EUROPEAN COURT OF
HUMAN RIGHTS
CASE OF SCOZZARI AND GIUNTA v.
(Applications nos.
39221/98 and 41963/98)
|
KEY WORDS: RESPECT FOR FAMILY
LIFE ; INTERFERENCE {ART 8} ; PROTECTION OF HEALTH {ART 8} ; PROTECTION OF
MORALS {ART 8} ; PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS {ART 8} ; NECESSARY
IN A DEMOCRATIC SOCIETY {ART 8} ; INHUMAN TREATMENT ; RIGHT TO EDUCATION ;
EXECUTION OF JUDGMENT ; MEASURES OF A GENERAL CHARACTER ; INDIVIDUAL MEASURES
; INHUMAN PUNISHMENT |
JUDGMENT
In the case of Scozzari
and Giunta v. Italy,
The European Court of
Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L.
Wildhaber, President,
Mr J.-P. Costa,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr L. Caflisch,
Mr I. Cabral Barreto,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mr M. Fischbach,
Mr B. Zupancic,
Mrs N. Vajic,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mr T. Pantîru,
Mr E. Levits,
Mr K. Traja,
Mr C. Russo, ad hoc judge,
and also of Mr M. de Salvia, Registrar,
Having deliberated in
private on 26 January and
Delivers the following
judgment, which was adopted on the last- mentioned date:
PROCEDURE
1. The case was
referred to the Court, in accordance with the provisions applicable prior to
the entry into force of Protocol No. 11 to the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)1, by the European Commission of Human Rights (“the
Commission”) and by the Italian Government (“the Government”) on
4 December 1998 and 21 January 1999 respectively (Article 5 § 4 of
Protocol No. 11 and former Articles 47 and 48 of the Convention).
2. The case
originated in two applications (nos. 39221/98 and 41963/98, which have been
joined) against the
3. The first
applicant lodged the first application with the Commission on
4. The first
applicant alleged a violation of Article 8 of the Convention on account of the
decision of the Florence Youth Court to suspend all relations between her and
her children and to place them with “Il Forteto”, a community, and of the fact
that she was unable to see her younger son. The second applicant complained
that no consideration had been given to the possibility of her being given the
care of the children. The applicants also complained of violations of Article 6
§ 1 and Article 14 of the Convention, on account of the delay in hearing their
appeals and of allegedly discriminatory treatment. Lastly, the first applicant
complained of a violation of Article 3 of the Convention on account of
allegedly inhuman treatment inflicted on the children in the community, and of
Article 2 of Protocol No. 1 on the ground that the arrangements made for the
children's schooling were, in her submission, insufficient.
5. On
6. The
Government were represented by their Agent, Mr U. Leanza, Head of the
Diplomatic Disputes Department, Ministry of Foreign Affairs.
7. On
8. The applicants
filed memorials on 3 March, 16 July and
9. A hearing
took place in private in the
There appeared before the
Court:
(a) for the Italian
Government
Mr V. Esposito, magistrato, on secondment
to the Diplomatic Disputes Department,
Ministry of Foreign Affairs, Co-Agent,
(b) for the applicants
Mrs A Mazzarri, of the Livorno Bar Counsel,
Mrs D. Scozzari,
Mrs C. Giunta, Applicants;
(c) for the Belgian Government
Mrs A. Davis,
Mrs M. Gillet, Counsel.
The Court heard addresses by them.
10. On
THE FACTS
I. THE CIRCUMSTANCES OF THE
CASE
A. Events leading up to
the intervention of the authorities in the first applicant's family life
11. The first
applicant met N.A., the father of her children, in
12. The elder
child was born while N.A. was still in prison. Subsequently, the first
applicant and N.A. married. On an unspecified date in 1993 N.A. failed to
return to the prison and has remained on the Belgian authorities' wanted list
ever since. In fact, N.A. and the first applicant had travelled to
13. In February
1994 the younger son was born. However, the atmosphere in the family had begun
to deteriorate. Arguments between the parents became worse and ended in
outbursts of violence against the first applicant, who subsequently lodged a
complaint against her husband (the Court has not been informed of the outcome
of those proceedings).
14. In the
meantime, M.L., a social worker employed by social services in the
15. Shortly
afterwards the elder son started to have health problems. The first applicant
took him to hospital several times but the problems were initially attributed
to an inadequate diet.
16. In November
1996 the first applicant said that she did not want M.L. to visit her son any
more. He then started to see the child at the first applicant's home and only
in the presence of his parents. The first applicant sought to stop him seeing
her son, but that had psychological repercussions on the boy, who tried to see
M.L. without his parents' knowledge.
17. A short
while later the boy informed a friend of the family about “unusual games” in
which M.L. had persuaded him to participate on several occasions. On learning
of their son's admission, the first applicant and her husband lodged a formal
complaint with the police on
18. An
investigation was started. The investigators rapidly discovered a number of
factors showing M.L. to be at the centre of a paedophile ring. In particular,
he was accused of having indecently assaulted several children since 1986 by
taking advantage of his connections with social services and his role as a
social worker (some of his presumed victims had been placed in homes and one
even entrusted into his care by the Palermo Youth Court). M.L. was also accused
of selling photographs taken during his sexual encounters with children,
including the first applicant's elder son, and of running a drug-trafficking
ring.
19. On
20. Meanwhile,
social services began to examine the situation of the first applicant's family
more closely. In a report of 30 January 1997, the case worker, Mrs S.G., stated
that there was a serious conflict between the parents (the first applicant had
complained about the situation to various authorities the previous summer) and
difficulties in securing their effective cooperation. In a second report of
21. On 25
February 1997 the Florence Youth Court ordered that the children and their
mother should stay in a home designated by social services. It referred in
particular to the complaint concerning the sexual abuse allegedly suffered by
the first applicant's elder son.
22. In a report
of 12 March 1997, social services indicated that it was difficult to find a
home ready to accommodate both the children and their mother. Moreover, the
first applicant had refused to be separated from her children and the elder boy
had said that he wanted to stay with her. All three were provisionally
accommodated in a hostel ran by Caritas, a charity. On the first applicant's
initiative, the children began to attend school again. Social services also
described the first applicant in that report as being unstable and fragile.
23. In March
1997 social services noted that it was impossible for Caritas to continue to
provide a home for the first applicant. They also said that she seemed incapable
of following a suitable programme for the protection of the children and that
there were doubts as to her effective capacity to look after them. In addition,
she had continued to see a man both on and off the premises and indicated that
she wanted to return home, as her husband was no longer violent towards her.
24. A
neuropsychiatrist employed by the local health authority stated in a report of
“...
Mrs ... appears incapable of gauging reality and adapting her behaviour
appropriately. She seems very confused about how to recount matters and about
irrational acts. She is incapable of distinguishing between what is good and
what is bad for the child and therefore incapable of protecting him; she
alternates between times when she appears very childlike, in accordance with
the idealised image of the mother, and times when she places G. in an adult
role with seductive and subtly perverse traits.
I
can conclude that Mrs ... presents a serious personality disorder that at times
affects the sphere of knowledge and ideation and at others the emotional and
relational sphere, and that the hypothesis of a clinical 'borderline case' can
be advanced.
As
matters stand, Mrs ... shows that she is not capable of managing the extremely
complex family situation and G.'s particularly sensitive situation, still less
of creating a sufficiently positive environment for him.”
25. It was
noted in a school report of 10 June 1997 that the elder boy was becoming
increasingly agitated and that the first applicant's attitude to both her son
and school staff had tended to be highly erratic: at times aggressive, at
others attentive. According to the school, it had proved very difficult to
establish a constructive dialogue with her. A report by the social worker the
following day confirmed the elder boy's increasing difficulties.
26. On
27. It was
stressed in a private medical report lodged at the time that the boy, who was
in terror of the priest who ran the home, needed a peaceful environment rather
than to be surrounded by other children whose past was just as tragic as his
own.
28. The younger
child was transferred to another home in the meantime.
29. On 8
September 1997, at the end of a meeting attended by, inter alia, social
workers and specialists who had been supervising the first applicant and her
children, the representatives of the relevant social-services department
concluded that the children needed to be separated from their natural family
and recommended their placement in a community, “Il Forteto”, which was
organised as an agricultural cooperative.
30. On 9
September 1997 the Florence Youth Court ordered the two children's placement at
“Il Forteto”, pursuant to Article 333 of the Civil Code (Condotta del
genitore pregiudizievole ai figli – “parental behaviour harmful to the
children”), suspended the father's and the mother's parental rights pursuant to
Article 330 of the Civil Code (Decadenza dalla potestà sui figli –
“lapse of parental rights”), ordered that if the parents refused to comply, the
decision was to be enforced with police assistance, and granted the parents the
right to visit the younger son only, such visits to take place on the
cooperative's premises and in the presence of members of its staff. The Youth
Court observed, inter alia, that the parents had been uncooperative and
had on one occasion taken the elder child from the home where he had previously
been staying despite the protests of his carers. It also criticised the parents
for having exposed the elder boy to a tragic situation – of which he had been
the victim – over a lengthy period, without exercising the supervision which
was expected of them as parents, or being alert to the alarm signals given by
the child. Conversely, those signals had not escaped the attention of school
staff, who had tried in vain to establish a dialogue with the family. Lastly,
the Youth Court ordered social services to monitor the children's situation
closely and to produce a proposal for the children's rehabilitation, based on
what was observed.
B. Matters relating the “Il Forteto” community
31. The case
file reveals that at the end of the 1970s the cooperative was the subject
matter of a criminal investigation into acts of bestiality and paedophilia
allegedly committed there by three of its founder members. Two of them, L.R.F.
and L.G., were arrested and later released, but nevertheless committed for
trial.
32. On
(i) both L.R.F.
and L.G. were guilty of ill-treating a handicapped
18-year-old girl who had stayed at the home for a few days by, inter alia,
hitting her several times a day, insulting her in the presence of others,
preventing her from communicating with the outside world and mocking her
physical appearance. In addition, L.R.F. had spat in her face and, as an act of
contempt, exposed himself to her.
(ii) L.R.F. was
also found guilty of having sexually abused (atti di libidine violenti)
two mentally handicapped males, on one occasion in the presence of a
13-year-old minor.
33. L.R.F. was
sentenced to two years' imprisonment and L.G. to ten months' imprisonment. They
were nonetheless granted a stay of execution and the order banning them from
holding public office was quashed. They also received an amnesty for an offence
of wrongfully holding themselves out (usurpazione di titolo) as
psychologists holding diplomas from the universities of
34. Their
appeal to the Court of Cassation was dismissed on
35. Both men remain
on the staff working at the cooperative. In addition, one of them, L.R.F., was
present during the aforementioned contact visit on
36. The case
file and, in particular, one of the books published on “Il Forteto” (Ritratti
di famiglia, Florence, 1997), revealed that some of the people working in
the community, or who have been staying there, come from problem families and
have suffered violence at the hands of paedophiles.
37. In support
of her allegations, the first applicant has also produced various statements in
writing, beginning with statements by three people who have given their
identity and whose respective niece, sister and daughter stayed, for various
reasons, at the community in question. The relevant extracts are set out below.
38. Statement
of the first witness:
“...
the little girl recognised me and came towards me; a man standing next to her,
came towards us and told us to leave ... I went to 'Il Forteto' on another
occasion in 1997 ... I tried a number of times but always received negative
replies ...”
39. Statement
of the second witness:
“...
the girls who went to 'Il Forteto' were malnourished and demoralised. My sister
was one of them. When she returned to my mother's house she didn't speak and
couldn't express her ideas coherently; my mother and I had to feed her with a
teaspoon for several months ...”
40. Statement
of the third witness:
“...
in May 1991, late in the evening in the presence of other members of the
family, she was so frightened that she could not even manage to explain and
kept repeating that she did not want to go back to 'Il Forteto'. That made us
aware that terrible things are going on at 'Il Forteto'. She had to go back
because they were blackmailing her ... She had in the past been hit by ... G.
... L. ... for refusing to participate in certain acts of violence which she
did not want ... I am prepared to give evidence before the
41. The
applicants have also produced two other witness statements in writing. Both are
signed.
42. The first
is by a municipal councillor from a village in the region. She affirmed that
the children's guardian, whom she already knew and to whom she had referred for
information on the case, had advised her not to get involved. Furthermore,
according to her statement, L.R.F. had invited her to visit the community after
she had expressed doubts about it in public at a ceremony for the presentation
of one of the books published on the community. Despite her repeatedly
expressed wish to meet the children, she was consistently denied an opportunity
to do so, various reasons being given.
43. The second
statement was made by two officially assigned experts working for the Florence
Youth Court who had had a role in the case concerning the first applicant's
children. According to their statement, the two experts – one a neurologist,
the other a psychiatrist, and both directors of a family-therapy medical centre
in Florence – had asked “Il Forteto” to allow trainees from the centre to work
at the community or at least to visit it. On each occasion, their requests were
turned down for reasons which the experts found “absurd”, such as, for example,
the fact that the community was not a public institution. A student from the
centre, attending a training course recognised by the Tuscany Region in
1996/97, had nonetheless managed to gain access to the community during his
studies. During his visit he learnt from one of the leaders of the home that
the families looking after the children were not necessarily the ones formally
named in the court order.
44. The
applicants also referred to passages taken from one of the books published on
the community (Il Forteto, Florence, 1998).
45. They quote,
inter alia, the following passages relating to the vexed issue of the
presence of certain adults at the home:
“Therefore,
they each decided to share a mutually enriching experience with the others
which would assuage the affective deficiency which had been their driving
force” (p. 94). “Thus each member found and continues to find, through this
experience, a sense of belonging, cohesion and love which elsewhere, in his
family of origin, was lacking” (p. 95)
46. The
applicants also quote the following passage, which refers to the authorities
implicated in the criminal proceedings against some of the leaders of the
community:
“Many
years have passed and the case has become clearer as the evidence of the
machinations against them, which even today is kept in the villa, has been gathered.
Even in that regard they display a Christian attitude which, frankly, I envy.
Today, they could easily bring criminal proceedings or an action in damages
against certain judicial officers, but do not do so ... At the time, the
behaviour of the judicial authorities was schizophrenic. While making
accusations against 'Il Forteto' via the Florence Public Prosecutor's Office,
they continued to place children in the care of that structure through the
Youth Court. S ... was put into R ... at precisely that time” (p. 31)
C. Suspension of contact between the first applicant and
her children until the decision of the
47. Within the
community, the children were put into the care of Mr G.C. and Mrs M.G.,
the couple designated in the court order of
48. On 10 and
49. On
50. On the same
day the psychology unit at the local health authority (Unità sanitaria
locale) certified that the first applicant was in good psychological
health.
51. On
52. On
53. Other
attempts by the first applicant to see her younger son by going directly to “Il
Forteto” were unsuccessful. Subsequently, there was a deterioration in
relations between the first applicant and certain leaders of the community
responsible for her children. The latter lodged a complaint against her
accusing her of having threatened and assaulted them verbally and physically.
They alleged that, on at least one occasion, she had done so with the
assistance of her former husband, whom, they said, she continued to see (a
letter relating the incidents was sent on 7 January 1998 to the public
prosecutor and to the Youth Court; it bore the signature of L.G.).
54. On
55. On
56. On
57. On
58. Following
the various steps taken by the first applicant, the Florence Youth Court noted
in an order of
59. On
60. On
61. Subsequently,
the relevant social services department held preparatory sessions with the
first applicant on 21 April, 19 May and
62. There was a
meeting of all the services concerned on
63. The first
applicant had requested that her lawyer also be allowed to attend the visits
and informed the Youth Court of that request. However, it was turned down on
the ground that the presence of undesignated persons was not envisaged and, in
addition, the therapeutic nature of the arrangements made it necessary to
restrict attendance to the specialists from public bodies.
64. On 22 June
1998, however, the first applicant said that she was unwilling to see the
younger child without his brother in view of the probable suffering that the
elder child would endure on learning that only his younger brother was to be
allowed to meet their mother. On
65. On
“...
we do not want the children to nurture absences which could develop into
internal fantasies and consequently bring contact with their parents to an
abrupt and definitive end, but we consider it very important to put off such
contact to a more suitable moment and to give the children sufficient time to
absorb the negative and guilt-ridden images which their parents evoke ...”
66. On
67. On
68. On
69. In a note
of
70. In
addition, R.L., a neuropsychiatrist responsible for assessing the children,
stated in a report of
D. Action taken by the second applicant
71. On
72. On
73. On
74. At the end
of the hearing on
75. Subsequently,
the second applicant nonetheless appealed against that decision, her principal
claim being to parental rights over the children. In the alternative, she asked
to be allowed to see them at least twice weekly without prior counselling,
since she was in any event prevented from attending such a course as she could
not remain in
76. On
77. Meanwhile,
on
78. On
E. Decision of the
79. On
80. On
81. On
82. On
83. On 9
February 1999 a social worker from Vicchio (Mrs S.C.) and the
child-neuropsychiatrist, Mr R.L., who were responsible for monitoring the
progress of the first applicant's children and who had already prepared a
programme of meetings with the children and the foster parents, informed the
Youth Court that they had reservations as to the appropriateness of their being
asked to counsel the children's father and grandmother with a view to contact.
According to the social services department, there was a danger that the close
proximity of the children would create tensions, added to which it did not know
either the father or the grandmother. For those reasons, it suggested that they
should receive preparatory counselling from their local social services.
84. On
85. On 15
February 1999 the Youth Court replied, inter alia, to the Social
Services Departments of Figline Valdarno and Vicchio; it informed them that the
court proceedings had finished and that, accordingly, the administrative and
organisational matters were to be dealt with by social services. It remarked,
too, on the length of time that social services had taken since its decision
and reminded them that they should be giving it their urgent attention.
86. On
87. On
88. On
89. A few days
later G. informed the Youth Court that after his experience with the specialist
he did not wish to meet his mother or grandmother for at least three months.
90. After the
first applicant had received preparatory counselling, the initial contact with
the children nonetheless took place on
91. However,
having viewed the video recordings of that first visit produced by the
Government (see paragraph 10 above), the Court has found nothing to support the
appraisal and unfavourable comments of social services to which the Government
refer. The visit took place in a room in the psychology unit at the social
services department. It was friendly and the atmosphere was reasonably relaxed.
Towards the middle of the visit the elder son began to cry, very probably when
old wounds from his dramatic past were reopened. The episode was brief, he
appeared relieved afterwards and calm was quickly restored between the first
applicant and the children. Social services displayed an evident lack of tact
towards the first applicant. Two people – either social workers or specialists
– were present in the room throughout the visit so that the first applicant was
at no stage able to enjoy any intimacy with her children, added to which, the
visit was ended rather abruptly. The Court's view is that overall, though
tense, the relationship between the first applicant and her children was warm
and relaxed. The first applicant behaved responsibly throughout the visit,
proved ready to cooperate and was respectful. Although the children did not
manifest any obvious regret when the visit ended, the Court considers that the
terms summarised above which social services used in their reports to describe
the visit were unduly dramatic and unfavourable to the first applicant, and do
not correspond to what was seen on the video recording produced by the
respondent Government.
92. That
notwithstanding, the elder child wrote to the social workers on
93. A second
visit took place on
94. However,
having examined the audio recordings produced by the Government (see paragraph
10 above), the Court has found nothing to support social services' position.
The arrangements for this visit appear to have been similar to those for the
first in that, in particular, it was held on premises belonging to social
services, again in the presence of two specialists. The following points
arising from the focal points of the visit have enabled the Court to identify
once more discrepancies between social services' official report and what was
heard on the recording. In particular:
(i) the report
does not mention the fact that the first applicant asked the children whether
they were happy to see her again or that they said that they were;
(ii) the elder
son did not raise the question of his mother's role in the paedophile assaults
on him on his own initiative, as the report seems to suggest, but was prompted
to do so by one of the two specialists present;
(iii) after the
visit was over, one of the specialists told the first applicant that in reality
her elder son had not wanted to see her again and that the new visit had only
proved possible thanks to the efforts of the other specialist present;
(iv) the
experts said that whether there were to be further visits would depend on the
elder son and that the first applicant would be able to see her younger son “if
possible”, to which she had reacted by asking them what they meant by the
latter expression, but the specialists had replied that the answer did not
depend on them.
95. On
96. On
(i) the elder
child was in the process of acquiring a new identity marked by the suffering
from the past and, consequently, did not appear to be being manipulated;
(ii) he
considered it preferable not to see his mother again during the next two years;
(iii) social
services had decided to suspend all contact between the first applicant and her
children, while at the same time continuing to counsel her with her a view to
keeping her informed of any changes in the children's attitude on that subject.
97. As to the
father, he has not visited the children at all, despite the fact that
preparatory counselling sessions with social services were held at the end of
1999. From a report by social services dated 8 November 1999, it would appear
that the father was aware of the evolution of the situation between his former
wife and the children, and in particular of the negative outcome of the visit
on 9 September 1999. The first applicant maintains, however, that she was no
longer in touch with him and that he spent his time travelling between
F. Further appeals by the applicants
98. On
99. The first
applicant also challenged the decision to keep the children at “Il Forteto” and
requested their placement elsewhere, arguing:
(i) that it was
difficult for the parents of children staying in the community to gain access
to them;
(ii) L.R.F. and
L.G. remained the most important figures at “Il Forteto”, despite their
convictions;
(iii) the
foster parents at “Il Forteto” were doing all they could to hinder a resumption
of relations with the children.
100. The second
applicant also appealed.
101. On 22
March 1999 the children's guardian intervened in the proceedings before the
Court of Appeal, requesting the suspension of contact for several months, inter
alia, on the grounds that:
(i) the first
applicant had largely exaggerated her professional qualifications;
(ii) for
several years she had failed to notice what her elder son, G., was going
through, which demonstrated that she was incapable of assuming her role as
mother;
(iii) the
grandmother had always lived in
(iv) the
children's father was a fugitive criminal after his escape from prison in
(v) “Il
Forteto” was a cooperative that was internationally famous for its production
of milk and cheeses, but also an innovative home for the protection of children
in distress that had been founded by twenty families who had never abandoned
it. While it was true that two of its members had convictions (although they
were not, in any event, members of the family looking after the first
applicant's children), it was equally true that such prosecutions could be
based on false evidence. Furthermore, over a twenty-year period, some seventy
children had been placed with the cooperative by courts from regions all over
Italy and a number of those care orders had subsequently resulted in adoptions,
thus confirming the validity of that option and the courts' confidence in “Il
Forteto”.
102. The public
prosecutor at the Court of Appeal requested that the children be put into the
care of their grandmother or, failing that, of another family.
103. On
104. The first
applicant appealed to the Court of Cassation. As to the placement of the
children at “Il Forteto”, she observed that even though the children were not
in the immediate care of the two leaders with convictions, it had been the
latter who had brought the foster parents into the home and trained them
(L.R.F. had even become the president of the cooperative). Moreover, L.G.'s
wife was actively involved in looking after the children, the elder son, G.,
having admitted in his letter of 2 March 1999 that it had been she who had
helped him to interpret his doubts about his mother.
105. The Court
has not been informed of the outcome of the proceedings before the Court of
Cassation.
106. On 25 October
1999 the first applicant asked the guardianship judge to request that contact
visits be arranged at more regular intervals than in the past and to permit a
psychologist to interview the children in “Il Forteto” and attend the
counselling sessions prior to the visits. On
107. In a
decision of
108. The first
applicant appealed against that decision. She argued, inter alia, that
the Youth Court had accepted social services' conclusions regarding the
negative results of the visits as they stood; it had failed in its duty to
supervise the implementation of its decisions critically and with the help of
relevant objective evidence such as the audio-visual recordings which she had
asked to be produced. In her submission, apart from the fact that she failed to
see how a visit which she had been looking forward to for years could have been
interpreted so negatively, her right to examine the recordings was all the more
founded in that it would help her gain a better understanding of herself and to
adapt her behaviour. It was, furthermore, absurd for the Youth Court to refuse
to examine the recordings itself or to allow the guardianship judge to do so.
Lastly, the presence at the preparatory sessions and during contact visits of a
specialist chosen by the applicant would help her to take part in her
children's family and psychological development, particularly as there was no
statutory provision to prohibit a parent from seeking the additional help of
private psychologists to prepare for re-establishing relations with his
children.
109. In a
decision of
G. The programme of visits by the second applicant
110. The second
applicant was invited on
111. According
to the report prepared by social services, the second applicant complained at
that session that she had not been given an appointment in March 1999 and said
that she could not leave
112. According to
the most recent information received from the first applicant, the second
applicant will be required to reimburse a substantial sum to the
H. Subsequent developments in the criminal proceedings
against the first applicant
113. On
114. The child
confirmed his accusations on questioning by the public prosecutor on
115. On
“What
I have said up to now is the simple truth. I would have no difficulty in
confirming what G. has said if it were true ... I believe that G. has invented,
at least in part, what he has said because of bitterness towards his parents.
G. had a very poor relationship with his father, but adored his mother. Perhaps
he later became rather bitter because he felt that she had not done enough to
protect him. If I could confirm what he has said I would do so, to help him,
too.”
116. On
117. In
addition, on an unspecified date and in circumstances that have not been
clarified, the first applicant's sister was heard by the Florence Youth Court.
She stated that she was living with her mother and one of her brother's at
Figline Valdarno and that another brother, who had been involved in drug
trafficking, had been killed. An elder brother who had not forgiven her for
having intervened as a civil party in the criminal proceedings instituted
following the death of the other brother had accused her of attempted murder.
According to the record of her sister' statements, the first applicant had also
been charged.
I. Other information relating to the children's mental and
physical welfare
118. In a
certificate of
119. In
addition:
– a doctor's
certificate dated
– a certificate
by another doctor dated
120. A
certificate drawn up by a paediatrician on
121. In
addition, the school report on the elder child for the school year 1997/98 and
a report by the teachers stated that he was working hard and making constant
progress.
122. Social
services said in a report of
123. Lastly, in
their last report (29 March 2000) social services said that the younger child
was now attending nursery school and his relations with the teachers were very
good.
II. RELEVANT DOMESTIC LAW
124. Article
330 of the Italian Civil Code provides:
“The court may declare parental rights forfeit if the parents do not perform or
neglect the obligations inherent in their parental role or abuse the powers
related thereto causing serious detriment to the child.
In
such eventuality, the court may, if there are serious grounds for so doing,
order the child's removal from the family home.”
125. Article
333 of the Civil Code provides:
“Where the conduct of one or both parents is not such as to give rise to their
parental rights being declared forfeit under Article 330, but is nonetheless
detrimental to the child, the court may adopt any measure that is appropriate
in the circumstances and may even order the child's removal from the family
home.
These
measures may be revoked at any time.”
126. Furthermore,
Law no. 184 of 4 May 1983 on the fostering of minors and adoption, provides, inter
alia, that a minor who has temporarily been deprived of a satisfactory
family environment may be placed with another family, with a family-type
community, or if it is not possible to provide him with a satisfactory family
environment, in a children's home (section 2).
127. Section 4
of that law provides, inter alia, that among other matters that must be
stipulated in an order placing the child with a family is its provisional
duration (paragraph 3). In addition, section 5 provides that the family, home
or community in whose care the child is placed must facilitate relations
between the minor and his natural parents and his reintegration in his original
family.
128. Section 9
imposes an obligation on children's homes to send six-monthly reports to the
guardianship judge on the minor, his relations with the family of origin and
his mental and physical welfare. The provision also requires the guardianship
judge to report to the youth court on abandoned children in the home and to
carry out six-monthly inspections.
129. Lastly,
section 12 provides, inter alia, that where investigations have revealed
the existence of relatives or other family members up to the fourth degree who
have maintained meaningful contact with the minor and whose whereabouts are
known, the president of the court shall order their attendance at court
(paragraph 1). After hearing them, the president of the court may give them
such instructions as shall be necessary to ensure that the minor receives
emotional support, maintenance, an education and an upbringing (paragraph 3).
the law
I. ALLEGED VIOLATION OF
ARTICLE 8 OF THE CONVENTION
130. The first
applicant, who purported also to be acting on behalf of her children,
complained of infringements of Article 8 of the Convention in that her parental
rights had been suspended, her children had been taken into care, the
authorities had delayed before finally allowing her to see the children, too few
contact visits had been organised and the authorities had placed the children
at “Il Forteto”.
131. The second
applicant also alleged a violation of Article 8, complaining that the
authorities had discounted the possibility of her being given the care of her
grandsons and delayed organising contact with them.
132. Article 8
is worded as follows:
“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.”
133. The
Government contested the applicants' arguments.
134. The
Commission expressed the opinion that that there had been no violation on
account of the suspension of parental rights or the children's placement at “Il
Forteto”, and no violation of the second applicant's rights. Conversely, it
considered that there had been a violation of Article 8 as regards contact
between the first applicant and her children.
A. The Government's preliminary objection regarding the
first applicant's standing also to act on her children's behalf and,
consequently, the Belgian Government's standing to intervene in the proceedings
135. The
Italian Government contested, firstly, the first applicant's standing also to
act on behalf of her children, as her parental rights had been suspended on
136. The
Government went on to contend that the Belgian Government had no standing to
intervene, since their intervention was based solely on the fact that the elder
child was a Belgian national.
137. The
Commission rejected that objection, noting that it was clear from the first
application that the first applicant's children were also applicants and
represented by the same lawyer in the proceedings before it. It added that
there was nothing to prevent minors applying to the Commission. Indeed, there
was all the more reason to allow them to do so where they were represented by a
mother who had a conflict of interest with the guardian whom the public
authorities had entrusted with the task of looking after the children's
interests in her stead.
138. The Court
points out that in principle a person who is not entitled under domestic law to
represent another may nevertheless, in certain circumstances, act before the
Court in the name of the other person (see, mutatis mutandis, the
Nielsen v. Denmark judgment of 28 November 1988, Series A no. 144, pp. 21-22,
§§ 56-57). In particular, minors can apply to the Court even, or indeed
especially, if they are represented by a mother who is in conflict with the
authorities and criticises their decisions and conduct as not being consistent
with the rights guaranteed by the Convention. Like the Commission, the Court
considers that in the event of a conflict over a minor's interests between a
natural parent and the person appointed by the authorities to act as the child's
guardian, there is a danger that some of those interests will never be brought
to the Court's attention and that the minor will be deprived of effective
protection of his rights under the Convention. Consequently, as the Commission
observed, even though the mother has been deprived of parental rights – indeed
that is one of the causes of the dispute which she has referred to the Court –
her standing as the natural mother suffices to afford her the necessary power
to apply to the Court on the children's behalf, too, in order to protect their
interests.
139. Moreover,
the conditions governing individual applications are not necessarily the same
as national criteria relating to locus standi. National rules in this
respect may serve purposes different from those contemplated by Article 34 of
the Convention and, whilst those purposes may sometimes be analogous, they need
not always be so (see the Norris v. Ireland judgment of 26 October 1988, Series
A no. 142, p. 15, § 31).
140. Therefore,
since the first applicant also has standing to act on behalf of the children,
the Belgian Government are entitled to take part in the proceedings within the
meaning of Article 36 § 1 of the Convention and Rule 61 § 2 of the Rules of
Court, as the elder child also has Belgian nationality.
141. The Court
accordingly concludes that the Government's preliminary objection must be
dismissed, both as regards the locus standi of the first applicant's
children and the standing of the Belgian Government to intervene in the
proceedings.
B. Compliance with Article 8: was the interference “in
accordance with the law” and did it pursue a legitimate aim?
142. It was
common ground that the impugned interference was in accordance with the law for
the purposes of Article 8, the relevant provisions being, in particular,
Articles 330 and 333 of the Civil Code (see paragraphs 124-25 above) and
section 2 of Law no. 184 of 1983 (see paragraph 126 above). It is true that the
applicants alleged a failure to apply certain provisions of the latter statute,
notably those concerning the provisional length of the placement (section
4(3)), the duty of directors of care institutions to facilitate links with the
family of origin (section 5), and the refusal to give consideration to putting
the children in the care of their maternal grandmother (section 12(1)).
However, those matters concern the manner in which the relevant domestic
provisions were applied, not the legal basis for the impugned interference as
such. They therefore relate to the issue whether the relevant provisions were
applied in accordance with the Convention principles.
143. Furthermore,
the parties also agreed that the impugned measures pursued a legitimate aim within
the meaning of Article 8, namely “the protection of health or morals” and “the
protection of the rights and freedoms of others”, as they were intended to
protect the welfare of the first applicant's children.
C. Compliance with Article 8: was the interference
“necessary in a democratic society”?
1. Suspension of the
first applicant's parental authority and the removal of the children
(a) Submissions
of those appearing before the Court
(i) The
first applicant
144. The first
applicant contested the authorities' decision and stressed, inter alia,
her determination to break free of the family background that had been damaged
by her former husband's violence. That determination was shown notably by the
fact that she had lodged a complaint against her former husband and separated
from him.
(ii) The
Belgian Government
145. The
Belgian Government considered that the suspension of parental rights appeared
justified in view of the limited capacities of the first applicant and her
former husband to bring up the children.
(iii) The
Italian Government
146. The
respondent Government emphasised above all the gravity of the domestic
circumstances of the first applicant, which had been marked by the sexual abuse
which one of her friends had inflicted on the elder child for years and the
repeated violence that characterised the relations between the members of the
family. The Government also referred to the first applicant's complex
personality and concluded that the measure in issue had been justified by the
children's interests.
(iv) The
Commission
147. The
Commission considered that since the children had been confronted over a very
considerable period by situations that were undoubtedly harmful to their
development, the interference by the authorities through the children's removal
was justified in order to protect their interests.
(b) The
Court's assessment
148. The Court
reiterates that “... it is an interference of a very serious order to split up a
family. Such a step must be supported by sufficiently sound and weighty
considerations in the interests of the child ...” (see the Olsson v. Sweden
(no. 1) judgment of 24 March 1988, Series A no. 130, pp. 33-34, § 72).
Therefore, “... regard must be had to the fair balance that has to be struck
between the competing interests of the individual and the community as a whole,
and in both contexts the State ... enjoy[s] a certain margin of appreciation
...” (see the Hokkanen v. Finland judgment of 23 September 1994, Series A
299-A, p. 20, § 55). In this sphere, “... the Court['s] ... review is not
limited to ascertaining whether a respondent State exercised its discretion
reasonably, carefully and in good faith ... In the second place, in exercising
its supervisory jurisdiction, the Court cannot confine itself to considering
the impugned decisions in isolation, but must look at them in the light of the
case as a whole; it must determine whether the reasons adduced to justify the
interferences at issue are 'relevant and sufficient ...' ” (see the Olsson
(no. 1) judgment cited above, p. 32, § 68, and, mutatis mutandis, the
Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25-26, §
52).
149. The Court
notes that the first applicant's domestic circumstances seriously deteriorated
in 1994 (see paragraph 13 above). It is particularly struck by the negative
role played by her former husband. The case file shows that it was he who was
largely responsible for the violent atmosphere within the family through his
repeated assaults on the children and his former wife, which led the first
applicant to lodge a criminal complaint (see paragraph 13 above).
150. However,
it must be noted, too, that even after separating from her former husband, the
first applicant found it difficult to look after her children. In that
connection, the Court attaches weight to the report of 9 June 1997 by the
neuropsychiatrist employed by the local health authority (see paragraph 24
above), in which she expressed the view that the first applicant was suffering
from a personality disorder and was incapable of managing the complex situation
of her family and children. The problem is compounded by the severe trauma
suffered by the elder child as a result of the paedophile abuse of him by a
social worker who succeeded in ingratiating himself with the first applicant's
family.
151. Under
those circumstances, the Court agrees with the Commission on this point and
considers that against that background the authorities' intervention, through
the suspension of the first applicant's parental rights and the temporary
removal of the children from their mother's care, was based on relevant and
sufficient reasons and was justified by the need to protect the children's
interests. Consequently, there has been no violation of Article 8 of the
Convention on that account.
2. Contact between the
first applicant and her children
(a) Submissions
of those appearing before the Court
(i) The
first applicant
152. The first
applicant observed, firstly, that she could not understand why she had been
prevented from seeing her elder son since the decision of
153. As to the
accusations that had been made against her in July 1998, she submitted that it
was absurd to have interrupted a relationship as sensitive as that between
mother and son because, if at the end of the proceedings she was found
innocent, she would have suffered irreversible harm. In that connection, she
complained that the authorities had used double standards: the Youth Court had
cited the accusations against her (even though they had not resulted in her
being committed for trial) as the reason for separating her from her children
for a lengthy period, whereas it had continued to place children at “Il
Forteto”, despite the final convictions of two leaders of that community for
serious offences against children in their care.
154. The first
applicant also alleged that social services in fact had a very negative view of
her that was in the process of strongly influencing her elder son to the point
where he had shown a hostility towards her that had not previously been
present.
(ii) The
Belgian Government
155. The
Belgian Government submitted, as its principal contention, that when in March
1998 the Youth Court had ordered the implementation of a preparatory programme
for contact with M., the issue whether the suspension of contact with G. should
continue had not been raised, even though the psychiatric report that had been
ordered by the Youth Court on 18 November 1997 had concerned both children.
156. As to the
suspension of the contact with the younger son that had already been scheduled
for 8 July 1998 the Belgian Government observed that while it was defensible in
principle, in practice it had to be noted that:
– the
allegations that had culminated in the child being questioned had been known to
the authorities for seven months (since
– the matters
revealed implicated only the child's father and there was only a possibility
that the investigation would also encompass the first applicant, as the public
prosecutor had indicated in his notes of 18 and 26 June 1998;
– M. was not
questioned until
157. In fact,
M. was not questioned until the Youth Court had delivered its decision of
158. Even after
the decision of
(iii) The
Italian Government
159. The
respondent Government observed, firstly, that it was not until 4 November
1997, that is to say two months after the Youth Court's decision to place the
children at “Il Forteto”, that the first applicant had complained for the first
time that, contrary to the Youth Court's decision, she had not been given an
opportunity to see her younger son.
160. The
respondent Government went on to emphasise the ambivalent attitude of the first
applicant. In order to have a better understanding of her personality, the
Government suggested that it might be helpful to recall that during the course
of the proceedings she had described herself on a number of occasions as a
psychologist, a nurse and a gynaecologist. It was also appropriate to refer to
the proceedings currently pending before the Florence Court concerning acts
that she was presumed to have committed against her elder son (there being
serious evidence of complicity on her part), to the attempted suicide of the
daughter born of the first applicant's first marriage as a result of the
domestic violence of which she had been victim, and to the statements of the
first applicant's sister to the Florence Youth Court.
161. The
Government also argued that there was a need for preparatory counselling before
contact visits, and that such counselling should be provided at brief intervals
so as to avoid a preferential relationship developing between the mother and
M., the younger son, as that would create serious tension in the relationship
between the two brothers, a relationship which social services considered
important to maintain. Furthermore, owing to the complexity of the programme
and the desirability of verifying the effective needs of those concerned, it
had been necessary to devote time to it.
162. The
Government also referred to the difficulties social services had encountered as
a result of the first applicant's aggressive and threatening behaviour,
particularly towards her elder son, which the Government maintained was almost
certainly linked to his statements in the criminal proceedings.
163. The
postponement of the visit scheduled for
164. The
respondent Government also pointed to the commitment of the services involved
in guiding the children through an innovative programme aimed at the children's
psychological and emotional recovery and at giving them a better understanding
of their parents' role. In the light of that aim, the Government considered it
desirable for the first applicant to cooperate with social services and to stop
adopting a threatening stance against her elder son at meetings (the Government
also referred to the first applicant's refusal to heed the advice of the social
workers at the end of the meeting on 9 September 1999 to write to her
elder son).
165. Contact
visits would in any event resume in accordance with the decisions of the
specialists dealing with the case.
(iv.) The
Commission
166. The Commission
said that it was conscious of the particularly serious nature of the situation
of the first applicant's children and did not question the need to take
precautions owing to the suffering and trauma to which the children had been
exposed both generally and during the visits from their mother.
167. It
considered, however, that the total severance of relations that occurred just
as it was adopting its report was unjustified. In its view, there were no
exceptional circumstances capable of justifying a total severance of contact in
the instant case. Indeed, the authorities themselves had envisaged a resumption
of contact, at least with the younger son. In addition, total severance
appeared still more unjustified in the present case in view of the first
applicant's concerns over the community chosen for the placement, which
concerns were understandable when, inter alia, the criminal antecedents
of certain leaders of “Il Forteto” were taken into account.
168. As regards
the suspension of visits that had already been scheduled with the younger son,
the Commission expressed the opinion that the reason relied on by the
authorities – namely the fact that an investigation had been started concerning
the children's father – appeared weak, since the prosecution had not referred
to any concrete evidence against the first applicant and had confined itself to
alluding to a possible extension of the investigation to the mother.
(b) The
Court's assessment
169. The Court
reiterates, firstly: “the mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life; furthermore, the
natural family relationship is not terminated by reason of the fact that the
child has been taken into public care ...” (see the Eriksson v. Sweden judgment
of 22 June 1989, Series A no. 156, p. 24, § 58). As the Court has previously
observed, “... taking a child into care should normally be regarded as a
temporary measure to be discontinued as soon as circumstances permit and ...
any measures of implementation of temporary care should be consistent with the
ultimate aim of reuniting the natural parent and the child ... In this regard,
a fair balance has to be struck between the interests of the child in remaining
in public care and those of the parent in being reunited with the child ... In
carrying out this balancing exercise, the Court will attach particular
importance to the best interests of the child, which, depending on their nature
and seriousness, may override those of the parent. In particular, ... the
parent cannot be entitled under Article 8 of the Convention to have such
measures taken as would harm the child's health and development. (see the
Johansen v.
170. The Court
considers, firstly, that the decision of
171. The Court
further notes that although the decision of
172. Indeed, a
mere five months later, on
173. However,
once again, despite an order of the Youth Court for the resumption of visits by
174. What is
more, the first visit did not prove to be the beginning of regular and frequent
contact to assist the children and their mother in rebuilding their
relationship. It is true that the elder son expressed disappointment over the
first meeting in his letter of
175. The Court
wishes to emphasise that it does not underestimate the importance of
preparatory counselling. Indeed, it has previously said: “... the reunion of
natural parents with children who have lived for some time in a foster family
needs preparation. The nature and extent of such preparation may depend on the
circumstances of each case, but it always requires the active and understanding
cooperation of all concerned. Whilst national authorities must do their utmost
to bring about such cooperation, their possibilities of applying coercion in this
respect are limited since the interests as well as the rights and freedoms of
all concerned must be taken into account, notably the children's interests and
their rights under Article 8 of the Convention. Where contacts with the natural
parents would harm those interests or interfere with those rights, it is for
the national authorities to strike a fair balance ...” (see the Olsson v.
Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, pp. 35-36,
§ 90). In the instant case, however, it has to be observed that a single visit
could not suffice to give the children an opportunity to re-establish bonds
with their mother. Having regard to the fact that the first visit was preceded
by a preparatory phase that had already contributed to delays, the Court fails
to understand why it was not rapidly followed by further visits. It also
considers that the Government have furnished no satisfactory explanation to
justify the subsequent preparatory phase lasting a further four months and, a
fortiori, the absence of any further visit after 9 September 1999.
176. Having
carefully examined the video recordings of the first visit (see paragraph 91
above), the Court found both the visit itself and its outcome to be far less
negative than the report of social services suggests. Social services were
nonetheless given complete freedom to defer the second visit for fully four
months. Moreover, the audio recordings of the second visit (see paragraph 94
above) attest to the considerable latitude given to social services to decide
whether and when further meetings should take place.
177. On that
subject, it should be borne in mind that there is a significant danger that a
prolonged interruption of contact between parent and child or too great a gap
between visits will undermine any real possibility of their being helped to
surmount the difficulties that have arisen within the family and of the members
of the family being reunited. (The danger is even greater for the younger
child, who was very young when the separation occurred.)
178. Therefore,
in the circumstances of the present case, the Court finds it unacceptable that
social services should be able, as they have been in this instance, to alter
the practical effect of judicial decisions establishing that contact will, in
principle, take place. Given their limited number and irregular occurrence
(there have been only two in almost three years), the visits arranged to date
have for all intents and purposes been sporadic and make little sense when
viewed in the light of the principles established under Article 8.
179. It is
apparent from the case file that since the first visit social services have
played an inordinate role in the implementation of the Youth Court's decisions
and adopted a negative attitude towards the first applicant, an attitude for
which the Court finds no convincing objective basis. In reality, the manner in
which social services have dealt with the situation up till now has helped to
accentuate the rift between the first applicant and the children, creating a
risk that it will become permanent. The information contained in social
services' latest report only goes to confirm that trend (see paragraph 96
above). Faced with that evolution in the situation, the Youth Court, which
should in principle supervise the implementation of its decisions, approved the
action being taken by social services, without conducting any thorough review.
180. The fact
that there had been only two visits (after one and a half year's separation)
since its decision of
181. Article 8
demands that decisions of courts aimed in principle at facilitating visits
between parents and their children so that they can re-establish relations with
a view to reunification of the family be implemented in an effective and
coherent manner. No logical purpose would be served in deciding that visits may
take place if the manner in which the decision is implemented means that de
facto the child is irreversibly separated from its natural parent.
Accordingly, the relevant authorities, in this case the Youth Court, have a duty
to exercise constant vigilance, particularly as regards action taken by social
services, to ensure the latter's conduct does not defeat the authorities'
decisions.
182. Lastly,
having regard to the material in the case file, the Court cannot attach any
weight to the uncorroborated statements of the first applicant's sister (see
paragraph 117 above). The respondent Government cannot therefore explain away
the authorities' and social services' conduct, as they apparently seek to do,
by such vague information, especially as neither the decisions of the former
nor the reports of the latter make any reference to it. The Court further
observes that the case file contains conflicting evidence as to the current
relations between the first applicant and the former husband (see paragraphs 97
and 111 above). However, there is nothing in the case file to shows that the
uncertainty about the current relations between the first applicant and her
former husband justifies the conclusion that the first applicant is incapable
of re-establishing bonds with her children. It will be noted, too, that none of
the authorities' decisions contains sufficient information in that regard.
183. In
conclusion, the Court considers that the authorities failed to strike a fair
balance between the interests of the first applicant's children and her rights
under Article 8 of the Convention. Consequently, there has been a violation of
Article 8 on this point.
3. Decision to place the
children with the “Il Forteto” community
(a) Submissions
of those appearing before the Court
(i) The
first applicant
184. The first
applicant submitted that the philosophy of “Il Forteto”, based on the rejection
of the natural family, has not evolved since the 1970s. The aim of “Il Forteto”
would always be to separate children from their natural families, as G.'s
letters confirmed.
185. It was
apparent from the case file that in practice the children were throughout their
placement looked after, accompanied and supervised by L.R.F. and L.G., as was shown,
for example, by the tenor of L.G.'s letter of
186. The first
applicant further maintained that there were no real foster parents and that
the children were in fact looked after by people other than those to whom the
Youth Court had entrusted their care. It was significant, too, that G. never
mentioned Mrs M.G. in his letters.
187. As to the
supervision which the authorities were meant to exercise over “Il Forteto”, the
first applicant contended that in practice the relevant authorities did not compile
their reports on the dates indicated by the Government. Thus, the first report
by social services had been compiled in February 1998, the second in June 1998
and the third only in November 1999. Moreover, the six-monthly inspections
required by section 9 of Law no. 184 of 1983 had not taken place.
188. Lastly,
the first applicant said that “Il Forteto” appeared to have been given
considerable latitude in deciding on the arrangements for children in its care
and to enjoy substantial support from social services. That fact, coupled with
delays in implementing the authorities' decisions, compromised the effective
application of those decisions.
(ii) The
Belgian Government
189. The Belgian
Government noted firstly that the two leaders of “Il Forteto” who had been
convicted in 1985 had not undergone rehabilitation and that at the time of the
criminal proceedings the Italian authorities continued to entrust minors into
their care. It added that contrary to the allegations of the Italian
Government, it was apparent from the case file that the two leaders had played
an active role in the proceedings concerning the first applicant's children.
190. While not
endorsing the applicants' hasty conclusions that L.R.F. and L.G. continued to
commit offences against children, the Belgian Government considered that care
orders constituted such a serious interference in the family domain that their
implementation had to be organised within a structure that was above all
suspicion. As with Article 6 of the Convention, appearances were therefore
relevant. Consequently, institutions fostering minors in difficulty had to
provide every guarantee that they were reliable and competent. The presence
within the structure of people with criminal convictions – albeit from long ago
– seriously undermined the confidence which such institutions should inspire.
191. The
Belgian Government also observed that “Il Forteto” carried on a commercial
activity for profit, which was hardly consistent with the objectives of
providing welfare assistance to minors. The participation of its members on
consultative boards that provided the courts with opinions on whether care
orders should be made seemed hardly appropriate.
192. Lastly,
the methods used in “Il Forteto” appeared to be aimed at severing relations
between the children and the natural family. That did not seem consistent with
the spirit of fostering within the family implicit in Article 8 of the Convention.
(iii) The
Italian Government
193. The
respondent Government recognised that the relevant authorities had probably
been aware of L.R.F.'s and L.G.'s convictions when they decided to place the
children at “Il Forteto”. However, the Government emphasised that, so far as
public opinion in
194. Moreover,
“Il Forteto” enjoyed the confidence of many local and regional institutions and
had been the subject matter of a number of studies. The Government cited in
particular an article that had been published in Il Mulino, one of Italy's most
famous publishing houses, based on research conducted on-site by psychologists,
doctors, sociologists and neuropsychiatrists specialising in children.
Moreover, the positive results obtained with children placed at “Il Forteto”
had also prompted studies by institutions from other countries. Even the
Florence Court of Appeal had, in its judgment of 1985, attached importance to
the evidence of numerous witnesses attesting to the positive results obtained
at “Il Forteto”. The relevant judge at the Youth Court had not noted anything
negative about the community or its members. “Il Forteto” was also under the
supervision of the Ministry of Employment, which had not noted any problems on
its last inspection. Inspections were also carried out by the region and the
province. In any event, minors at “Il Forteto” were closely supervised by the
relevant social services departments and the Youth Court was kept informed at
all times.
195. Against
that background, convictions dating back more than twenty years lost some of
their significance.
196. Furthermore,
neither L.R.F. nor L.G. had played any role in the programmes for the
rehabilitation of minors in the care of the community as, on the contrary, that
task was the responsibility of the numerous social workers and specialised
teams who worked under the supervision of the Youth Court. Mr G.C. and Mrs M.G.
looked after the children and, with the agreement of social services, received
help from Mrs M.C.-G., Mr L.G.'s wife, and Mr S. with the children's school
activities (they attended a State school in the locality) and the various
sessions preparing them for contact with their mother and grandmother.
197. As regards
the letters written by the elder child, the Government considered that no
significance attached to the fact that one of them had been written in the
presence of the foster parents and Mr R., since the child's needs had changed
and he often criticised his parents, particularly his mother, for failing to
help him after they had been informed of the sexual abuse inflicted on him by a
family friend. As to the letter of
198. It had to
be stressed also that a number of items of evidence on the case file indicated
that the children's psychological condition was constantly and markedly
improving.
199. The
Government concluded by saying that the placement of the first applicant's
children at “Il Forteto” had been viewed positively by all the relevant
services, which enjoyed the confidence of the Youth Court. In any event, there
was no reason for modifying such a complex and difficult programme,
particularly bearing in mind the first applicant's lack of cooperation.
(iv) The
Commission
200. The
Commission expressed the view that the fact that the two members of the
community concerned continued to hold important posts within “Il Forteto” was a
cause for concern. It observed, however, that the first applicant's children
had not been placed in the care of the community leaders concerned, added to
which it was true that the offences for which they had been convicted dated
back twenty years and there was nothing on the case file to allow of the
conclusion that the persons concerned had committed other acts of the same type
subsequently or, above all, that they had direct control over the children or a
decisive influence over the foster parents. The Commission also considered that
the improvement in the children's health meant that the risk that the
authorities' choice of “Il Forteto” should prove to be manifestly contrary to
the children's interests could be discounted.
(b) The
Court's assessment
201. The Court
considers it appropriate first to restate certain principles established in its
earlier decisions which may help to put the difficult issues to which this part
of the application gives rise into context. In particular, in the Johansen v. Norway judgment cited
above, the Court said (pp. 1003-04, § 64):
“...
the Court will have regard to the fact that perceptions as to the
appropriateness of intervention by public authorities in the care of children
vary from one Contracting State to another, depending on such factors as
traditions relating to the role of the family and to State intervention in
family affairs and the availability of resources for public measures in this
particular area. However, consideration of what is in the best interest of the
child is in any event of crucial importance. Moreover, it must be borne in mind
that the national authorities have the benefit of direct contact with all the
persons concerned ..., often at the very stage when care measures are being
envisaged or immediately after their implementation. It follows from these
considerations that the Court's task is not to substitute itself for the
domestic authorities in the exercise of their responsibilities for the
regulation of the public care of children and the rights of parents whose
children have been taken into care, but rather to review under the Convention
the decisions that those authorities have taken in the exercise of their power
of appreciation ...
The
margin of appreciation so to be accorded to the competent national authorities
will vary in the light of the nature of the issues and the seriousness of the
interests at stake ... Thus, the Court recognises that the authorities enjoy a
wide margin of appreciation in assessing the necessity of taking a child into
care. However, a stricter scrutiny is called for both of any further
limitations, such as restrictions placed by those authorities on parental
rights and access, and of any legal safeguards designed to secure an effective
protection of the right 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 are effectively curtailed.”
202. The Court
notes that two of the principal leaders and co-founders of “Il Forteto” were
convicted in 1985 by the Florence Court of Appeal of the ill-treatment and
sexual abuse of three handicapped people staying in the community. They were
given an amnesty in respect of an alleged offence of fraudulently holding
themselves out as psychologists with diplomas from the universities of
203. The Court
is not called upon to express an opinion on “Il Forteto” as such or on the
general quality of care which that community offers to children placed there.
Nor is it for the Court to say whether or not the confidence which a number of
institutions have in “Il Forteto” is justified. Furthermore, although the
judgment of the Florence Court of Appeal in 1985 discloses information about
the atmosphere and practices in “Il Forteto” at the end of the 1970s, that
information refers to the situation in the community more than twenty years ago
and the Court has no information enabling it to express a view on the situation
at “Il Forteto” today. In any event, it is not for the Court to become involved
in the debate between the supporters and opponents of “Il Forteto”.
204. However,
the fact that the two members of the community convicted in 1985 continue to
hold positions of responsibility within the community cannot be regarded as
innocuous and for practical purposes means that a detailed examination of the
concrete situation of the first applicant's children is called for.
205. The Court
notes that, contrary to the assertions of the respondent Government, the
evidence on the case file shows that the two leaders concerned play a very
active role in respect of the first applicant's children.
– L.R.F.
attended the meeting of
– At the
interview on 15 December 1997, the elder child was accompanied by, inter
alia, Mrs M.C.-G., who, as the Government recognised (see paragraphs 114
and 196 above), is in fact L.G.'s wife (see paragraph 56 above).
– It was L.G.
who signed the letter sent to the public prosecutor and the Youth Court on
– On
206. The Court
considers that those facts clearly attest to the active role played by those
two members of the community in the care of the first applicant's children. It
has strong reservations about the fact that, under arrangements made by the
public authorities for taking children into care, two people who were convicted
– albeit twenty years earlier – of the ill-treatment and abuse of persons
entrusted into their care at the time can play such an active role within the
same community.
207. The
Court's reservations are reinforced by the fact that, as the Government
acknowledged (see paragraph 193 above), the Youth Court was aware of the
convictions of the two members of the community concerned when it took the
decisions regarding the first applicant's children. Those reservations remain
even though neither L.R.F. nor L.G. have committed any further offences since
1985 and there is nothing in the case file to indicate that they or other
members of the community or persons staying there have abused or ill-treated
the first applicant's children or other children staying at “Il Forteto”. A
further contributory factor is the sexual abuse to which the elder child was
subjected in the past (see paragraphs 14-19 above). The combination of those
two factors (the past sexual abuse against the elder child and the criminal
antecedents of L.R.F. and L.G.), fully account for the first applicant's
concerns about her children's placement at “Il Forteto” and make them
understandable from an objective standpoint, especially bearing in mind her
position as a mother separated from her children.
208. It should
also be noted that the authorities have at no point explained to the first
applicant why, despite the men's convictions, sending the children to “Il
Forteto” did not pose a problem. In the Court's view, such a failure to
communicate is not compatible with the duties incumbent on States to act fairly
and to provide information when taking serious measures interfering in a sphere
as delicate and sensitive as family life. Unless full and pertinent
explanations are given by the authorities concerned, parents should not be
forced, as they were in the instant case, merely to stand by while their
children are entrusted into the care of a community whose leaders include
people with serious previous convictions for ill-treatment and sexual abuse.
The situation was compounded by the following two sets of circumstances.
209. Firstly,
some of the leaders of “Il Forteto”, including one of the two men convicted in
1985, appear to have contributed substantially to delaying or hindering the
implementation of the decisions of the Florence Youth Court to allow contact
between the first applicant and her children. Thus, it can be seen from the
case file that after the decision of 9 September 1997 allowing the first
applicant to see her younger son and before the Youth Court definitively
decided on 15 March 1998 to make the resumption of contact with M. conditional
on attending a preparatory programme, the leaders of “Il Forteto”, in disregard
of the operative provisions of the Youth Court's decision, seem to have
prevented the first applicant from seeing either child, but especially the
younger son. Such conduct is, in the Court's view, unacceptable. In addition,
it would appear that the letter sent by L.R.F. to the deputy public prosecutor
on 29 June 1998 recommending that contact be deferred and the deputy public
prosecutor's letter to the Youth Court just three days later implicitly
suggesting that the scheduled visits (which the public prosecutor said he was
aware of) should be postponed (see paragraphs 66 and 171 above) were not wholly
unconnected.
210. Secondly,
the evidence points to the first applicant's children having been subjected to
the mounting influence of the leaders at “Il Forteto”, including, once again,
one of the two men convicted in 1985. That influence was exerted with the aim
of distancing the boys, particularly the elder boy, from their mother. Thus,
the Court notes in particular that the latter acknowledged to a specialist on
27 February 1999 that the letter sent to the public prosecutor's office had
been written in the presence, inter alia, of a person with the same
first name as L.R.F. The Court cannot express any view as to the genuineness of
the assertions made in the elder child's letters. However, the presence of
adults, including, in all likelihood, L.R.F., when a 12-year-old child is
writing letters to the president of a court or a public prosecutor cannot
objectively be regarded as of no importance. Indeed, the Court finds the
changes in attitude, particularly of the elder child towards his mother,
worrying (an example of such a change can be seen in the letter of 2 March 1999
– see paragraph 87 above – which was sent just four days after he had told a
specialist on 27 February 1999 – see paragraph 116 above – that he would be
pleased to see his mother again).
211. In the
Court's view, the facts show that the leaders of “Il Forteto” responsible for
looking after the first applicant's children helped to deflect the
implementation of the Youth Court's decisions from their intended purpose of
allowing visits to take place. Moreover, it is not known who really has
effective care of the children at “Il Forteto”, as the various people who
accompany the children outside its confines do not appear merely to be
assisting the foster parents as the Government asserted (see paragraph 196
above), since they are identified on a number of records as the foster
parents (see paragraphs 56, 60 and 68 above). That doubt is confirmed by the
evidence, which the Government did not contest, given by the two officially
assigned experts (see paragraph 43 above).
212. That
situation and the relevant leaders' criminal antecedents should have prompted
the Youth Court to increase its level of supervision regarding the way in which
the children were being looked after at “Il Forteto” and the influence of the
leaders concerned over the children and their relations with their mother.
However, that did not occur. In practice, the leaders concerned work in a
community which enjoys very substantial latitude and does not appear to be
subject to effective supervision by the relevant authorities. In that
connection, the Court also notes that the respondent Government failed to
produce sufficient evidence to show that the six-monthly inspections by the
guardianship judge, required by section 9 of Law no. 184 of 1983, did in fact
take place. Indeed, the respondent Government have not produced any reports by
the guardianship judge relating to such inspections.
213. Furthermore,
the negative impact on the prospects of rebuilding a relationship with the
mother of the attitude and conduct of the people responsible for the children
at “Il Forteto”, including the two leaders convicted in 1985, combines with the
social services' negative attitude referred to above, and is partly responsible
for depriving the first applicant of any serious prospect of one day being
reunited with her children.
214. As regards
the absence of any time-limit on the children's stay at “Il Forteto”,
experience shows that when children remain in the care of a community for a
protracted period, many of them never return to a real family life outside the
community. Accordingly, the Court sees no valid justification for the failure
to put a time-limit on the care order concerning the first applicant's
children, especially as that failure appears to contravene the relevant
provisions of Italian law, namely section 4 of Law no. 184 of 1983.
215. The fact
of the matter is that the absence of any time-limit on the care order, the
negative influence of the people responsible for the children at “Il Forteto”,
coupled with the attitude and conduct of social services, are in the process of
driving the first applicant's children towards an irreversible separation from
their mother and long-term integration within “Il Forteto”. While a number of
factors point to there having been a considerable improvement in the children's
psychological and physical condition since the placement (see paragraphs 118-22
above), that process, which, it will be remarked, undermines both the role of
the courts dealing with the case and of their decisions, presents a real danger
that the relations between the first applicant and her children will be
severed.
216. Consequently,
the Court considers that the authorities have failed to show the degree of
prudence and vigilance required in such a delicate and sensitive situation, and
have done so to the detriment not just of the first applicant's rights but also
of the superior interests of the children. Accordingly, in the circumstances
described above, the uninterrupted placement to date of the children at “Il
Forteto” does not satisfy the requirements of Article 8 of the Convention.
4. Position of the
second applicant
(a) Submissions
of those appearing before the Court
(i) The
second applicant
217. The second
applicant alleged, firstly, that section 12 of Law no. 184 of 1983, which
accords priority to children being fostered with close relatives of known address,
had been infringed since the possibility of the children living with her had
been disregarded. In that connection, she said that G. had lived with her until
1992 and they enjoyed an excellent relationship.
218. She added
that in order to comply with the Youth Court's recommendations she had moved to
(ii) The
Italian Government
219. The
Italian Government, which did not deny that the relationship between the second
applicant and her grandchildren came within the scope of the right to respect
for family life guaranteed by Article 8, maintained that the authorities had
examined the second applicant's requests and were working towards the gradual
re-establishment of relations between the children and their grandmother. That
said, the most recent developments, in particular, the second applicant's delay
in contacting social services after the cancellation of the first preparatory
session, betrayed, in the Government's view, a lack of enthusiasm for actually
looking after the children. Referring to explanations given by social services,
the Government also contended that priority had to be given to preparing the
mother's visits.
(iii) The
Commission
220. The
Commission considered that the authorities' decision not to respond to the
second applicant's request for the children to be entrusted into her care was
based on relevant grounds, in particular, the fact that it would have been
undesirable for the authorities to lose all direct control over the children's
situation. The Commission also described the second applicant's behaviour as incoherent.
(b) The
Court's assessment
221. The Court
notes, firstly, that it was common ground that issues relating to the relations
between the second applicant and her grandchildren were covered by Article 8 of
the Convention. It also points out in that connection that “ 'family
life', within the meaning of Article 8 includes at least the ties between near
relatives, for instance those between grandparents and grandchildren, since
such relatives may play a considerable part in family life. 'Respect' for a
family life so understood implies an obligation for the State to act in a
manner calculated to allow these ties to develop normally” (see the Marckx v.
Belgium judgment of 13 June 1979, Series A no. 31, p. 21, § 45).
222. As to the
second applicant's request to be given care of the children, the Court notes
that section 12 of Law no. 184 of 1983 gives priority to children being placed
with close members of the family living at a known address. The Court notes,
however, that the evidence on the case file indicates that the second applicant
would have substantial difficulty in looking after the children properly. She
was unable to make herself available for an initial preparatory counselling
programme prior to contact with the children, as she was living in
223. With
regard to contact between the second applicant and the children, the Court notes
that her attitude was initially characterised by a degree of incoherence. As
the Commission observed, it is difficult to comprehend why the second applicant
should refuse to take part in any preparation before seeing the children on the
grounds that she lived too far away when she had asked to be allowed to visit
twice a week.
224. Subsequently,
despite the decision of the Florence Youth Court on 22 December 1998 that
contact between the second applicant and the children should start before 15
March 1999 after a preparatory programme rendered possible at that stage by the
second applicant's move to Italy, she failed to get in touch but simply waited
to hear from social services, even after the expiry of the time-limit fixed by
the Youth Court. Nor did she consider it necessary to inform the authorities
when she travelled to Belgium so that the two notices of appointment which
social services did send, albeit belatedly, were to no avail.
225. Although
the Court is not persuaded by the Government's explanation for the delay in
implementing the Youth Court's order concerning the second applicant (the need
for social services to concentrate on preparing contact with the first
applicant), it considers that the second applicant has not furnished any valid
explanation for her failure to act after the time-limit expired or to inform
the relevant authorities when she travelled to Belgium.
226. In the
Court's view, the second applicant's conduct betrays a lack of enthusiasm for seeing
her grandchildren again, a factor which offsets the authorities' delay.
227. In the
light of the foregoing considerations, the Court concludes that there has been
no violation of Article 8 of the Convention as regards the second applicant.
D. Applicability of Article 6 § 1 and Article 14 of the
Convention
228. The
applicants did not pursue before the Court their complaints of violations of
Article 6 § 1 (for delays in the examination of their appeals before the
domestic courts) and Article 14 of the Convention (for allegedly discriminatory
treatment).
229. In its
report, the Commission considered that in the circumstances of the case, and
having regard in particular to the fact that at the date of its report no
concrete action had been taken following the appeal of 3 December 1997,
the complaint under Article 6 § 1 about the length of the proceedings should be
regarded as having been absorbed by the issues related to Article 8 of the
Convention. As to Article 14, it took the view that that provision was of no
relevance to the instant case, as the applicants had not alleged any actual
discrimination within the meaning of that Article.
230. In the
light of its decision under Article 8, the Court sees no reason not to follow
the conclusions of the Commission on this point and accordingly holds that no
separate issue arises under these provisions of the Convention.
II. ALLEGED violation of ARTICLE 3 OF THE CONVENTION
A. Whether the treatment
allegedly inflicted on the children at
“Il Forteto” amounted to a violation of Article 3 of the Convention
231. The first
applicant complained, on behalf of her children, of a violation of Article 3 of
the Convention on account of the risk that they would be subjected to improper
treatment at “Il Forteto”. In addition, the danger that the children would
again be subjected to paedophile assaults or exposed to an environment in which
such assaults had been carried out in the past by at least some members of the
cooperative was in itself contrary to Article 3.
232. Article 3
of the Convention provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
233. The
Government contended in particular that there was no evidence on the case file
to prove that the two leaders concerned, or other members of the community or
people staying there, were abusing or ill-treating the first applicant's or
other children staying at the home.
234. The
Commission expressed the opinion that there was no concrete evidence in the
case file apt to prove beyond all reasonable doubt that the children had been
subjected to treatment contrary to Article 3.
235. Despite
the fact that some of the witness statements produced by the first applicant
(see paragraphs 38-40 above) give cause for concern and the Government have not
contested their veracity, the Court agrees with the opinion of the Commission,
as there is nothing on the case file to indicate that the children have been
subjected to treatment contrary to Article 3 of the Convention at “Il Forteto”.
It should also be noted in that connection that the first applicant has not
lodged a criminal complaint with the relevant domestic authorities.
Consequently, there has been no violation of Article 3.
B. Whether the distress caused the applicants amounted to
a violation of Article 3 of the Convention
236. In their
memorial lodged with the Court on 3 March 1999, the applicants alleged that
there had also been a violation of Article 3 of the Convention in that their
situation, taken as a whole, had caused them suffering and distress.
237. The Court
notes that that complaint, which in substance raises no separate issue from the
issues arising under Article 8 of the Convention, was not declared admissible
by the Commission. The applicants are therefore estopped from raising it.
III. ALLEGED violation of ARTICLE 2 OF PROTOCOL No. 1
238. The first
applicant complained, lastly, that her children did not have adequate schooling
and that the only education they seemed to be receiving was that provided
within the community. She alleged that there had therefore been a violation of
Article 2 of Protocol No. 1.
239. Article 2
of Protocol No. 1 provides:
“No
person shall be denied the right to education. In the exercise of any functions
which it assumes in relation to education and to teaching, the State shall
respect the right of parents to ensure such education and teaching in
conformity with their own religious and philosophical convictions.”
240. The
Government maintained that the first applicant's allegations were unfounded as
the children were under constant supervision. They added that some delay in the
elder child's attending school had been inevitable in view of his delicate
personal circumstances and the desirability of ensuring his gradual
reintegration into the school system.
241. The
Commission considered that the first applicant's fears no longer appeared
founded as the case file showed, in particular, that the elder child was now
attending school. The initial delay seemed, moreover, to have been warranted
when the dramatic situation which he had just come through was taken into
account.
242. The Court
notes that the case file shows that the first applicant's elder son began
school shortly after arriving at “Il Forteto” (see paragraph 47 above). The
younger child has just reached school age and the Court notes form the case
file that he is in fact attending a nursery school (see paragraph 123 above).
Furthermore, with regard to the influence of “Il Forteto” on the supervision
and education of the children, the Court refers to its conclusions on the
placement of the children within that community (see paragraphs 201-16 above).
243. Consequently,
there has been no violation of Article 2 of Protocol No. 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
244. Article 41
of the Convention provides:
“If
the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party concerned
allows only partial reparation to be made, the Court shall, if necessary,
afford just satisfaction to the injured party.”
A. Damage
245. The first
applicant sought 100,000,000 Italian lire (ITL) in reparation for non-pecuniary
damage. She also claimed ITL 700,000,000 under that head on behalf of the
children for damage they had sustained. The latter claim was based, in
particular, on the complaint that the authorities had not sought a solution
allowing for the children to be placed with family relatives.
246. The first
applicant also claimed ITL 300,000,000 in the event of a finding by the Court
that the children's placement had not been suitable.
247. As regards
pecuniary damage, the first applicant claimed ITL 15,000,000 for the loss
of her former job, which she attributed to the difficulties caused by her
children's situation that had meant her repeatedly having to take time off
work.
248. The
respondent Government confined themselves to alleging that there was no
evidence supporting the first applicant's claims. They also contended that any
finding of a violation of the Convention would give rise to complex and
sensitive issues, particularly before the Committee of Ministers, regarding the
adoption of individual measures.
249. The Court
points out that by Article 46 of the Convention the High Contracting Parties
undertook to abide by the final judgments of the Court in any case to which
they were parties, execution being supervised by the Committee of Ministers. It
follows, inter alia, that a judgment in which the Court finds a breach
imposes on the respondent State a legal obligation not just to pay those
concerned the sums awarded by way of just satisfaction, but also to choose,
subject to supervision by the Committee of Ministers, the general and/or, if
appropriate, individual measures to be adopted in their domestic legal order to
put an end to the violation found by the Court and to redress so far as
possible the effects (see, mutatis mutandis, the Papamichalopoulos and
Others v. Greece (Article 50) judgment of
31 October 1995, Series A no. 330-B, pp. 58-59, § 34). Furthermore, subject to
monitoring by the Committee of Ministers, the respondent State remains free to
choose the means by which it will discharge its legal obligation under Article
46 of the Convention, provided that such means are compatible with the
conclusions set out in the Court's judgment.
250. Accordingly,
under Article 41 of the Convention the purpose of awarding sums by way of just
satisfaction is to provide reparation solely for damage suffered by those
concerned to the extent that such events constitute a consequence of the
violation that cannot otherwise be remedied.
251. As regards
pecuniary damage, the Court considers that the first applicant has not produced
concrete evidence in support of her allegations.
252. As to the
non-pecuniary damage, the Court considers that the first applicant undoubtedly
sustained such damage, as the contact organised with her children to date has
been inadequate, visits have been delayed, no explanation was given for the
authorities' decision to place the children at “Il Forteto”, and the
re-establishment of relations with the children was hindered by the conduct of
those responsible for the children at “Il Forteto”. The Court further notes
that since the children were taken into care on
253. The Court
considers, further, that the children personally sustained damage, too, as the
increasing risk of an irreversible severance of ties with, in particular, their
mother and the danger that their continued placement at “Il Forteto” would
prevent them from one day enjoying family life outside the community did not
tally with the authorities' avowed aim of protecting the children's interests.
The Court therefore considers that it must take that damage into account with
reference to the children's position as applicants and, ruling on an equitable
basis, it awards each child in person ITL 50,000,000.
B. Costs and expenses
254. The first
applicant sought ITL 11,550,000 as reimbursement for the legal costs and
experts' fees incurred in the proceedings before the Italian courts.
255. The first
applicant further claimed ITL 121,463,603 for legal fees incurred before the
Commission and the Court (and produced a fee note). In that connection, the
first applicant's lawyer has requested that the fees be paid directly to her.
To that end, she has produced a certificate that the first applicant has paid
her the sum of ITL 800,000 on account.
256. The
Government left the issue to the Court's discretion.
257. With regard
to the costs incurred before the domestic courts, the Court observes that
although at least part of those costs were incurred with a view to obtaining
redress of the various violations of Article 8 of the Convention, the first
applicant has failed to produce any evidence in support. Her claims under that
head must therefore be dismissed.
258. As to the
costs incurred before the Convention institutions, the Court considers that the
case was indisputably complex. It nevertheless finds the sum requested by the
first applicant's lawyer excessive. Ruling on an equitable basis and having
regard to the practice of the Convention institutions on this subject, it
considers a sum of ITL 26,250,000 to be
reasonable. From that amount should be deducted the sum which the lawyer has
received on account from the applicants (ITL 800,000) and the sums already paid
to her by way of legal aid for the applicants that was granted by both the
Commission and the Court. The latter amounts come to a total of 28,030.75 French
francs (ITL 7,765,000). Accordingly, the balance payable to the applicant's
lawyer, in accordance with her request, comes to ITL 17,685,000.
C. Default interest
259. According
to the information available to the Court, the statutory rate of interest
applicable in
FOR THESE REASONS, THE COURT unanimously
1. Dismisses the Government's preliminary
objection;
2. Holds that there has been no violation
of Article 8 of the Convention on account of the suspension of the first
applicant's parental rights and of the fact that her children were taken into
care;
3. Holds that there has been a violation
of Article 8 of the Convention on account of the delays in and limited number
of contact visits between the first applicant and her children;
4. Holds that there has been a violation
of Article 8 of the Convention on account of the placement of the first
applicant's children at “Il Forteto”;
5. Holds there has been no violation of
Article 8 of the Convention as regards the second applicant;
6. Holds that no separate issue arises
under Article 6 § 1 and Article 14 of the Convention;
7. Holds that there has been no violation of
Article 3 of the Convention on account of the treatment of the first
applicant's children at “Il Forteto”;
8. Holds that the applicants are estopped
from raising their complaint of a violation of Article 3 of the Convention
based on the suffering linked to their situation taken as a whole;
9. Holds that there has been no violation
of Article 2 of Protocol No. 1;
10. Holds
(a) that the respondent
State is to pay the first applicant, within three months, ITL 100,000,000 (one
hundred million Italian lire) in respect of non-pecuniary damage;
(b) that the respondent
State is to pay each of the first applicant's children in person, within three
months, ITL 50,000,000 (fifty million Italian lire) in respect of non-pecuniary
damage;
(c) that the respondent
State is to pay the first applicant's lawyer, within three months, ITL
17,685,000 (seventeen million six hundred and eighty-five thousand Italian
lire) in respect of costs and expenses;
(d) that the respondent
State is to pay the first applicant, within three months, ITL 800,000 (eight
hundred thousand Italian lire) in respect of the fees which the first applicant
has paid her lawyer on account;
(e) that simple interest at an annual rate of
2.5% shall be payable from the expiry of the above-mentioned three months until
settlement;
11. Dismisses the
remainder of the applicants' claim for just satisfaction.
Done in English and in French, and notified in
writing on
Luzius
Wildhaber
President
Michele de Salvia
Registrar
In accordance with Article
45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring
opinion of Mr Zupancic is annexed to this judgment.
L.W. M. de S.
CONCURRING OPINION OF JUDGE ZUPANCIC
I fully agree with the
judgment in this case. I thought it might be useful, however, to make a few
general observations concerning the procedurally idiosyncratic nature of cases
such as the one we have decided today.
Cases such as Scozzari
and Giunta v. Italy are not paradigmatic legal disputes. They generate
specific problems relating to our own doctrine of access to court and to the
rule of law itself. Since the Olsson v. Sweden (no. 1) judgment of 24
March 1988 (Series A no. 130) and up to the recent case of Nuutinen v.
Finland (no. 32842/96, ECHR 2000-VIII), the whole series of Article 8, that
is, family law, cases have raised specific procedural difficulties. These
difficulties are offset mostly, as we shall see, by the non-retrospective
nature of judgments in family law disputes. For example, difficult last-minute
developments in the evolving fact patterns oblige the Court to engage in
first-instance fact-finding and even in probability assessments.
Legal theory has, to the
best of my knowledge, not offered any ready-made solutions to the recurring
questions outlined below.
A classic legal dispute
has certain procedural characteristics. First, right and remedy are usually
interdependent; second, the lawsuit is retrospective, that is, it usually
concerns only past events (facts); third, the polarities of the legal aspects
of the dispute must be monocentric, that is, ultimately there is one question
to be decided; fourth, there is a deontological tension between the legally
relevant facts and the applicable norm.
The so-called “best
interests of the child”, for example, are not specific enough to establish the
usual judicial aut-aut monocentric polarity. This, in turn, obliges the
court to become involved in polycentric choices, that is, to assume an active parens
patriae role. Moreover, this active involvement of the court is a
continuing one, sometimes until the child reaches maturity.
The impartiality, that is,
the passive non-involvement of the court, as well as the respective roles of
the parties to the dispute are also predetermined by specific characteristics
of family law cases. For example, the passive impartiality of the courts
clearly results from the interaction of the two polarised partialities of the
parties. In turn, the case is in this sense ripe – I am referring to the
ripeness aspect of the justiciability doctrine – once it is focused on one or
two essential issues. This focus, while shifting as a mirror image of the
burden of proof, is nevertheless fixed in the past, i.e. it is entirely
retrospective. The finality of the judgment, which is irrebuttably presumed to
be valid (res judicata pro veritate habetur), depends on the
pre-existent finality of the facts, that is, on the judicial retrospective. In
the end, implementation, enforcement and execution of the judgment, too, as I
pointed out in my dissenting opinion in Nuutinen, may be adversely
affected.
Furthermore, the choice of
the applicable norm hinges on the legally relevant facts (past events) and,
vice versa, what facts are legally relevant depends in turn on the choice of
the norm. This dialectical process implies a fact pattern that has crystallised
in the past, not one that is constantly changing. The normal truth-finding
function of the courts of law is to consider and assess such crystallised
facts, rather than to pronounce on people's future suitability and fitness to
perform parental functions, for example. Epistemologically, the law of evidence
is predicated on the historical method, not on the assessment of future
probabilities.
In both national and
international appellate jurisdictions these complications are even more
critical. In such cases, the appellate court is faced with more recent events,
that is, events that are subsequent to the decisions of their lower courts. The
appellate courts, in other words, are faced with the continuous evolution –
improvement or deterioration – of the disrupted family relationship. The appellate
court is therefore volens nolens involved in a fresh appraisal of new
facts (questiones facti). It cannot limit itself, as it would normally
do, to the fact pattern as established by the lower courts and recorded in the
case file but must, on the contrary, remain receptive to the latest
developments. This makes it difficult for an appellate court to limit itself to
questions of law (questiones juris).
This puts even the
international court of last appeal, although further removed from the direct
factual assessment of sensitive relational issues, into the uncomfortable – but
inevitable – role of a direct fact-finder. Consequently, the principle of
immediacy of fact-finding is affected. Inevitably then, since the appellate
court must reach a definable aspect of the case's complex and continuously
evolving fact pattern, there arises the need for a thoroughly reductive, namely
minimalist, judicial approach.
Also, the right to
non-disruption of family life and our own remedy of just satisfaction cannot be
in any meaningful sense interdependent. In paragraph 249 of the judgment we
outlined our hope that the
In the past, I think, the
Court has performed a formidable service both in finding wise solutions to
individual cases and in establishing general principles and doctrines governing
certain aspects of European family law. By virtue of the case-law, it is now
largely clear what the rights and obligations of the Contracting States under
the European Convention on Human Rights are, or more specifically, what the
limits on proportional interference in disrupted family relationships are.
To summarise these
principles and doctrines, the ultimum remedium of interference is
justified if (a) it is objectively in the best interest of the child, (b) it
balances the rights of the parents (and other close relatives) against the best
interests of the child and (c) it demonstrably strives to re-establish the
parent-child relationship. Needless to say, (d) the right to speedy decisions
by the family courts, which derives more from Article 8 of the Convention than
from Article 6 § 11, is here especially prominent.
The case before us,
however, raises two additional issues. The first issue concerns the intensity
as well as the continuity of the control which the State authorities are
required to exercise over the implementation of their decisions by those to
whom they have entrusted the care of the child. The second issue concerns the
parents' and children's right to the provision of alternative care that is
beyond reproach.
As to the latter issue, it
is understood that such an exceedingly grave interference in family life cannot
be proportionate unless the alternative care facility imposed by the State is beyond
reproach.
Moreover, since the
question of the nature of alternative care is usually the subject matter of a
secondary dispute between the parents and the State – arising from the primary
judicial decision to interfere in the family life – this issue merges with the
question of continuous access to the courts for parents, children and close
relatives.
A State cannot justifiably
disrupt the most fundamental human relationship, which is that between parent
and child, unless it is willing and able to continue to render judicial
decisions going beyond the retrospective res judicata of balanced
interference in the life of the family. In a simple divorce case involving a
childless couple, the State's courts may simply establish and declare an end to
the relationship and perhaps draw the necessary consequences concerning the
dividing up of property accumulated during its subsistence. If there are
children, however, extremely grave and prospective long-term decisions
must continually be made concerning their custody. Even if the child is
entrusted to one of the two parents, this is already a sphere in which the
judgment has no immutable finality.
A fortiori, in a
case in which the behaviour of both parents has proved detrimental to the
child, the decision cannot be simply to break up the family. An initial
alternative care arrangement followed by continuous judicial commitment is
required of the court. Again, this function of the family court is
idiosyncratic, because a dispute of this kind cannot in any sense be deemed as
finally resolved – at least not until the child has attained legal maturity.
Therefore, if the State does decide to interfere in the natural long-term
relationship between parent and child, it must accept that it will have
continuing future parens patriae duties and responsibilities.
Historically, the parens
patriae legal doctrine was based on the (wrong) assumption that in
family-law, civil-commitment and juvenile-delinquency cases the State acts in
loco parentis and that, therefore, the conflicting “hostile attitudes”,
typical of criminal and even private law, are here replaced by a “friendly
attitude” of the State in loco parentis. Legally speaking, there was an
irrebuttable presumption of “friendly attitude”. This presumption effectively
blocked all further access to the courts.
About thirty years ago,
however, the parens patriae doctrine collapsed in a series of
constitutional cases in different national jurisdictions. It became legally
clear that these wards of the State (children entrusted to State agencies,
committed mental patients and juvenile delinquents) found themselves in the
worst of both worlds. Due to the “friendly-attitude” presumption, children,
mental patients and juvenile delinquents lost the procedural and the
substantive guarantees of the law – but did not really receive the
treatment and the care of the State. The consequence of that was the
resurgence of strict judicial protection – “access to court” in the language of
our own case-law – and the departure from the naïve parens patriae ideology.
The case of Scozzari
and Giunta v. Italy clearly demonstrates that the State must balance its
initial decision to interfere in the family life against future parens
patriae responsibilities it has thus assumed.
These responsibilities,
more specifically, imply, first, the balancing duty of the family courts. When
they consider the possible legal interference in the family relationship, they must
be certain that the care imposed by the State will be clearly and demonstrably
better than the troubled situation the court is seeking to redress. Second,
these ex officio responsibilities of the family courts continue for so
long as the basic child-parent relationship, which should be the purpose of the
interference, is not re-established. Third, the aggrieved parties must continue
to have access to court, that is, the courts must continue to resolve secondary
disputes arising from the primary judicial decision that had interfered with
the relationship between parents and children.
In other words, if the
State's courts are, legally or otherwise unable to assume such long-term
commitments, they should not interfere.
On the other hand, the
courts cannot themselves provide the day-to-day care for the children. This is
usually entrusted to social services. However, the social services department
to which the courts have entrusted the child, must be under the court's
continuous ex officio supervision.
The strictly judicial
power of conflict resolution – i.e. the power to resolve further
disputes arising out of the initial alternative care arrangements – must not be
left to psychiatrists, psychologists, social workers, managers of alternative
care institutions, etc. The alternative custody and care arrangements, while in
place, will often generate a series of new conflicts between parents and the
welfare authorities. In many other cases decided by this Court it was apparent
that welfare authorities have a tendency to arrogate to themselves an arbitrary
decision-making power far exceeding their judicially granted authority.
Undoubtedly, this problem derives from the non-retrospectivity and other
idiosyncrasies of child custody and care cases outlined above. However, the
fundamental principle of the rule of law requires that the parents' and
children's access to court be strictly and continuously maintained.
Too much is at stake here
for these grievances to be arbitrarily decided by those authorised only to
provide the alternative care. The presumption of their bona fides must remain a
rebuttable one, i.e. subject to subsequent legal challenge and uninterrupted
access to court. Since this would amount to the so-called khadi-justice, foster
parents, social workers, psychologists, psychiatrists, alternative care
institutions, etc., cannot be arbiters in situations in which their own
decisions are the target of parents' criticism and grievance.
Procedurally, such disputes
are prima facie admissible, if the issues they raise transcend the strictures
of judicial decisions establishing the alternative care arrangements.
This issue goes to the
core of the rule of law. The doors of the family court should remain wide open.
1. Note
by the Registry. Protocol No. 11 came into force on
1. Note
by the Registry. The report is obtainable from the Registry.
1. See
the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and
Decisions 1996-III, opinion of the Commission, pp. 1023-24, §§ 106-12.
European Court of Human Rights