I incorrectly predicted that there's no violation of human rights in R.V. AND OTHERS v. ITALY.

Information

• Judgment date: 2019-07-18
• Communication date: 2016-06-02
• Application number(s): 37748/13
• Country:   ITA
• Relevant ECHR article(s): 8, 8-1
• Conclusion:
  Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.625962
• Prediction: No violation

• Inconsistent

Communication text used for prediction

The first applicant is an Italian and French national.
The second and third applicants, D. and T., are both Italian nationals.
They are the first applicant’s sons.
They are all resident in Italy.
They are represented before the Court by Ms C. Ceci, a lawyer practising in Turin.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
1.
The care order, contact restrictions, and domestic proceedings 1.
The first applicant married S. and they had two sons, D. and T. 2.
On 26 September 2005 S. and the first applicant’s mother went to the local health authority’s family advice and support centre (consultorio familiare), with a view to seeking assistance in dealing with the first applicant and the children.
3.
On the same day social services from the local health authority filed a report with the public prosecutor of the G. Youth Court which contained a record of the meeting with S. and the first applicant’s mother.
It is apparent from the report that the first applicant’s mother and S. were concerned about the first applicant’s recent behaviour.
They stated that the first applicant stayed out late at night and sometimes took the children with her without telling S. where they were going, and did not take adequate care of the children.
S. stated that the first applicant displayed an aggressive attitude towards him.
They voiced suspicions that the first applicant might be bulimic.
The first applicant’s mother expressed her concern over the fights that had been taking place between the first applicant and S. in front of the children.
She further asserted that the first applicant did not want to send the eldest child to nursery school.
S. stated that he had talked with the first applicant about the possibility of legally separating, but was concerned about the fact that the first applicant had apparently expressed a wish to gain custody of the children.
4.
On 3 October 2005 the public prosecutor filed an application with the G. Youth Court, seeking interim measures to protect the children pending a decision by the competent judicial authority.
5.
By a decision of 7 November 2005 the G. Youth Court placed the children in the care of the S. Municipality on a temporary and emergency basis.
The relevant parts of the decision read: “Having considered submissions to the effect that the mother’s condition has worsened (erratic behaviour, the appearance of conduct which may be associated with bulimia, increased aggressiveness in family relationships); that such behaviour on the mother’s part appears to be seriously prejudicial to the young children: the minors are reportedly exposed to displays of aggressiveness to which they react, they are reportedly not being taken care of, or are taken by the mother to places not known to the father.
D. does not attend nursery school; that the father does not appear to be able to cope with the critical situation; that, in order to protect the minors, it appears necessary to place them in the care of social services, with a view to ensuring the most appropriate temporary placement – preferably within their own family, but in the event that this is not practicable, outside their family – for such time as is necessary in order to carry out an assessment of the situation and of parental resources; ... [THE COURT] ORDERS: That D. and T. be placed in the care of the S. Municipality, which, in coordination with social services, shall: immediately arrange the most appropriate protective placement, preferably within the children’s family, but in the event that this is not practicable, outside their family; implement the most appropriate support package for the parents and the children; assess parental capabilities and identify existing problems, while providing advice to the parents on necessary therapeutic interventions or other support as required; ... 6.
From the material in the case file, it is apparent that the children were temporarily placed with the first applicant, albeit in her mother’s home.
7.
On an unspecified date the first applicant and S. decided to legally separate, and judicial proceedings were initiated to this effect before the S. District Court.
8.
A hearing before the G. Youth Court was held on 7 December 2005.
The first applicant expressed the wish that her children be placed with her, in her own home, and stated that she was prepared to be supervised by social services.
She complained that social services had not spoken to the children and, for this reason, questioned the reliability of the conclusion to the effect that they had not been appropriately taken care of.
The first applicant’s mother expressed the opinion that the first applicant was capable of being a mother and could stay with the children in the first applicant’s home with the assistance of social services.
She added that she was experiencing difficulties in managing the situation as it stood.
On the same date, the judge forwarded the hearing transcripts to social services, asking them to assess the most appropriate solutions for the care and placement of the children in the light of the parties’ statements.
9.
On an unspecified date social services identified the placement of the first applicant and the children in a supervised residential unit (comunità) as a temporary solution.
The unit would provide support and supervision with regard to the children’s care.
10.
On an unspecified date the first applicant started having psychotherapy sessions.
11.
On 16 December 2005 the first applicant and the children moved to the supervised residential unit.
12.
On 20 February 2006, in the context of the separation proceedings before the S. District Court, the first applicant and S. made an application for the children to be placed with S.’s mother.
13.
On 27 February 2006 the S. District Court issued a decision in relation to the parents’ application, acknowledging the decision by the G. Youth Court of 7 November 2005, and observing that social services had not yet completed the assessments as that court had requested.
Owing to the lack of such assessments, it concluded that it had to confirm the decision of the G. Youth Court.
The court further ordered social services to issue a report on the children’s situation and the possibility of placing them with their paternal grandmother.
It appointed an investigating judge and set a hearing date for 4 May 2006.
14.
On 6 April 2006 the first applicant left the supervised residential unit, where the children remained.
15.
On 5 May 2006 the investigating judge of the S. District Court dismissed the parents’ application for the children to be placed with their paternal grandmother until such time as the necessary assessments by social services had been carried out.
16.
At a hearing held on 22 June 2006 before the S. District Court, the first applicant reported that the children were experiencing problems in the supervised residential unit, as D. was suffering from alopecia and T. was experiencing difficulties in sleeping.
She further complained of shortcomings on the part of the supervised residential unit’s staff, and that the staff were not providing the children with adequate care.
The latter concerns were shared by S. 17.
On an unspecified date the children were placed with their paternal grandmother.
The parents were allowed supervised contact sessions, although from the material in the case file it is not clear what the contact schedule was and whether contact sessions actually took place.
18.
On 20 June 2006 the mental health unit of the S. local health authority issued a certificate attesting to the fact that, as advised by social services, the first applicant had been attending psychotherapy sessions at the unit until May 2006.
It was further certified that she was not receiving psychiatric care because no “psychopathological elements worthy of note” had been diagnosed.
19.
On 23 June 2006 the investigating judge of the S. District Court appointed a psychologist, Dr. L.A., to perform an independent expert assessment and submit a report within ninety days.
20.
On 23 January 2007 the paternal grandmother formally withdrew her agreement to having the children placed with her, although she stated her willingness to keep them in her home until another solution could be found.
21.
The expert report was delivered on 23 April 2007.
The expert found, inter alia, that the first applicant’s emotional sphere was characterised by egocentrism and narcissism, and that an overall immaturity in her emotions and relationships “partially impaired her parenting capacity”.
According to the expert, the children were experiencing psychological harm, which could expose them to the risk of developing psychopathological disorders.
She also found that D.’s relationship with his mother was “privileged and all-encompassing”, and that this led to regressive behavior, anxiety and insecurity on the child’s part.
D. was also found to be suffering from a separation anxiety disorder.
With regard to T., the expert found that his psychological suffering stemmed primarily from the first applicant’s “fusional relationship” with her older son D. The expert further considered that nobody in the children’s close family had adequate resources which would allow for an appropriate placement of the children within the family.
She therefore recommended that the children be placed with a foster family without delay, and that all contact with the parents be supervised.
She recommended that a contact schedule be put in place, but only after the children had settled into the new family environment, and that the children’s parents undergo relevant psychotherapy.
22.
On an unspecified date the S. District Court forwarded the report to the G. Youth Court.
23.
On 27 April 2007 the G. Youth Court issued an urgent decision, ordering the immediate suspension of all contact between the parents and the children (both direct and indirect).
The court considered that such restrictions were necessary, owing to the possibility that the parents could react negatively to the findings of the independent expert and that this could, in turn, impact negatively upon the children during contact sessions.
The court further requested that the paternal grandmother comply with the order and cooperate fully with social services.
The duration of the suspension of contact was not specified in the decision, although the first applicant states that it lasted for six months.
24.
On 5 May 2007 the S. District Court confirmed the order placing the children in the care of the S. Municipality, and ordered that the children be temporarily placed in the supervised residential unit where they had previously stayed.
It confirmed the order suspending all contact with their parents.
It affirmed that the latter measure, “while painful for all the parties involved” was “conducive to the children’s placement in the foster family”.
The duration of the suspension of contact was not specified in the decision.The court further considered that the children’s placement with a foster family, as suggested by the court-appointed expert, could no longer be postponed, and forwarded its order to the G. Youth Court.
25.
On 1 August 2007 the children were placed with a family in G. 26.
On 29 September 2008 the first applicant lodged an urgent application with the G. Youth Court, seeking revocation of the care order.
She sought custody of the children and requested a new independent expert assessment.
She complained that the decision suspending her parental rights had been unfair in that it had been based solely on the submissions made by her mother and S., and that no investigation had taken place with a view to ascertaining the situation of the children.
She further complained that, since the children’s placement in foster care, the contact sessions which were meant to take place weekly did not take place with such frequency, but rather at the discretion of social services.
27.
On 19 January 2009 the G. Youth Court appointed Dr. L.A. as an independent expert, the same psychologist who had completed the assessment for the S. District Court.
28.
The expert’s report was submitted on 23 January 2010.
With regard to the mother’s mental functioning, the expert confirmed that it was characterised by “some traits of a paranoid, antisocial, narcissistic and histrionic personality”, which she classified as a “personality disorder not otherwise specified”, which partially impaired the mother’s parenting capacity.
With regard to the children, she found that they had settled into the foster family and their overall condition was improving, as they were receiving a steady flow of attention and affection.
D., however, still experienced difficulties in emotional relationships and struggled with abandonment issues, and T. displayed insecurity and regressive behavior.
The expert recommended that the children remain in the care of the S. Municipality and placed with the foster family.
She further recommended that contact sessions with the parents take place every three weeks under the supervision of social services.
She also recommended that meetings be organised between the children’s parents and the foster family, and advised that the first applicant continue her psychotherapy.
29.
On 1 June 2010 the first applicant submitted an expert report by a psychologist whom she had instructed independently, contesting Dr. L.A.’s conclusions.
Amongst other things, the expert argued that Dr. L.A. had drawn a direct link between her assessment of the first applicant’s mental functioning and the impairment of the first applicant’s parenting capacity.
The expert also stated that the children had been repeatedly subjected to abrupt separations from emotional reference points, with serious consequences.
She expressed concerns regarding the fact that the children had not seen their parents for over five months, and found that the suspension of all contact exacerbated their feelings of anxiety and insecurity.
She advised that there should be frequent contact sessions between the children and their biological parents.
30.
By a decision of 15 June 2010 the G. Youth Court scheduled a contact session between the parents and the children for 18 June 2010.
The session was to take place in the court-appointed expert’s office and in her presence.
The court ordered that another contact session like this be scheduled in the month of July.
31.
A hearing was held on 17 September 2010 before the G. Youth Court.
Dr. L.A. confirmed the conclusions in her report of 23 January 2010 and submitted a report in reply to the assessment by the first applicant’s independently instructed expert.
She also submitted a report by a psychiatrist who had examined the children’s parents at her request, and reiterated her ability to host the supervised contact sessions between the parents and children in her office.
The first applicant made an application for revocation of the current care and placement order and temporary placement of the children in another foster family.
She further requested that steps be taken towards reunification, with a view to facilitating the children’s return to her.
S. also sought revocation of the care order, and stated that he had no objection to the children returning to the first applicant on the condition that his contact rights be guaranteed.
32.
On 30 April 2011 the first applicant lodged a complaint against Dr. L.A. with the Regional Board of Psychologists.
33.
By a decision of 7 December 2011 the G. Youth Court confirmed the children’s placement with the foster family with whom they were already living.
The court referred to the findings of the court-appointed expert in reaching the conclusion that such a measure was still necessary.
As to the parents’ contact rights, it decided that supervised contact sessions would tentatively take place every three weeks, last two hours, and take place in a neutral environment.
The practical arrangements regarding the sessions were entrusted to S. social services, acting in cooperation with G. social services.
Any decision concerning the sessions was subject to the prior agreement of the court-appointed expert, Dr. L.A.
The court also decided that, until social services finalised the necessary arrangements for the contact sessions, they would take place on a monthly basis according to the instructions issued by Dr. L.A.
Finally, the court gave its authorisation for D. to be baptised and to receive other sacraments of the Catholic faith.
34.
On 1 June 2012 the first applicant lodged an appeal (reclamo) against the decision of the G. Youth Court with the Court of Appeal.
She argued, amongst other things, that: (a) the decision to take the children into care had not been supported by sufficient reasons; (b) the duration of the order placing the children in care had been excessive, as it had been in place since 2005.
In this regard, she also contested the legal basis of the placement with the foster family (which was sometimes referred to by the courts as a “host family” (famiglia d’accoglienza), a vague term), as the relevant decisions had not been based on legal provisions pertaining to foster placement, but rather issued by means of provisions pertaining to emergency measures.
She argued that placement in care should be a temporary solution to assist parents encountering difficulties, and that if the situation were irreversible, or if the children involved were deemed to be in a state of abandonment, then adoption proceedings should be initiated.
She argued that placement in care for an indefinite period, as in the present case, was unlawful; (c) the proceedings had been characterised by excessive delays – for example, the first applicant’s urgent application for revocation, lodged in September 2008, was only decided by the G. Youth Court in December 2011 – and by the untimely submission of reports by the court-appointed expert, in the absence of applications for extensions; (d) the children had been placed in G., a city far away from her place of residence, and contact was suspended at the discretion of social services without court orders to this effect (for example, from December 2009 to June 2010).
She also sought an increase in the number of contact sessions she could have; (e) the children had not been heard by the Youth Court.
35.
On 31 October 2012 the Court of Appeal dismissed the first applicant’s appeal.
It considered that the first applicant had not overcome her personal problems and those concerning her relationship with the children.
Referring to Dr. L.A.’s report of 14 January 2010, the court noted that the first applicant displayed “some traits of a paranoid, antisocial and narcissistic personality”, which partially impaired her parenting capacity.
The court noted that the first applicant moved between S. and another city, where she conducted a professional activity which the court deemed to be incompatible with full-time parenting.
Based on the information available to it, the court was not persuaded that the first applicant had been complying with the requirement of undergoing regular psychotherapy.
The court noted that, based on a report by social services issued on 12 December 2012, the children had settled well into the foster family, were in good health and had at least in part overcome the difficulties reported by Dr. L.A.
The court further dismissed the first applicant’s application to increase the number of contact sessions she had with her sons on the same grounds, and remitted any further decision on the matter to the G. Youth Court, the judicial organ entrusted with the task of continuously monitoring the evolution of the situation.
36.
On an unspecified date the first applicant’s lawyer requested an expert opinion (pro veritate) from a team of psychologists.
The opinion was delivered on 12 September 2013 and forwarded to the G. Youth Court.
The recommendations contained in the report included, but were not limited to: (a) the immediate reinstatement of telephone contact between the first applicant and the children; (b) the introduction of a weekly contact session lasting from 10 a.m. to 7 p.m. in which the first applicant could spend the day with the children without supervision; (c) after a few months, allowing the children to stay at the first applicant’s home one day during the weekend (from 10 a.m. to 7 p.m.) and, after some time, the introduction of an overnight stay; (d) allowing for the progressively increased involvement of the first applicant in decisions concerning her children (those relating to education, health, sports, recreation, and so on); (e) planning contact sessions lasting seven to fourteen consecutive days, which would be spent with the first applicant at her home or on holiday; The psychologists also recommended an eventual transfer of the children to the mother, with contact rights granted to the foster family.
They further recommended that the entire process be closely monitored by social services, and that psychological support for all the involved parties, including the foster family, be ensured.
37.
In 2014 D.’s school sent a letter to the S. social services, expressing concerns for D.’s wellbeing, as he was experiencing panic attacks and hyperventilation, and was vomiting before tests.
It also reported that D. had run away from school and had thrown himself into oncoming traffic, notwithstanding a teacher’s efforts to stop him.
38.
On 5 August 2014 the first applicant lodged an application before the G. Youth Court, seeking reconsideration of the care order.
She reiterated many of the complaints contained in her application of September 2008.
She also complained, amongst other things, that in the nine years the children had been placed in the care of the S. Municipality, and in the seven years in which they had been placed with the foster family, the authorities had never put in place any sort of plan for her reunification with the children.
In addition, they had never changed the contact schedule, which had been in place for over seven years and had ‘crystallised’ into a schedule allowing two hours of supervised contact every three weeks.
The first applicant expressly argued that her rights under Article 8 of the Convention had been violated.
According to information provided by her lawyer, the court has yet to issue a decision regarding that application.
39.
At a hearing held on 26 February 2015 before the G. Youth Court, the first applicant’s lawyer lodged an application seeking that the children be heard by the court.
40.
On 2 April 2015 the G. Youth Court granted the application and set a hearing date for 5 June 2015.
The court decided that the children were to be heard in the absence of their parents and their parents’ lawyers.
41.
On 14 May 2015 the first applicant’s lawyer lodged an application with the G. Youth Court, requesting that the parties’ lawyers be allowed to observe the hearing from behind a one-way mirror, so that they could avoid being seen by the children, but nonetheless be present.
42.
On 29 May 2015 the G. Court adjourned the hearing to an unspecified date in the future, as the court building did not have a room with the necessary equipment (a one-way mirror and an audio system) to conduct the hearing in accordance with the first applicant’s application.
The court also adjourned the hearing where the parents would be heard (comparizione dei genitori) to an unspecified date.
43.
On 29 June 2015 the first applicant’s lawyer lodged an application with the G. Court, requesting that a new date for the hearing where the children would be heard be set without any further delay.
She also requested that a date be set for the parents’ hearing.
She highlighted that time was of the essence in cases involving children who were separated from their biological parents, and called not only for a speedy scheduling of the hearings, but also a speedy conclusion of the excessively lengthy childcare proceedings.
44.
On 21 September 2015 the G. Court set the date for the children’s hearing for 14 October 2015.
Both children were to be heard simultaneously.
It specified that the parents’ lawyers and the public prosecutor had the opportunity to submit a list of proposed topics to be discussed with the children.
45.
On 2 October 2015 the first applicant’s representative submitted a list of proposed topics for discussion, and made an application for the children to be heard separately, so as to ensure their freedom and spontaneity.
46.
On 13 October 2015 the G. Court dismissed the application to hear the children separately, on the grounds that a simultaneous hearing would “minimise stress” for the children.
47.
The hearing took place as scheduled on 14 October 2015.
The transcript is handwritten and it is difficult to decipher its content.
2.
The involvement of the Regional Independent Authority for the Rights of Children and Adolescents 48.
On an unspecified date the first applicant lodged a complaint with the National Independent Authority for Children and Adolescents (Autorità Garante per l’Infanzia e l’Adolescenza).
On 11 September 2014 the authority forwarded the complaint to the relevant Regional Independent Authority for the Rights of Children and Adolescents (Garante Regionale dei Diritti dell’Infanzia e dell’Adolescenza, hereafter “the Regional Independent Authority”), requesting that it conduct an investigation into the case and report back.
49.
On 16 January 2015 the children were heard by the Regional Independent Authority.
The transcript of the meeting was forwarded to the G. Youth Court for information.
50.
On 29 June 2015 the Regional Independent Authority issued a report on the case.
As a preliminary remark, the report highlighted the lack of cooperation from S. social services, which had refused to provide information and had not replied to letters requesting meetings in order to obtain the services’ viewpoint (ascolto delle parti), with a view to carrying out a thorough assessment of the case.
The representative of the Regional Independent Authority had apparently been accused by one of the social workers of ‘interfering’ with the case.
The report highlighted a number of concerns, which included but were not limited to: (a) the placement of the children in care, which should have been a temporary measure, but had evolved into a de facto permanent placement; (b) the biological parents being allowed only “sporadic” contact with the children, and being prohibited from having any contact with the children for long stretches of time; (c) the children being placed in a city 140 km away from the biological parents’ place of residence; (d) the proceedings being characterised by delays, and reports by the court-appointed expert being filed in an untimely manner; (e) the inconsistencies between the reports by social services and those submitted by the contact supervisors (educatori) regarding the mother’s behaviour during contact sessions.
Among the conclusions drawn in the report, the Regional Independent Authority expressed the opinion that a gradual rapprochement between the first applicant and her sons was in the children’s best interests.
The recommendations expressed in the report include those enumerated in the pro veritate opinion (see paragraph 36 above), which the Regional Independent Authority declared to endorse.
COMPLAINTS The first applicant, who purports to act on behalf of her children as well, complains of infringements of Article 8 of the Convention on several grounds, which can be summarised as follows: (a) the decision to take the children into care was not supported by sufficient reasons, and no investigation was conducted; (b) the placement of the children in care, which was meant to be a temporary measure on an emergency basis, has become permanent, in that they have been in care for over ten years; (c) the measures taken by the authorities were inconsistent with the aim of reuniting the mother and the children, and no steps towards reunification have been taken; (d) the domestic proceedings were flawed, excessively lengthy and were not conducted diligently; (e) the contact restrictions, which have not been lifted or varied in ten years, are not proportionate.
Contact is sometimes suspended entirely, and at other times is scheduled in an irregular manner, and at times its organisation is left to the discretion of social services and the court-appointed expert.