in particular the need to take charge of a child, it must nevertheless be satisfied that in the case in question, there were circumstances warranting the removal of the child. It is incumbent on the respondent State to establish that the authorities before putting such measures into effect, carefully assessed the impact that would have on the parents and the child measuring envisaged adoption and other solutions that child care ( K. and T. , supra, § 166, and Kutzner , cited above, § 67). The Court also exerts tighter control on additional restrictions, such as those made by the authorities of the parents visiting rights, and safeguards to ensure the effective protection of the rights of parents and children to respect for their family life . Such further limitations entail the danger that the family relations between the parents and a young child ( Gnahoré , § 54, and Sahin , cited above, § 65). On one hand, it is certain that guarantee children a development in a healthy environment responsibility of the child's interests and that Article 8 of the Convention does not permit a parent to take actions detrimental to health and development of children ( Sahin , cited above, § 66). On the other hand, it is clear that it is as much in the child's interest that the relationship between he and his family are kept, except in cases where it was particularly indignant: break link back to cut the child from its roots. The result is that the child's interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties and that everything is done to maintain personal relationships and, where applicable, the time came, "reconstitute" the family ( Gnahoré , § 59, and Pontes , cited above, § 85).
94. If Article 8 of the Convention contains no explicit procedural requirements, the decision process related to measures of interference must be fair and proper to respect the interests protected by that provision. It should therefore be determined, depending on the circumstances of each case including the seriousness of the action, if the parents have been involved in the decision process, as a whole, a fairly important role to give the required protection in their interests. If not, there is a failure to respect their family life and the interference resulting from the decision can not "necessary" under Article 8 ( W. v. United Kingdom , 8 July 1987 § 64, series A n o 121, and Assunção Chaves v. Portugal , n o 61226/08 , §§ 82-84, 31 January 2012).
b) Application of these principles in the present case
95. In the present case, the Court notes that the parties do not dispute that the contested measure investment – orders against seven of his children, M., Y., IR, L., MS, and A. R., and executed from the last six – the loss of parental authority and the prohibition of any visit, decided by the judgment of the family court of Lisbon Northeast – Sintra on 25 May 2012 constituted "interferences" in the exercise of the right of the applicant to respect for his family life. The Court sees no reason to conclude otherwise.
96. The Court further observes that the parties agree that the interference in question had a legal basis. It also notes that the above measures at issue were based on Article 35 § 1 g) of the LPCJP and Article 1978-A of the Civil Code, and were therefore "prescribed by law".
97. It appears from the reasons given by the domestic courts that the decisions to which the applicant had the objective of safeguarding the interests of children. The interference in question therefore pursued a legitimate aim under Article 8 § 2 of the Convention: "the protection of rights and freedoms of others." The question is therefore whether the measures were "necessary in a democratic society" to achieve the legitimate aim in the particular circumstances of the case; more specifically, it is whether the application made in this case the legislation struck a fair balance between the best interests of the child and other competing interests.
i. preliminary observations
98. As a preliminary point, the Court notes the concluding observations and recommendations presented by the Committee of the UN Rights of the Child adopted 31 January 2014 concerning the situation of families living in persistent poverty in Portugal (see comments and recommendations n os 39-42 and 57-58 times in paragraph 57 above).
99. Next, in the present case, it notes the following.
First, the family of the applicant was the subject of a first report of the CPCJ in 2005, since the applicant was unemployed and his spouse, the children's father, was often away from home because his polygamy.
Subsequently, a rights promotion agreement and child protection between the applicant, spouse and CPCJ was established January 4, 2007 pursuant to section 55 of the LPCJP concerning E. (then aged 11 years), I. (then aged 5), M. (then aged 2), Y. (then aged 1 year) and IR (then aged three months). Under the agreement, the applicant was engaged, among others, to seek employment, to improve the living conditions in its housing and to ensure to allow his children to go to school and, where appropriate, from attending kindergartens or nurseries. Also according to the agreement, CPCJ was committed, for its part, to monitor and support the implementation of the Agreement through recommendations, suggestions and proposals (see paragraph 9 above).
The promotion procedure for the rights and protection of children at risk was officially opened on 26 September 2007, at the request of the CPCJ who was brought to the attention of the prosecutor at the court in Sintra family affairs lack of cooperation from applicant as part of the agreement, including the lack of adequate material conditions and neglect. A measure of support to parents against children was then applied on 21 December 2007 in accordance with Article 39 of the LPCJP. It resulted from the support provided to the applicant by a social worker of the ECJ in order to teach it to organize their home and care for her children (paragraphs 15-17 above – above ).
Following a hearing held on June 25 2009 in the presence of the applicant and her husband, additional clauses were added to the protection agreement by which, inter alia, the applicant undertook to rectify the situation in Portugal , to submit a dossier in order to obtain a financial allocation to designate a trusted person in the family or social circle and to undergo a sterilization operation by tubal ligation (see paragraph 18 above).
Finally, between 10 September 2009 and 24 June 2011, the applicant was the subject of several controls ECJ.
100. The Court further notes that the ECJ has sent five reports to the court, including opportunities early pregnancies of two older girls, always precarious and unhealthy housing conditions, a one-time truancy of some children, but also good grades with regard to E. I. and the lack of vaccinations update in respect of M., L., and A. MS, lack of hygiene observed in children as well as the non-compliance the commitment by the applicant to be sterilized.
101. The Court also observes that, in financial terms, the ECJ noted that the applicant was still out of work and she received 393 EUR family allowance, the children's father had declared a monthly income of 366 EUR and that parents still had not submitted an application to obtain financial assistance.
102. It further notes that in its judgment of 25 May 2012, the Family Court ordered three types of measures: a support measure of autonomy with regard to E. (then aged 17) , a measure of support to the applicant concerning I. (then aged 11) and institutionalization measure to the adoption of Mr. (then 8 years old), Y. (then aged 7 years ), IR (then aged 6 years), and L. MS (then aged 4), A. (then 3 years old) and R. (then aged 7 months).
103. The purpose of the request therefore concerns the measure taken against the seven youngest children of the applicant, confirmed by the Court of Appeal of Lisbon and, ultimately, the Supreme Court of years his judgment of 17 September 2015, and executed from the last six of them (see paragraph 35 above).
ii. The institutionalization of measures of the seven youngest children of the applicant for adoption
α) on the precarious situation of the applicant
104. The Court notes that it was primarily criticized the applicant for not providing adequate material conditions for their children and for neglecting them.
105. The Court reiterates that it is not him substituted er its assessment for that of the competent national authorities on the measures that have been taken since they are in fact better placed to make such an assessment in particular because they are in direct contact with the context of the case and the parties involved ( Reigado Ramos v. Portugal , n o 73229/01 , § 53, 22 November 2005). However, in this case, it considers the outset that it was objectively clear that the situation of the applicant was particularly fragile since it had to bear a large family, in this case ten children, that it amounted to only addition owing to the absence of her husband.
106. Now it appears that the applicant survived with 393 EUR family allowance per month and it ensured the food and clothing for the family by using the food bank and donations from individuals or associations. Despite the obvious material deprivation found in the various home visits to the applicant, the domestic authorities did not try to fill these gaps through additional financial assistance to cover the basic needs of the family (eg in food, electricity and running water) and the hospitality of the younger children in family day care to allow the applicant to exercise a paid job. In reality, it appears that social services in charge of support for the family waiting on the part of the applicant, in addition to the regularization of its situation in the country, the formal presentation of a reasoned record exists needs yet they themselves identified and reported (see paragraphs 23 and 26 above – above). The Court believes that the authorities should take concrete steps to allow children to live with their mother, before placing and open a adoptability procedure. It also recalls that the role of social protection authorities is precisely that of helping those in difficulty, guiding them through the process and advise, among others, about the different types of available social benefits, opportunities to obtain social housing or other means to overcome their difficulties ( Saviny v. Ukraine , n o 39948/06 , § 57, 18 December 2008, and RMS v. Spain n o 28775/12 , § 86, 18 June 2013 ). In the case of vulnerable people, authorities must show special attention and must ensure their greater protection ( B. v. Romania (n o 2) , n o 1285 to 1203 , §§ 86 and 114, February 19 2013 Todorova v. Italy , n o 33932/06 , § 75, 13 January 2009, and Zhou v. Italy , n o 33773/11 , § 58, 21 January 2014).
107. While it is true that in some cases declared inadmissible by the Court, the placement of children was motivated by the unsatisfactory living conditions and material deprivation, it has never been the sole reason as the basis for the decisions of national courts: in addition there were other elements such as psychic conditions of the parents or emotional disability, educational and teaching (see, for example, Rampogna and Murgia v. Italy (dec), n. o 40753 / 98 , May 11, 1999, and MG and MTA v. Italy (dec.), n o 17421/02 , 28 June 2005).
108. In this case, it is clear that at no stage of the procedure were discussed situations of violence or abuse against children (see, a contrario , Dewinne v. Belgium (dec. ), n o 56024/00 , 10 March 2005, and Zakharova v. France (dec.), n o 57306/00 , 13 December 2005) and sexual abuse (see, a contrario , Covezzi and Morselli v. Italy , n o 52763/99 , § 104, 9 May 2003, Clemeno and others v. Italy , n o 19537/03 , § 50, 21 October 2008, and Errico v. Italy , n o 29768/05 , § 48, 24 February 2009 ). The courts have not found emotional neglect (see, conversely, Kutzner , cited above, § 68, and Barelli and Others v. Italy (dec.), N o 15104/04 , 27 April 2010) or a worrying state of health or mental imbalance parents (see, a contrario , Bertrand v. France (dec.), n o 57376/00 , 19 February 2002, and Couillard Maugery , § 261). Rather, it appears that attachment links between the applicant and her children were particularly strong, which the Family Court has also noted in its decision (paragraph 34 above). It does not follow the internal record as expertise of children, at least older, has been initiated.
β) on the commitment made by the applicant under the protection agreement, for sterilization
109. The Court recalls that the dignity and human freedom are the essence of the Convention ( Christine Goodwin v UK. [GC], n o 28957/95 , § 90, ECHR 2002 – VI). In the sphere of medical assistance, the tax treatment without the free, express and informed consent of an adult in full possession of his mental capacity does not comply with the right to physical integrity and, a fortiori , with the Convention ( Glass v UK. , n o 61827/00 , §§ 82 – 83, ECHR 200 – II, and Jehovah's witnesses of Moscow v. Russia , n o 302/02 , § 135 10 June 2010).
110. The Court emphasizes that sterilization is a major attack on the ability of a person to procreate. As this intervention concerns an essential bodily functions of humans, it affects many aspects of a person's integrity, including physical and mental well-being and emotional, spiritual and family. It can be practiced legitimately at the request of the person concerned, such as birth control or for therapeutic purposes where the existence of a medical necessity is established convincingly. However, the situation is different where such medical treatment has become an adult and sane patient without his consent. Such a design shall be considered incompatible with respect for the freedom and dignity of man, which is one of the fundamental principles of the Convention ( VC v. Slovakia , n o 18968/07 , §§ 106-107, ECHR 2011 (extracts), and NB v. Slovakia , n o 29518/10 , § 80, 12 June 2012).
111. In the present case, the Court observes that the lack of monitoring of adequate family planning has resulted in worsening the financial situation, already difficult for the applicant. However, it considers that the addition of a commitment to the sterilization interested in the protection agreement established with social services is particularly serious (paragraph 18 above – above). It believes that social services could advise the applicant less intrusive contraceptive methods to respond to the lack of monitoring of family planning they found. Moreover, even assuming that the applicant deliberately accepted this approach, as the Government submitted, the Court noted that the applicant finally refused to undergo the operation in question and that, contrary to what the government refusal has clearly been brought against it by both the family Court by the Court of appeal of Lisbon and the Supreme Court, which accepted the facts established by the first instance (paragraphs 34, 41 and 46 below -above). In addition, the Court wishes to point out as a matter of principle, that the use of a sterilization operation can never be a condition for continued parental rights. Consequently, the failure by the mother of his commitment to submit to such a transaction does not in any way be held against it, even in the case of a voluntary and informed commitment on his part.
iii. On the prohibition of any contact between the applicant and his seven younger children
112. If it is not the task of replacing the domestic authorities to regulate matters of custody and access, it is for the Court to review under the Convention the decisions that they have taken in the exercise of their discretion
113. In the present case, the Court found that the prohibition of any contact between the applicant and her children have been the subject of an investment institution for the adoption was pronounced by the judgment of 25 May 2012 the family court, pursuant to Article 1978-A of the civil code which provides for deprivation of parental authority in connection with any investment measure to adopt regardless concrete situations. It notes that this measure was executed June 8, 2012, when the forced placement of children in institutions, and it lasted until 5 March 2015, the date of the lifting of the ban after the decision by it pursuant to Article 39 of the Rules.
114. The Court reiterates its position that additional restrictions are justified under Article 8 of the Convention that when the family was particularly indignant vis-à-vis the child. Or, as it has already raised previously (see paragraph 108 below – above), this was not the case in the present case. Despite the lack of evidence of violence or abuse vis-à-vis her children, the applicant was deprived of any access, while they had between seven months and 10 years and that his appeal against the judgment of the family court was pending. The Court further observes that the six children were actually placed in three different institutions, making difficult to maintain fraternal ties. This measure has caused not only the family breakdown, but also siblings, and went against the best interests of children ( Pontes , cited above, § 98).
iv. On decision making
115. The Court observes that, to justify their decisions the domestic courts are essentially based on the reports of the CCPCJ and the ECJ that accompanied the applicant in previous years. It notes that no psychological evaluation by an independent expert was ordered to assess the maturity and educational and teaching skills of the applicant ( Saviny , cited above, § 58) and a psychological evaluation of children did not longer considered necessary as it appears that the eldest daughters of the applicant ensured a crucial educational role with their cadets, to constitute for them referees. It notes that the Court of Appeal of Lisbon has not given the information that the applicant has submitted in support of his application to show that she had looked for solutions to its problems after being removed his children (see paragraph 41 above). The Court also notes that, in the review of the case on 27 March 2014 the panel of three judges of the Court of Appeal of Lisbon confirmed word for word the previous decision of the single judge by the copy-process paste, which is not an actual review of the situation (see paragraph 42 above).
116. As to the alleged lack of notification of the prosecutor's submissions as part of the protection process, the Court considers that, since it has no direct knowledge of the case file, it n is not able to decide whether the applicant received or not reporting them. However, it finds that the applicant was not represented by a lawyer in proceedings before the Family Court, which was also not compulsory at the relevant time (it has been since the entry into force of law 142/2015 of 8 September 2015 amending Article 103 of the LPCJP), except in the appeal. As she has said in the judgment Assunção Chaves (cited above, § 82), given the complexity and the issue of child protection proceedings in danger and extremely serious and delicate consequences thereof this both for the child and parents concerned, the Court considers that precautions and additional procedures have been taken to ensure not only of understanding by the applicant of the exact stake in the proceedings, but also effective participation in the latter. The Court notes that the applicant has participated only once in a hearing, namely before the Family Court (paragraph 33 above) for his hearing before that court.
117. In the alternative, the Court notes that, since it is represented by a lawyer – that is to say from the judgment of the Family Court of May 25, 2012 – the applicant took his case to the highest courts, introducing appeals and making repeated requests for access to his children. This act supported procedural ivity contrast to that prevailing in the proceedings before the Family Court, during which the applicant was not represented by a lawyer.
α) Conclusions
118. Notwithstanding the margin of appreciation enjoyed by the respondent State in the present case, the Court does not consider that the institutionalization of measures for their adoption, imposed on seven of his children, Mr. , Y, R, L., S., A. and R., and executed from the last six, to the extent that it deprived the applicant of her parental rights in respect of his children and contacts with them, causing the rupture of the biological family relationship was relevant and adequate in relation to the legitimate aim pursued and therefore necessary in a democratic society. To arrive at this conclusion the Court has had particular regard to the above considerations, namely, the absence of violence or abuse physical (compare R. and H. v. United Kingdom , n o 35348/06 , § 85, 31 May 2011), sexual or psychological against children, the existence of strong emotional bonds with them, the lack of response from social services to the physical distress of the applicant s mother a large family, exercising his almost single parenting. It also notes that the courts had not properly considered the cultural differences in the context of the proceedings in question and raises the pressure on it for submission to a sterilization operation under the procedure protection of minors.
119. Since the child's interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time came, "reconstitute" the family ( Gnahoré , cited above, § 59), the Court considers that the measures adopted by the placement of children in courts of the applicant for adoption, depriving her of her parental rights, have spared a balance the interests at stake in the domestic proceedings ( R. and H. , supra, § 72). It does not appear, moreover, that the courts have considered other less restrictive measures, including foster care and institutional care, established by Article 35 § 1 e) and f) of the Law the protection of children and youth at risk (see paragraph 61 above).
120. In conclusion, on the basis of the foregoing, the Court finds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L. , MS, A. and R. for their adoption (paragraphs 104-107).
121. In addition, there has been a violation of Article 8 of the Convention that the decision of placing children in an institution for adoption took account of the failure by the applicant to its commitment to undergo sterilization by tubal ligation (paragraphs 109-111).
122. The Court also considers that there has been interference with the right of the applicant to respect for his family life due to the prohibition of any contact between her and her children. There has therefore been a violation of Article 8 of the Convention in this regard (paragraphs 112-114).
123. Finally, there has been a violation of Article 8 of the Convention because the decision-making process that led to the placement of children in institutions for their adoption, which was not conducted fairly saw the lack of effective involvement of the applicant (paragraphs 115-117).
III. APPLICATION OF ARTICLE 39 OF THE RULES OF COURT
124. The Court recalls that according to Article 44 § 2 of the Convention, this judgment will become final a) when the parties declare that they do not require the transfer of the case to the Grand Chamber; or b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or c) when the panel of the Grand Chamber rejects the request to refer under Article 43 of the Convention.
125. The Court considers that the measures it has indicated to the Government pursuant to Article 39 of Regulation (paragraphs 53-56 above) should remain in force until the present judgment becomes final or that it makes a further decision in this regard. After the final judgment, the applicant may, if necessary and if desired, make a new application for interim measures under Article 39 of the Rules of Court.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
126. Under Article 41 of the Convention,
"If the Court finds that there has been violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party allows only partial reparation consequences of this violation, the Court awards the part injured, if necessary, just satisfaction. "
127. The applicant claimed 150,000 euros (EUR) for pecuniary damage.
128. The Government left to the discretion of the Court.
129. Given the circumstances of the case and the four findings of violations of Article 8 of the Convention contained in paragraphs 120, 121, 122 and 123, the Court considers that the applicant suffered non-pecuniary damage. Given all the evidence before it and equitable basis, as required by Article 41 of the Convention, the Court considers it appropriate to award the applicant EUR 15 000 for non-pecuniary damage .
130. Under the particular circumstances of this case and the urgent need to end the violation of the right of the applicant to respect for his family life, the Court invited the national authorities to review, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children (see, mutatis mutandis , Bondavalli v. Italy , n o 35532/12 , §§ 83 and 91, November 17, 2015, and RMS, § 101).
B. Costs and expenses
131. The applicant made no application for costs and expenses. The Court considers that there is therefore no need to grant it to award under this head.
Default interest
132. The Court considers it appropriate to base the default interest rate on the interest rate on the marginal lending rate of the European Central Bank plus three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Decides to continue to indicate to the Government, pursuant to Article 39 of the Rules, it is desirable in the interests of the proper conduct of the proceedings, to take appropriate measures to ensure the right of visit the applicant to his children having been an institutionalization for their adoption until the present judgment becomes final or she makes another decision in this regard;
3. Holds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L., S., A. and R. for their adoption ;
4. Holds that there has been a violation of Article 8 of the Convention on account of the fact that children's placement decision in an institution for adoption took account of the failure by the applicant of its commitment to submit to sterilization by tubal ligation;
5. Holds that there has been a violation of Article 8 of the Convention on account of the ban on contact between the applicant and her children M., Y, R, L, MS, R and A. . June 8, 2012 to March 5, 2015;
6. Holds that there has been a violation of Article 8 of the Convention due to the lack of effective involvement of the applicant in the decision making process that resulted in six of institutionalization of children for their adoption ;
7. Holds that local authorities will reconsider, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children;
8. Holds
a) that the respondent State is to pay the applicant, within three months from the day the judgment becomes final in accordance with Article 44 § 2 of the Convention, 15 000 EUR (fifteen thousand euros), plus any tax that may be chargeable to tax for non-pecuniary damage;
b) that from the expiry of that period until settlement, this amount will increase to simple interest at a rate equal to the marginal lending rate of the European Central Bank during the period, plus three percentage points;
9. Rejects the claim for just satisfaction to the remainder.
Done in French, and notified by 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-PassosAndrás Sajó
GreffièrePrésident
At this stop is attached, in accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court of the separate opinion of Judge A. Sajó.
CONCURRING OPINION OF JUDGE SAJÓ
I fully agree with the judgment. I think it is important to emphasize that the best interests of the child is – except in exceptional cases – to be with her parents. The 1989 Convention on Children's Rights provides in Article 3 § 1, that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. A primary consideration does not exclude the existence of other considerations and in the presence of a Convention right, we must strive to harmonize different interests. However, it is important to emphasize that the best interests of the child is not in principle opposed to the fundamental right of parents to live a family life with their children. The rule of the best interests of the child shall be construed as a rule excluding the fundamental rights of parents. Moreover, we find this consideration in Article 9 § 1 of the Convention on children's rights:
"States Parties shall ensure that the child is not separated from their parents against their will, except when competent authorities determine, […], that such separation is necessary for the best interests of the child. "
Similarly, the Court has recognized that it is as much in the child's interest and in that of his parents that the relationship between he and his family are kept, except in cases where the latter has shown particularly unworthy: break those links back to cut the child from its roots. The result is that the child's interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time v enu, "reconstitute" the family ( Gnahoré v. France , n o 40031/98 , § 59, ECHR 2000 – IX).
According to the principles established by case law of the Court, where the existence of a family tie with a child has been established, the state must act to enable that tie to develop and provide legal protection making possible the integration of the child in his family (see, mutatis mutandis , Kroon and others v. the Netherlands , 27 October 1994, series A n o 297-C, § 32, and Wagner and JMWL v. Luxembourg , n o 76240/01 , 28 June 2007). For parent and child of each constitutes a fundamental element of family life. Moreover, if the Court finds a measure concerning interference with the exercise of rights protected by the Convention is "necessary in a democratic society" requires that the reasons given for the measure in question is relevant (and sufficient ).
Originally the unilateral and absolutist understanding of the concept of the child's interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child's interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by "saviors". To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.
This entry was posted in Proportionality and Article 8 and tagged adoption, Article 8, ECHR, ECtHR, human rights on March 22, 2016 by Sarah Phillimore.
SH v Italy – violation of Article 8 by failing to support family to stay together
The case of SH v Italy was decided on 13th October 2015 – the judgment is in French. Citations here have been provided in English via Google Translate.
The court unanimously found violation of the mother's Article 8 rights and awarded her 32,000 Euros in compensation.
The mother, had 3 children, born in 2005, 2006 and 2008. She had depression and was taking medication. On 11th August 2009 the Italian authorities removed the children from the care of the parents after several incidents where the children had ingested medication and required hospitalisation.
On 20th October 2009 the parents conceded they were struggling but they could care for the children with the help of Italian social services and the children's grandfather. On 3rd December 2009 a psychiatrist concluded that the children should be reunited with their parents; the mother was following 'pharmacological therapy', was willing to undergo psychotherapy and had a very strong emotional bond with the children. The Italian equivalent of the children's guardian agreed and recommended the reunification of the family with a support package.
On January 19th 2010 the Italian court ordered the return of the children. However, sadly in March 2010 the children were once again removed as the mother was hospitalised, had separated from the father and the grandfather was ill. There then followed a period of delay until the court ordered an expert's report in October 2010. The report came in January 2011 and recommended that the children remain in foster care while contact with their parents was increased and the matter re-assessed in 6 months time.
However, the court rejected these recommendations and on 1st March 2011 'declared the children adoptable' and contact ceased. The court relied upon the 'serious mental problems' of the mother and that the father could not show affection to the children and displayed aggression in his interactions with social workers.
The parents appealed but this was rejected by the Appeals Court in Rome in February 2012:
The Court of Appeal observed that the authorities had made the necessary efforts to ensure support to parents and to prepare the return of children to their families. However, the project had failed, which demonstrated the inability of parents to exercise their parental role and the lack of transitional nature of the situation. Based on the findings of social services, the appeal court emphasized that the project's bankruptcy had had negative consequences for children and adoptability was to safeguard their interest in being welcomed into a family able to care for them adequately, that their family of origin was not able to do because of the mother's health and the father's difficulties. The Court of Appeal noted that there had been positive developments in the situation, as the awareness of the mother of her health problems and her willingness to follow a treatment course and the father's efforts to find resources to take care of his children or the availability of the grandfather to help his son. However, according to the Court of Appeal, these elements were not sufficient for the purposes of assessing the ability of the parents to exercise their parental role
A further appeal to the Supreme Court failed. In February 2014 the mother attempted to revoke the adoption order but was unsuccessful and thus she applied to the European Court, claiming a violation of her rights under Article 8 of the ECHR, in that the Italian authorities had not met its obligation to provide support to keep the family together. The children ended up in 3 different places; not only did they lose their relationship with their parents, but also with each other.
The Italian Government argued that it had acted to protect the children; the first attempt to reunify the family had failed and the children had suffered harm to their emotional development.
The judgment of the European Court
The court commented at paragraph 41:
It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with its positive obligations under Article 8 of the Convention and the Court whether, in the application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, in particular taking into account the best interests of the child (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC ] No. 41615/07, § 141, ECHR 2010, KAB c. Spain, No. 59819/08, § 115, 10 April 2012, X c. Latvia [GC], No. 27853/09, § 102, ECHR 2013).
The crucial question here was whether, the Italian authorities had taken all necessary and appropriate measures that could reasonably be required of them for the children to lead a normal family life with their own families.
The court noted at paragraph 47:
The Court notes that the expert appointed by the Court envisaged a course of rapprochement between parents and children, with an intensification of meetings and a review of the situation after six months. The proposed solution was based on the existence of strong emotional bonds between parents and children, as well as the overall positive assessment of the capacity of parents to fulfil their role and their willingness to collaborate with social services. The Court noted that the expert in question was lodged at January 13, 2011 and only two months later, i.e. on 1st March 2011, the court, contrary to the indications of the expert, said children adoptable and ordered the suspension of meetings. The decision to cut immediately and definitively the maternal bond was taken very quickly, without careful analysis of the impact of the extent of adoption of the persons concerned and despite the provisions of the law under which the declaration of adoptability must remain the extrema ratio. Therefore, the court, in refusing to consider other less radical solutions feasible in this case, such as family support project envisaged by the expertise, dismissed any final opportunity for the project to succeed and for the applicant to reconnect with his children.
The court examined other authorities where the positive obligations of the state had been examined. It agreed it was not always clear cut where the decision should be made that a state had failed to meet those obligations and member states retain a 'margin of appreciation'.
However, at para 57 the court commented:
The Court does not doubt the need in the situation of the case, an intervention by the competent authorities for the purpose of protecting the interests of children. However, [the court] doubts the appropriateness of the intervention chosen and believes that the national authorities have not sufficiently worked to save the mother-child bond. It observes in fact that other solutions were feasible, as envisaged by the expert and particularly the implementation of targeted social assistance that will help overcome the difficulties associated with the health status of the applicant , preserving family ties while ensuring the protection of the best interests of children.
At paragraph 54 the court very clearly re-stated the role of state agencies in this kind of situation; vulnerable people require greater protection:
The Court reiterates that the role of social protection authorities is precisely to help people in difficulty, to guide them through the process and advise, among others, on how to overcome difficulties (Saviny v. Ukraine, no 39948/06, § 57, 18 December 2008; RMS v Spain. no 28775/12, § 86, 18 June 2013). In the case of vulnerable people, authorities must show particular attention and must ensure their greater protection (B. v. Romania (no O2) n o 1285 to 1203, §§ 86 and 114, February 19 2013; Todorova v Italy. n o 33932/06, § 75, 13 January 2009; RMS c. Spain, no 28775/12, § 86, June 18, 2013; Zhou, cited above, §§ 58-59; Akinnibosun c. Italy, cited above, § 82).
Impact for English courts
Despite the very clear declaration of the President in Re B-S about the positive obligations upon States to keep families together and that adoption must be a 'last resort', it is clear that there is a tension between this obligation and the requirement that care proceedings must conclude as quickly as possible in or any event within 26 weeks. Access to mental health services is poor and parents will often find themselves on a waiting list for therapy, to be told this is 'outside the child's timescales'.
The salient facts here were the clear recognition of the strong bonds between mother and children and the fact that the consequences of failure to reunifiy the family were so serious, in that the children lost their relationship with their parents and each other. These considerations will not be present in all cases; proceedings involving babies removed at birth will not compell consideration of an existing bond, but whether or not that bond should be permitted to develop. That may well lead to decisions to remove that are considered proportionate.
However, this very clear re-statement by the European Court of what is mean by a state's positive obligation towards families, is another interesting authority to suggest that the UK may find itself vulnerable to serious criticism at some future point.
For example, it is interesting to note the positive research about the impact and efficacy of the Family Drug and Alcohol Courts and yet this model is still not being rolled out nationally. Are we really confident that the way we approach care proceedings with a care plan for adoption, is going to survive scrutiny in the European court?
This entry was posted in Proportionality and Article 8 and tagged Article 8, positive obligations on October 16, 2015 by Sarah Phillimore.
Disputes between parents about seeing their children
This post looks at the law in cases following the parents separation, when the parents can't agree about how the children should spend time with each of them. In cases where there is no evidence that contact with a non-resident parent would harm a child yet the resident parent claims contact would not be in the child's best interests, can courts force parents out of their entrenched positions?
Sarah Phillimore, barrister at St John's Chambers, looks at the issue and offers some practical advice.
This article was first published by Lexis on 19th May 2015 and has since been edited – you can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexisps
To what extent can or will the courts intervene to force parties out of entrenched positions?
Most experienced Family Court judges would acknowledge that there is a category of private law Children Act disputes which present profoundly difficult challenges to the court and which frequently cause judges near despair as they endeavour to achieve a positive and enduring outcome for the child. Descriptive language is used to highlight the complexity of these cases – for example, implacable hostility, intractable dispute, high conflict dispute. In some of these cases the judge's sense of despair at having failed to achieve a positive outcome for the child is palpable. In Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) Munby J memorably began his judgment by saying: 'On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D.'
HHJ Bellamy 2018
Statute Law
The relevant statutory framework is found at section 1(1) and 1(3) of the Children Act 1989 (CA 1989). The child's welfare is the paramount consideration and the court must have regard to the welfare checklist.
Section 8 allows the court to make what used to be called 'contact' and 'residence' orders but which are now 'child arrangements orders' following the Children and Families Act 2014 (CFA 2014).
The CFA 2014 also amended section 1 of the CA 1989 to include that when a court is considering a section 8 order, it must presume, unless the contrary can be shown, that the involvement of a parent in the life of a child will further the child's welfare. 'Involvement' quite explicitly is not linked to any particular division of a child's time. This amendment is thus very far from what father's rights campaigners wanted; there is no presumption that children must spend their time 50/50 with each parent. It is difficult to see what practical change is provided by this amendment, as it offers a rebuttable presumption that is a reflection of existing law and practice.
General principles from case law.
The following cases provide general principles:
W (Children) [2012] EWCA Civ 99
Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912
Re H-B (Contact) [2015] EWCA Civ 389
Each case is unique on its own facts and requires careful scrutiny. However, there are general principles which are usually applicable to every case:
the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.
It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living. Contact should thus be terminated only in exceptional circumstances.
The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.
The state has positive obligations to protect the Article 8 rights of parents and children. Thus, the judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
There are rare cases where the court decides that there cannot be immediate direct contact because that would injure the child's welfare, see Re D (A Minor) (Contact) [1993] 1 FCR 964 at pp 971G–972A per Waite, LJ.
If there cannot be immediate direct contact there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established
It is an important part of the obligations of being a parent that the parents take responsibility for making contact work – see paras 72 onwards of Re W [2012].
EDIT 9th April 2019 – for a thorough review of relevant practice and principle see the Court Of Appeal decision in G (Children: Intractable Dispute) [2019] EWCA Civ 548
Potential problems with the courts' approach.
The courts have unrealistic expectations about how parents will respond to pleas to act responsibly.
A horribly clear example of where the courts' pleas fell on deaf ears is found in the D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018) which is discussed below.
In Re H-B (Contact) [2015] EWCA Civ 389, the court heard that direct contact with the father and his two daughters had stopped in 2008. There was an incident in which the father's new wife had been angry with the older girl and grabbed her, causing a superficial injury. The father appealed against the refusal of his application for direct contact. Both parents were found to have behaved poorly.
The President of the Family Division considered the obligations upon parents when a child refuses contact with the other parent. See paragraph 75:
the responsibility of being a parent can be tough, it may be 'a very big ask'. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some 'boring' elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent's job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child's refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.
I appreciate that parenting headstrong or strong-willed teenagers can be particularly taxing, sometimes very tough and exceptionally demanding. And in relation to the parenting of teenagers no judge can safely overlook the teaching of Gillick v West Norfolk and Wisbech Area Health Authority and anor [1986] AC 112, in particular the speeches of Lord Fraser of Tullybelton and Lord Scarman. But parental responsibility does not shrivel away, merely because the child is 14 or even 16, nor does the parental obligation to take all reasonable steps to ensure that a child of that age does what it ought to be doing, and does not do what it ought not to be doing. I accept (see Cambra v Jones [2014] EWHC 2264 (Fam), paras 20, 25) that a parent should not resort to brute force in exercising parental responsibility in relation to a fractious teenager. But what one can reasonably demand – not merely as a matter of law but also and much more fundamentally as a matter of natural parental obligation – is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions (for example, 'grounding' or the confiscation of mobile phones, computers or other electronic equipment) or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parent whose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or 'dropping out' into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?'
The 'tough' approach of the court cannot however be a a solution to the problem of intractable contact disputes, because it does not adequately or even at all address the following circumstances:
The increasing autonomy of the older child.
The resident parent who simply will not or can not support a relationship with the other parent.
The older child
For older children, the suggestions by the sir James Munby that it is a straightforward matter of simply exercising a bit of parental muscle to bribe or compel a child, does not reflect the reality of the child's growing autonomy. Various cases demonstrate that it is likely that the child will simply refuse to do what is expected and may even react in quite extreme ways to the expectation: see for e.g Re K (Children) [2014] EWCA Civ 1195 where the children simply ran away.
Of course, parental responsibility does not 'shrivel away' when dealing with a Gillick competent teenager, but as a child's autonomy develops, the ability of a parent to impose his or her will inevitably decreases. A parent simply cannot dictate to a 15 year old as if he were 5 or even 10 years old. To do so is likely to be emotionally abusive and ineffective.
This is reflected in section 9(6) of the CA 1989; section 8 orders will only be made for children over 16 if the circumstances are 'exceptional'. In reality, many judges will be wary of imposing orders upon teenagers even younger than 16; recognizing that they can and do 'vote with their feet'.
The parent with whom the child lives does not support contact
This second part of the problem is not even touched upon in re H-B; the mindset of the resident parent and the impact of this on the child. The likely reality in many cases is that the resident parent has consistently exposed the child to a very negative view of the absent parent. In terms of the impact of this on the child, it probably doesn't matter what motivates the resident parent, be it genuine belief or something more malicious. The child will absorb the resident parent's reality. What else can they do?
These problems are then further compounded if the child has not seen the absent parent for some time and/or was very young at the last meeting and therefore has little or no independent memory of the absent parent.
In such cases, experts consider it unlikely – even impossible – that a child living in such circumstances can start thinking positively about the absent parent. The resident parent will assert that it is simply not in the child's best interests to have this positive view. It is not possible to force therapeutic work on an unwilling resident parent.
The parent who deliberately alienates a child
Discussion of D (A Child – parental alienation) 2018
A very interesting case about parental alienation has been published by the DFJ for Derbyshire, HHJ Bellamy. This is D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018). This case involved the child D who was born in 2005. Proceedings had been ongoing for over ten years, albeit with a four year respite from 2012 – 2016, and had cost a staggering amount of money for both parents – about £320,000 over ten years. A judge hearing the case in 2008 commented: 'On the face of it this is already a dispute which is going to escalate, or has the potential to escalate and the risk is that D will be damaged by these matters.' And sadly, that is exactly what came to pass.
There was a residence order made in the father's favour in 2011 and the mother's application to appeal was refused in 2012. Following a relatively peaceful four years, the mother then refused to return D to his father's care in November 2016 and the father did not see D again until March 2017. A final hearing was listed for April 2018 after the instruction of a psychologist. We can see clearly in this chronology how such cases often end up drifting.
in early 2018 D made allegations of a serious assault upon him by the father and contact against ceased. The police became involved but took no further action and the Judge granted the father's application in August 2018 that D give evidence at the finding of fact hearing.
D gave evidence and was very clear, saying (para 74):
I just want a normal life, living in happiness with mum. I cannot go back to my father's. I was promised by my mum and the police officer that dad wouldn't hurt me ever again. Now, I am here in court because he hurt me bad. Why can't I just have a life that isn't based on court and stress? I just want a life that I can live not live in fear from, please.'
D's guardian put forward a schedule of six allegations that D made against his father. The court noted the evidence of the psychologist Dr Spooner at para 85.
D presented with what seemed like a pre-prepared and well-rehearsed script of all the things he wanted to tell me about his father. He took every opportunity to denigrate him, his family and his partner. Each time I attempted to ask him about issues not related to his father, such as school, hobbies and so on, he quickly derailed himself and continued on his frivolous campaign of denigration.
The court heard a great deal of evidence from social workers and other experts about the alleged injuries suffered by D. It is disturbing to note how the Judge was not assisted by some of the evidence from the local authority, not least because the social worker who prepared the section 37 report was working from the assumption that everything a child said must be true.
The father denied assaulting D but had to hold his arms when D was being aggressive towards him. The Judge did not find any of the allegations proved; he found the father and his partner to be honest witnesses and this was a case where the mother was determined to 'win' at any cost. The judge found that she had deliberately alienated D from his father.
Analysis of what is meant by 'parental alienation'
From paragraph 165 the Judge considers the issue of parental alienation. At para 169 he refers to the research Dr Julie Doughty at Cardiff University. She comments:'
There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child's age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult…'
At para 170 the Judge considers the new CAFCASS assessment framework for private law cases. The assessment contains a section headed 'Resources for assessing child refusal/assistance' which in turn has a link to a section headed, ' Typical behaviours exhibited where alienation may be a factor '. These include:
The child's opinion of a parent is unjustifiably one sided, all good or all bad, idealises on parent and devalues the other.
Vilification of rejected parent can amount to a campaign against them.
Trivial, false, weak and/or irrational reasons to justify dislike or hatred.
Reactions and perceptions are unjustified or disproportionate to parent's behaviours.
Talks openly and without prompting about the rejected parent's perceived shortcomings.
Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent. May report events that they could not possibly remember.
Extends dislike/hatred to extended family or rejected parent (rejection by association).
No guilt or ambivalence regarding their attitudes towards the rejected parent.
Speech about rejected parent appears scripted, it has an artificial quality, no conviction, uses adult language, has a rehearsed quality.
Claims to be fearful but is aggressive, confrontational, even belligerent.
What can lawyers to either stop cases going wrong or intervene positively when they do?
Unfortunately, it is my view that the ability of lawyers or the courts to have much positive impact on the more extreme examples of intractable dispute, is very limited. This is because these are not legal problems. They arise out of the psychological vulnerabilities of one or both of the parents. Even if parents could be persuaded to go to family therapy or family mediation it is unlikely that many could afford to do this and no state agency can be compelled to pay. The court room is clearly a very unsuitable arena to try to deal with the often toxic emotional fall out from failed adult relationships.
However, there are elements to these proceedings that the lawyer can influence and the court can attempt to dictate, which may have a positive influence on the outcome – or at the very least reduce the time taken and the emotional and financial costs incurred. See further the judgment of Hedley J in re E (A Child) [2011] EWCH 3251 at paragraph 11 onwards and A (A Child) [2013] EWCA Civ 1104.
I suggest that the fundamental requirements are:
Careful analysis of the issues and the available options;
Which feeds into a realistic timetable, avoiding drift
Intractable contact disputes that go horribly wrong usually have dragged on over many years. This increases the child and the resident's parent aversion to the whole process; they simply want it to end. Lawyers can help by trying to identify as soon as possible which of their cases are likely to turn into intractable disputes and then being clear sighted about the options which are realistic in their case. It is essential at the earliest possible stage, all agree a clear timetable for either achieving contact or recognizing that it is not achievable whilst the child remains with the resident parent. There will then need to be full and honest appraisal of the likely success if a child is removed from the resident parent – either into foster care or to care of non- resident parent.
Proper analysis of the available options and the impact of each on the child's welfare requires knowledge and understanding about what is in reality available to a family; little point in considering 'specialist family mediation' for example, if there are no providers within a reasonable distance or no one can afford to pay for it.
The following considerations may help this process:
Clear analysis at the earliest stage as to the degree and nature of opposition to contact. How objective and reasonable is the opposition? How flexible are the parents prepared to be? How quickly did problems escalate? Warning bells will start to ring at an early stage and should not be ignored.
If the non-resident parent does not accept the objections raised by the resident parent, consider an early fact finding so that there is a clear understanding of potential problems. Courts are often reluctant to go down this route (see Re E, para 11), worried that parents may simply focus on allegations against each other rather than the welfare of the child. However, this risk needs to be considered against the problems that can be caused by allegations that are never confronted and which linger on throughout the proceedings, to the detriment of any resolution;
If a case shows signs of being intractable, judicial continuity is very desirable;
Robust enforcement of any contact orders made at an early stage – don't let this drift, bring non-compliance straight back to court. Be clear about why it hasn't worked – did the resident parent fail to encourage? Did the non-resident parent fail to comply, for e.g. with indirect contact?;
The non-resident parent should be prepared to make reparation for any behaviour that has contributed to the resident parent's distrust – not every case involves an absent parent who is wholly without reproach;
Making timely decisions about when a guardian or expert evidence is required. If the resident parent for example refuses to accept the outcome of a finding of fact this is usually the time when it is abundantly clear more needs to be done;
Exploring if there is any possibility of any help via therapeutic intervention/specialist mediation and how this is to be funded, etc
If it becomes clear that contact is not achievable whilst the child is living with the resident parent, there must be proper analysis of the available options and the impact on the child's welfare of each – for example, should the court be invited to make an order under section 37 of CA 1989 for an interim care order so that the child goes into foster care?
Dr Doughty's recommendations (cited with approval by HHJ Bellamy in para 171 of his judgment in Re D above), following a review of the case law and literature about parental alienation are:
Courts will not allow the implacable hostility of one parent to deter them from making a contact order where the child's welfare otherwise requires it. In such a case contact should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered.
In some very exceptional cases, where the non-resident parent's behaviour cannot be criticised, the effect on the child of ongoing contact proceedings is such that the court will decide those proceedings should not continue.
Where allegations of parental alienation are made, the court will need to record a determination of the facts, or risk an unnecessary appeal.
There is no blanket solution, but outcomes ae more likely to meet the child's needs where there is:
Early resolution of disputed facts about domestic violence.
Early intervention where alienation appears to be an issue
The need to consider findings of fact seriously has been endorsed by the President of the Family Division – note J (DV Facts) [2018] EWCA Civ 115 (06 February 2018)
The views of Sir James Munby
The former President of the Family Division delivered a talk to the Annual General Meeting / Conference of NACCC, Amersham 24 November 2018, entitled 'Dealing with Parents' Conflict and Unreasonable Behaviour' where he commented:
What do I have in mind?
First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
because the parents should be required to exercise their parental responsibility and resolve matters themselves: see T v S[2013] EWHC 2521 (Fam), [2014] Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction, [2019] Fam Law (forthcoming); or
because the parents should be diverted into some form of N-CDR, for example, mediation, arbitration or whatever.
Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which 'track' the case should follow:
what I will call the 'in and out' track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or
what I will call the 'ordinary' track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or
what might be called the 'special' track for the potentially more complex cases.
Finally, and assuming that the case is to proceed in court, two things are essential:
First, proper assistance, before and at the hearing, for unrepresented litigants.
Secondly, radical reform of the process at the hearing itself.
I take these in turn.
Proper assistance, before the hearing, for unrepresented litigants raises a fundamental issue of enormous practical importance. The simple reality, I fear, is that:
the guidance and other explanatory literature available for litigants in person is sadly inadequate;
the court forms are very far from user friendly; and
the Family Procedure Rules 2010 and associated materials are simply not fit for purpose and, from the point of view of the litigant in person, an obstacle to proper access to justice.
However, in my view, the fundamental issue will always remain; these are not legal problems. These cases are almost always a manifestation of the psychological vulnerabilities of one or both of the parents.
Lawyers and the courts have poorly designed and often ineffectual tools at their disposal to make much headway. But unless and until a more effective arena is available to tackle the problem of intractable contact disputes, we will have to do our imperfect best.
See Re H (Children) [2015] EWCA Civ 1216 for another sad example of the limitations of the court process in attempt to resolve disputes between parents.
See Re C (A Child) [2018] EWHC 557 (Fam) – Unsuccessful appeal to the High Court by a mother against a decision which transferred the residence of C, aged six, to her father, in light of the mother's opposition to progressing C's contact with her father. Permission to appeal was refused as being totally without merit.
See this article from the Custody Minefield about how intractable contact disputes can go wrong or get worse.
Address from the President of the Family Division to Families Need Fathers, June 2018
Review of the law and practice around 'parental alienation' in May 2018 from Cardiff University for Cafcass Cymru. There is a very useful summary of the relevant case law in Appendix A. The report concludes at para 4.7:
There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the non-custodial parent and an alliance with the alienatingparent characterised by the child's extreme negativity towards thealienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child's age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult.
With no clear accepted definition or agreement on prevalence, it is not surprising that there is variability in the extent of knowledge and acceptance of parental alienation across the legal and mental health professions. The research has however, provided some general agreement in the behaviours and strategies employed in parental alienation. This has led to the emergence of several measures and tests for parental alienation, although more research is needed before reliability and validity can be assured. Many of the emerging interventions focus upon psycho-educational approaches working with children and estranged parents, but more robust evaluation is needed to determine their effectiveness.
The Cafcass Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. The framework brings together existing guidance and tools, along with a small number of new tools, into four guides which Cafcass private lawpractitioners can use to assess different case factors, including:
Domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control.
Conflict which is harmful to the child such as a long-running court case or mutual hostility between parents which can become intolerable for the child.
Child refusal or resistance to spending time with one of their parents or carers which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
Other forms of harmful parenting due to factors like substance misuse or severe mental health difficulties.
A case where shared residence was agreed after 10 year dispute – see Re J and K (Children: Private Law) [2014] EWHC 330 (Fam)
This entry was posted in Other thoughts and tagged Article 8, direct contact, Gillick competent, indirect contact, intractable contact, parental responsibility, private law on May 20, 2015 by Sarah Phillimore.
What can we do to help the parents when children are taken into care?
I've always felt that these young people don't stand a chance in life, there are massive stumbling blocks along the way…
This is a response by Kate Wells to the recent article by Louise Tickle in the Guardian on April 25th 2015. Kate is a retired social worker of many years experience. She agrees that more needs to be done to help young parents who have suffered abuse and trauma in their own childhoods – but she is not optimistic that therapeutic intervention will be the solution that some hope for.
I read the article in the Guardian on Saturday "Are we failing parents whose children are taken into care" and the concern expressed by Judge Stephen Wildblood QC and barrister Judi Evans, about the lack of help for parents caught up in care proceedings.
For very many years I have worked with people who live on the margins of society and are amongst the most deprived and disadvantaged people in society. I've met many "Leahs" who have suffered childhood trauma, be it sexual abuse, physical/emotional abuse or severe neglect and are ill equipped to provide good enough parenting to their own children – it's often a case of "children bringing up children" as there is a significant gap between the chronological and emotional age of these young mothers. Typically they form relationships with young men with similar backgrounds and end up in a high rise flat, experiencing a range of difficulties – financial problems, mental health problems, learning disabilities, domestic violence, isolation, lack of support, drug/alcohol abuse etc.
I've always felt that these young people don't stand a chance in life, there are massive stumbling blocks along the way and it's small wonder that apathy sets in and they look for some relief in drugs/alcohol. And as the article highlights when one or two of the children are removed, they become pregnant again, and are involved in "serial monogamy" which is an added problem as now there are "step children" in the mix.
How easy is it for people to change?
Why 'love matters' – the importance of the early years
I share the concerns of the Judge and the barrister but I suppose I am not as optimistic about the possibility of change, especially when childhood trauma is the root of the problem. I too have read many psychological reports talking of parents needing therapy for 2/3 years whatever…..and I've always felt that was a cop out as any competent therapist will know that it could take many more years of therapy with no guarantee of sufficient change to enable good enough parenting, plus there is the issue of cost, with private therapists charging approx. £50 per hour and very little available on the NHS.
The thing is I have an absolute belief that the die is cast very early on in life, and right from the child's earliest hours, days, weeks and months, the foundation will be laid, positively or negatively and the first year of life is of extreme importance developmentally, and by 3 years of age, the foundation is laid for the rest of the child's life.
There is even evidence that a baby in utero can be affected by tension in the mother, domestic violence etc. Sue Gerhardt a psychotherapist whose work has been primarily concerned with working with the disturbed or malfunctioning relationships between babies and their mothers, explains in her book "Why Love Matters" the way in which there is evidence that the quality of care a baby/child has in its early life can affect the pathways in the brain, and the development of our "social brain" and the biological systems involved in emotional regulation.
The challenge then was for her to put this scientific knowledge of human infancy at the centre of our understanding of emotional life. Most importantly and of particular interest in the debate about the success (or otherwise) of therapy for parents struggling with providing good enough care for their babies, her research led her to the view that if the will and resources were available, the harm done to one generation may not be transmitted to the next: a damaged child need not become a damaged and damaging parent.
Gerhardt acknowledges that well intentioned governments have recognized the need to support family life, and have put measures in place to do so, e.g. tax credits and parenting classes. She stresses how politicians are well aware of the cost to society of dysfunctional families with the links to crime, violence and drug abuse. She uses the analogy of meagre efforts of support to families, to pouring money into the maintenance of a badly built house, the problems due to poor foundations may be temporarily alleviated, but nothing will change the fact that the house was not well built and will always be high maintenance. Likewise with human beings whose foundations have not been well built. Although extensive repairs can be undertaken later in life, the building stage, when adjustments can be made, are largely over. For prevention to be effective it needs to be targeted at the point when it can make the most difference.
Can later intervention have an impact on early deprivation?
To return to the issue under debate – "These foundations are laid during pregnancy and in the first 2 years of life. This is when the "social brain" is shaped and when an individual's emotional style and emotional resources are established."
Exactly what resources would be needed to provide parents with the "therapeutic tools" to ensure that they understood the importance of the need for a pregnancy free from tension and stress and how to make secure attachments with their babies in their first 2 years of life, is not detailed in Gerhardt's book. I think she has made some remarkable discoveries in relation to how the development of the infant's brain can affect future emotional wellbeing, backed up by the latest findings in neuroscience, psychology and biochemistry, but I remain skeptical about both the specific resources that would be needed and more pertinently about the availability of funding for such therapeutic intervention.
The parents (like most of us) only have one model of parenting, which was abusive/neglectful and so will repeat that pattern with their own children, just like people who have had a secure and nurturing childhood will repeat that pattern with their children. I don't mean that every abused child will go on to repeat that pattern as some parents ensure that their children do not suffer as they did, but we are talking about parents and children caught up in care proceedings.
We're talking of course about the "cycle of deprivation" and no one has ever found a way of breaking into that cycle. I am old enough to remember Keith Joseph (Tory Minister of State for Education and Science) horrifying us all in 1974 by declaring that "classes 4 and 5 should be prevented from breeding." The present government talks of "troubled families" but this is a euphemism of course, as families in receipt of state benefits are referred to as "benefit units" in Universal Credit speak, but I digress………
The true cost and consequences of childhood trauma
I realise I might sound like a "fatalist" but I don't believe that therapy can in fact help the majority of parents who have themselves suffered childhood trauma – indeed I think the Judge's comments about a parent being offered therapy at the beginning of the pregnancy (or when one or more child/ren have been removed) demonstrates a complete lack of understanding of just how much emotional harm has been inflicted on the young parent in their own childhood, and how that continues to cause emotional pain through the lifespan.
None of us can know how it feels – we can only imagine, but I have spent many hours sitting in smelly, grubby flats with a young mom who is mildly depressed, she hates the flat, she and the boyfriend are arguing, she has no money, there's little food in the kitchen and the toddler lies listlessly on the floor sucking from a bottle, the TV is on and an older child of 3 or so is staring vacantly at the screen and when bored, starts to tussle with the toddler and is dragged off by his mom and shouted at – he starts to cry and throws himself on the floor and she tells him to shut the fuck up…..there are a few broken toys and the situation is indeed bleak. The children are still at home but there is growing concern and if eventually they are removed, will she benefit from therapy to help her keep any more babies that she will have. Maybe, but I think the "damage has been done" many years ago and like "Leah" she will carry that emotional pain with her, and prevent her from being a good enough parent or being able to sustain relationships and have any kind of fulfilling life.
Having said all that I certainly think the FDAC is an excellent idea. I am really surprised that a Judge has set this up and another Judge is replicating the programme elsewhere. Are they human after all!? Judi does make the point of course that not every parent will be able to access any therapy that is set up, but if it means that some parents can be helped to prevent their child being removed, then it has to be a success.
I think another way of helping young parents is for LAs to recruit and train more foster carers who are able to take "child and parent" placements. We had just 2 in our area and were carefully chosen, as they absolutely had to have empathy with the young parents, empathy in spades, because any whiff of judgment or even criticism would defeat the object. There was a varying degree of success, but the resources were not available to extend the scheme and this was back in 2000, before the budgets were cut to the bone.
But who will pay for it?
There is also the issue of finance for therapeutic intervention as advocated by the Judge. I wonder if he is aware of the way in which this coalition has demanded massive savings from all public services (including legal aid) so this can't have escaped his notice! There was never sufficient funding for therapy when I was working for the LA (and retired in 2004) and now they are struggling to cope with their statutory responsibilities, as are the NHS, police, teachers etc. And if this government are re-elected they will shrink the state to the size it was in the 1930s and will pursue their agenda of privatisation for all public services, whilst cutting more and more from benefit claimants.
There is mention of "Leah" being left without support, and only offered a room in a hostel, but again Housing Authorities under the Housing legislation have no duty to house single homeless people and demand for housing far outweighs supply, and so where does the blame lie? With politicians who make the law surely. I don't suppose there are many Labour voting Judges, or barristers for that matter, though that may be unfair.
I really will end now……..be interested in your thoughts.
You may be interested in reading further about the research of Karen Broadhurst, funded by the Nuffield Foundation which looks at the issue of mothers who have successive babies removed from their care. This is known as 'recurrent care proceedings'.
The website for the study is here. The overall aim of this study is to generate evidence to inform service development in respect of the timing, content and mode of delivery of services designed to intercept a cycle of recurrent care proceedings. Further quantifying recurrent care proceedings at a national level will also provide policy makers with the necessary data to enable the economic costs of this problem to be estimated.
This entry was posted in Social Workers and tagged Article 8, help for parents, intervention on May 2, 2015 by Sarah Phillimore.
Claims against public bodies for breach of the Human Rights Act 1998
The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.
The most likely Articles of the ECHR which are in play in regard to child protection cases are:
Article 8 – the right to respect for family and private life;
Article 6 – the right to a fair hearing.
For further consideration of Article 8 and its ambit see our post on Article 8 and proportionality. For further consideration of Article 3 in care proceedings, see this post. For a list of cases and amounts of money awarded, scroll to the end of this post.
We will need to watch this space, particularly with recent Government proposals to 'scrap' the HRA and replace it with a 'British Bill of Rights'.
EDIT JULY 6th 2018 – there are still some significant issues about how such applications can be made and funded, particularly if they are made to benefit a child. Discussions with other lawyers are on-going and I aim to update this post as soon as possible. See discussions below for impact of the legal aid statutory charge on awards of damages.
Northamptonshire County Council & Anor v The Lord Chancellor(via the Legal Aid Agency) [2018], considers important new Guidance from the Legal Aid Agency. It confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.
See this article by Will Tyler QC and Ben Mansfield in Family Law Week for further discussion.
Provided this guidance is followed then the LAA will not seek to recoup damages. Parties must:
attempt resolution of the claim without issuing HRA proceedings. This may include seeking agreement from the Local Authority to pay the claimant's reasonable costs of a Part 8 CPR infant approval hearing in the event settlement is reached, to be heard by the care proceedings judge, see H (A Minor).
If its necessary to go to court practitioners must:
seek a separate legal aid certificate for the HRA damages claim; and
issue separate HRA claim forms pursuant to s.7(1)(a), HRA, in accordance with Part 8 of the Civil Procedure Rules, to be listed and determined alongside the care proceedings.
seek early confirmation from the LAA that the care proceedings statutory charge will not apply to the prospective HRA award.
confirm that they will not and have not claimed HRA costs under the legal aid certificate covering the care proceedings.
The requirements of the Human Rights Act 1998
What is an unlawful act and what is a public authority?
'Unlawful Act' is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn't have a choice because of the way the domestic law is written.
A 'public authority' includes a court/tribunal or any person who carries out functions of a 'public nature' BUT it excludes the Houses of Parliament.
Who can make an application under the HRA?
Section 7 provides that a person can bring proceedings if they are, or would be a 'victim' of the unlawful act. There is a distinction between a 'free standing' application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].
It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children's guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017).
The main points are summarised here:
The Children's Guardian cannot take on the role of litigation friend in the HRA claim. Section 12 of the Criminal Justice and Court Services Act 2000 sets out the functions of the officers of CAFCASS. They cannot be authorised to act as litigation friends to child claimants although they may give advice about the appropriateness of a child making a HRA 1998 claim. claims fall under the CPR and thus the regime of Part 36 CPR 1998 ('Offers to Settle') applies to them;
The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that 'costs follow the event' (CPR, Part 44.2(2)(a): "(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party"; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));
The publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated or connected proceedings – see section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) – is vulnerable to a claim for recoupment of the costs of proceedings by way of statutory charge from any award of HRA 1998 damages;
In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages. This has implications for:
entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award,
the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or
the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate.
What remedy can you get?
Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be 'just and appropriate'.
This can include damages, if the court is satisfied this is necessary 'to afford just satisfaction'. The court must take into account the principles applied by the European Court about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages 'just satisfaction'. Each case will depend on its own facts.
Article 41 of the ECHR
This sets out the requirement for 'just satisfaction' on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK[2002].
General principles about awards of damages pursuant to Article 41
See this Practice Direction from 2007.
A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.
Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.
The purpose of the Court's award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as "punitive", "aggravated" or "exemplary".
How have the courts approached damages under the HRA 1998?
The concept of 'just satisfaction'.
The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.
damages are recoverable 'as of right' in a negligence claim (tort), but are at the court's discretion in a HRA claim;
the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide 'just satisfaction';
That 'just satisfaction' may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach, a simple declaration that the claimant's human rights were breached is in fact sufficient 'just satisfaction'.
In the case of H (A Child – Breach of Convention Rights: Damages)[2014] the court was very clear that in the circumstances of this case 'just satisfaction' would NOT be achieved by a simple declaration that the parents' rights had been breached. See paragraph 82:
It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one's own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents' have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.
How should damages be assessed? And what is an appropriate award?
The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something. There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant's own behaviour.
The European Court has also recognised 'loss of relationship' as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.
This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.
The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:
Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.
The court in X, Y. & Z re (Damages: Inordinate delay in issuing proceedings) [2016] approved the identification of the relevant issues by HHJ Lazarus in the Medway case [2015]:
The length of the proceedings
The length of the breach
The severity of the breach
Distress caused
Insufficient involvement of the parent or child in the decision making process
Other procedural failures.
WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams & Anor[2017] is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high. For further discussion of this case, see this post.
What did the Law Commission say?
The Law Commission report considered the damages awarded by the European court at paras 3.26 and 3.27 of its report:
The Strasbourg Court has made awards for non-pecuniary loss in respect of a wide range of intangible injuries. Non-pecuniary awards have included compensation for pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation, anxiety and loss of reputation. There appears to be no conceptual limit on the categories of loss which may be taken into account, and the Strasbourg Court is often prepared to assume such loss, without direct proof…
The implication of the costs of proceedings
Guidance and warning from Anufrijeva
Para 59 of Anufrijeva was cited with approval by the Court of Appeal in 2012,:
The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitution in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of article 8, for loss of earnings and pension rights in Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 and Smith and Grady v Untied Kingdom (2000) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.
The court in Anufrijeva suggested that in order to help work out what was an appropriate level of damages, guidance could be taken from levels of damages awarded in respect of torts, awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman. But this guidance could only be 'rough'. The court also sounded this note of caution:
The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all.
The court was alarmed at how expensive it had been to bring this action and set out guidance for future cases:
The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.
The claimant will need to explain why it isn't more appropriate to use other routes of resolving the complaint, such as an internal complaints procedure or a claim to the Local Government Ombudsman.
other forms of dispute resolution are encouraged and it is hoped that any such future claims can be dealt with quickly by a judge reading the evidence.
These warnings have been repeated in later cases, most notably by Cobb J in SW & TW [2017], cited above.
Other issues regarding HRA applications
Limitation periods: You must make your claim within a year if its a 'free standing' application.
But the court does have discretion to extend that time. Section 7(5) provides that:
'(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
Injunctions under the Human Rights Act
It is possible to apply for an injunction under the HRA 1998 to prevent a public body from acting unlawfully. See our post about the LA attempting to remove a child from home who was there under a care order. The court confirmed that the parents should apply for an injunction to prevent this.
If care proceedings are on going
The courts are clear that if human rights issues are raised during care proceedings, they should be determined within those proceedings, not by separate application to another court. See In the Matter of L [2003], approved at paragraph 58 in H (A Child – Breach of Convention Rights: Damages)[2014].
The court held further at paragraph 64:
I am satisfied that the Family Court has the power to make an award of damages under s.8(2) of the Human Rights Act 1998. I am equally satisfied that the authorities to which I have referred continue to apply and that where, in the course of care proceedings, relief is sought under section 8, that relief must be sought within the care proceedings pursuant to s.7(1)(b) of the 1998 Act and not by bringing freestanding proceedings under s.7(1)(a).
BUT note what was said by Keehan J in the Northamptonshire case (see below) about making a separate application to avoid the full impact of the legal aid statutory charge absorbing any award of damages. No doubt this area of law will continue to develop, so watch this space.
The impact of the statutory legal aid charge – new guidance from 2018
The previous position was that the Legal Aid Agency would seek to recover its costs from the amount of damages awarded. See the the Statutory Charge Manual [2014]. Thus, it used to be that if an application was made under the HRA in existing proceedings – as the court advises should happen – an applicant was likely to have already incurred significant legal costs which were likely to wipe out any award of damages. This clearly had the potential to lead to very unjust results and the LAA have finally responded to demands for change.
Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) [2018], considers important new Guidance from the Legal Aid Agency. It confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.
For further commentary on this issue, see this post by The Transparency Project.
Note that there still appear to be complications arising as to how lawyers will get paid if the LA does NOT agree to pay their costs. Also, the Official Solicitor appears to be the only likely 'litigation friend' for most children and that carries with it its own problems. Watch this space as discussions develop.
EDIT July 12th 2018 The LAA have published a position statement here.
Making a complaint pursuant to section 26 of the Children Act 1989
A colleague contacted me to say that in one of her cases, the LA offered the children £1,500 each by way of ex gratia payments following a complaint made under section 26 after the care proceedings had concluded. This money will be held in trust until the children are 18.
The only problem with this approach is that for those acting on behalf of the child there's little room for negotiation over the amount of money offered, because once proceedings have finished the children's guardian doesn't have any standing to pursue a HR application
Damages awarded in other cases
P, C, S v the UK[2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
Northamptonshire CC v AS [2015] – damages £16K.
Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £45K awarded, (£20K for each child and £5K for the mother) highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as 'the worst case of the year'. £10,000 awarded to the mother and £5,000 to each child.
London Borough of Hackney v Williams and Anor[2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.
Davies v British Transport Police [2018] UKIPTrib IPT_17_93_H (30 April 2018) – Case dealing with unlawful surveillance where police found to be in breach of their statutory duty and offered no apology, comment by the court at para 41: "The basic award of £25,000 is in line with the modest level of awards in cases under the Human Rights Act and with the jurisprudence of the European Court of Human Rights as well as the practice of this Tribunal. Indeed, the award may be said to be on the high side for breaches of Art 8 and that is to reflect our view of the serious failings of the BTP…"
BT & GT (Children : twins – adoption) [2018] EWFC 76 (29 November 2018). The LA agreed to pay each twin £20K in damages for their serious and serial failures regarding their separate placements.
For an interesting overview, see this article by barrister Julie Stather in Family Law Week
See this schedule of damages in other cases produced by the Association of Lawyers for Children.
This entry was posted in Claims under Human Rights Act 1998 and tagged Article 3, Article 41, Article 6, Article 8, claim for damages, Human Rights Act 1998, injunction, Legal Aid, Statutory Charge on October 26, 2014 by Sarah Phillimore.
Proportionality and Article 8 of the ECHR
What does this mean? And why is it important?
to protect individuals against arbitrary interference by public authorities
The European Convention and the Human Rights Act 1998
'Proportionality' is the key concept to understanding how family law operates. This comes from Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).
The Convention is protected by the European Court of Human Rights, which was established in 1959. For a useful introduction to the ECHR see this infographic from Rights Info which discusses the basic structure of the European Court, who it protects and why it matters. For further information and discussion about the scope of Article 8, see the ECHR on-line site. You can get the form to make an application to the European Court and read the guide on how to make the application.
Prior to the implementation of the Human Rights Act 1998 (HRA), if you were complaining about a breach of the ECHR, you had to apply directly to the European Court in Strasbourg. Now, the HRA allows the ECHR to take 'direct effect' in domestic legislation.
Section 6 of the HRA and makes it clear that 'public authorities' – which includes local authorities who want to make applications for care orders – cannot act in a way which is incompatible with the ECHR, unless they are following statute law which they can't interpret in a way to make it compatible.
If a Judge agrees that statute law is incompatible with the ECHR, he or she can make a 'declaration of incompatibility' which means the Government will have to think seriously about amending that statute.
For useful discussion about how Parliament in the UK and the European Court interact, see this discussion from the House of Commons Library blog about parliamentary sovereignty and the European Convention.
There has been much recent debate about whether or not the UK should keep the Human Rights Act; the perception of some is that we are subject to excessive interference from Europe in the way we want to manage our country. The fears of excessive interference are not reflected by the number of times the UK has been subject to criticism in the European Court of Human Rights. The House of Commons blog says:
Since the Court of Human Rights was established in 1959, it has delivered around 17,000 judgments. Nearly half of these concerned five Member States (Turkey, Italy, the Russian Federation, Poland and Romania) … from 1959 to 2013, (and in purely numerical terms) the UK was responsible for 2.96% of the total violations found by the court (compared to Turkey who has been the worst offender, responsible for 17.75%).
A note of caution – disappearance of 'human rights' from the 'Working Together' guidance.
'Working Together to Safeguard Children' is very important government guidance for all professionals in this field. It was first published in 1999. The 2010 edition contained useful and explicit mention of human rights and reminded professionals that data protection principles often engaged individual human rights.
However, some commentators have noted with concern that the most recent edition of the guidance contains only one reference to 'data protection' and no reference whatsoever to 'human rights'. There is legitimate concern that the boundary is becoming blurred between children who are 'in need' and require help and children who are 'at risk' and require protection and the 'air brushing' out of any reference to human rights in the guidance is thus regrettable.
As Allan Norman comments:
If social workers stop caring about human rights, isn't that like doctors stopping caring about health or lawyers about justice?
Article 8 – Right to respect for private and family life
The two most frequently encountered Articles of the ECHR in care proceedings are Article 6 – the right to a fair trial – and Article 8. There is clearly some overlap between the two – if your right to a fair trial is compromised in care proceedings, this may have implications for your family life.
Article 8 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.
Therefore, we can see that Article 8 rights are not 'absolute' but can be over ruled when:
it is lawful to do so;
it is necessary to do so, for example, to protect health or morals.
The ambit of Article 8 rights
In Pretty v UK (2002) 35 EHRR 1 at paragraph 61 the ECtHR made the following comment about the ambit of Article 8:
As the Court has had previous occasion to remark, the concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.
With regard to the ambit of 'family life' Article 8 covers:
Article 8 ECHR provides that everyone has the right to respect for family life. The European Court of Human Rights interprets the term 'family life' autonomously. Forms of cohabitation or personal relationships which are not recognized as falling in the ambit of 'family life' in the jurisdiction of a contracting state can still enjoy protection by article 8; family life is not confined to legally acknowledged relationships. The Court is led by social, emotional and biological factors rather than legal considerations when assessing whether a relationship is to be considered as 'family life'.
How do we decide if Article 8 rights should be over-ruled in a particular case?
This is where proportionality comes into play. It cannot be 'necessary' to breach someone's rights if they way you propose to breach them is well in excess of what is needed to prevent harmful consequences.
For example, in some cases, there are worries that a parent is finding it hard to cope at home and this is having a bad impact on the children. The LA are considering care proceedings, but family and friends offer to help. In those circumstances it probably would not be 'proportionate' to demand that this parent give up his or her children for adoption or even have the children go to live with foster carers for a short time.
A more proportionate response would be for everyone to meet and discuss what they could do to keep the children safe at home.
However, if a child is seriously injured at home and his parents can't or won't say what happened, then it probably will be proportionate to remove the child immediately from his parents' care.
See our post on interim removals and emergency protection orders.
The issue of proportionality was discussed by the Supreme Court in Re B in 2013 when considering an appeal against the trial judge's decision that it was proportionate to remove a child for adoption.
115. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision-maker, at whatever level the decision is made, to starkly confront the question, "is this necessary". If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate.
For an example of a case where the Court of Appeal thought removing children was not a proportionate response, see K (Children) [2014].
Is the Children Act 1989 compatible with Article 8 of the ECHR?
Short answer – yes. For a recent example of when the UK was challenged by Latvia over the legitimacy of its care proceedings, see this post.
When the Human Rights Act came into force, there was a lot of interest in testing the Children Act 1989 to see if it was compatible with the ECHR.
One challenge was to the fact that once a care order is made, it is up to the LA to decide how to make it work and the court does not have any power to interfere with those decisions. The House of Lords (as they were then called; they are now the Supreme Court) considered whether or not this was compatible with Article 8 in the case of In re S [2002] UKHL 10. The lawyers argued that the court should continue to oversee what the LA was doing by way of 'starred care plans' – which identified issues in the care plan which should be kept under review and brought back to court if necessary.
The House of Lords rejected that argument and held that introducing this new supervisory role for the courts would go far beyond simply 'interpreting' the Children Act; it would be introducing a new role for the courts and only Parliament had the power to do that. To entrust a local authority with the sole responsibility for a child's care, once the 'significant harm' threshold has been established, is not of itself an infringement of article 8.
53. The essential purpose of this article is to protect individuals against arbitrary interference by public authorities. In addition to this negative obligation there are positive obligations inherent in an effective concept of 'respect' for family life: see Marckx v Belgium (1979) 2 EHRR 330, 342, paragraph 31. In both contexts a fair balance has to be struck between the competing interests of the individual and the community as a whole: see Hokkanen v Finland (1994) 19 EHRR 139, 168-169, paragraph 55.
54. Clearly, if matters go seriously awry, the manner in which a local authority discharges its parental responsibilities to a child in its care may violate the rights of the child or his parents under this article. The local authority's intervention in the life of the child, justified at the outset when the care order was made, may cease to be justifiable under article 8(2). Sedley LJ pointed out that a care order from which no good is coming cannot sensibly be said to be pursuing a legitimate aim. A care order which keeps a child away from his family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child's primary article 8 rights: see paragraph 45 of his judgment.
55. Further, the local authority's decision making process must be conducted fairly and so as to afford due respect to the interests protected by article 8. For instance, the parents should be involved to a degree which is sufficient to provide adequate protection for their interests: W v United Kingdom (1987) 10 EHRR 29, 49-50, paragraphs 62-64.
56. However, the possibility that something may go wrong with the local authority's discharge of its parental responsibilities or its decision making processes, and that this would be a violation of article 8 so far as the child or parent is concerned, does not mean that the legislation itself is incompatible, or inconsistent, with article 8. The Children Act imposes on a local authority looking after a child the duty to safeguard and promote the child's welfare. Before making any decision with respect to such a child the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child and his parents: section 22. Section 26 provides for periodic case reviews by the authority, including obtaining the views of parents and children. One of the required reviews is that every six months the local authority must actively consider whether it should apply to the court for a discharge of the care order: see the Review of Children's Cases Regulations 1991 (SI 1991 No. 895). Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child.
57. If an authority duly carries out these statutory duties, in the ordinary course there should be no question of infringement by the local authority of the article 8 rights of the child or his parents. Questions of infringement are only likely to arise if a local authority fails properly to discharge its statutory responsibilities. Infringement which then occurs is not brought about, in any meaningful sense, by the Children Act. Quite the reverse. Far from the infringement being compelled, or even countenanced, by the provisions of the Children Act, the infringement flows from the local authority's failure to comply with its obligations under the Act. True, it is the Children Act which entrusts responsibility for the child's care to the local authority. But that is not inconsistent with article 8. Local authorities are responsible public authorities, with considerable experience in this field. Entrusting a local authority with the sole responsibility for a child's care, once the 'significant harm' threshold has been established, is not of itself an infringement of article 8. There is no suggestion in the Strasbourg jurisprudence that absence of court supervision of a local authority's discharge of its parental responsibilities is itself an infringement of article 8.
Reforms following this decision
However, although the House of Lords rejected the idea of 'starred care plans', they were troubled by the absence of any identified individual who would oversee and intervene if a LA were not offering good enough care to children after the court hearing was over. This could be particularly serious if a child had no parent who was willing or able to make complaints on their behalf and could lead to an infringement of the child's human rights.
Lord Nicholls said at paragraph 106:
I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal's initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities' discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in the present case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.
The Government responded with Section 118 of the Adoption and Children Act 2002 which amended section 26 of the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).
The job of the IRO is to improve outcomes for looked after children by reviewing each child's care plan and ensure that the child's wishes and feelings are considered. They must:
monitor the local authority's performance of their functions in relation to the child's case
participate in any review of the child's case
ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the appropriate authority
perform any other function which is prescribed in regulations.
promote the voice of the child
ensure that plans for looked after children are based on a detailed and informed assessment, are up-to-date, effective and provide a real and genuine response to each child's needs
identify any gaps in the assessment process or provision of service
making sure that the child understands how an advocate could help and his/her entitlement to one
offer a safeguard to prevent any 'drift' in care planning for looked after children and the delivery of services to them
monitor the activity of the responsible authority as a corporate parent in ensuring that care plans have given proper consideration and weight to the child's wishes and feelings and that, where appropriate, the child fully understands the implications of any changes made to his/her care plan.
See our post about the role of the Independent Reviewing Officer for more information.
Further reading/listening
June 2016 – Podcast from barrister David Bedingfield of 4 Paper Buildings 'Proportionality and Public Law Children Cases'.
This entry was posted in Proportionality and Article 8 and tagged Article 8, European Convention, European Court, Human Rights Act 1998, Independent Reviewing Officer, proportionality, Strasbourg on May 23, 2014 by Sarah Phillimore.