The importance of time in child protection decisions; a commentary on Haddad v Spain

By Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

On 18 June 2019 the European Court of Human Rights found a violation of Article 8 of the Convention in the case of Haddad v Spain. The main reason was that the Spanish authorities did not discharge of their positive obligations to facilitate reunification between the applicant and his daughter (who had been placed in care). The applicant was the child’s father who at the time of placement was suspected of domestic violence against his children and their mother. About one year and four months had elapsed by the time the applicant was legally able to contact his children. During this time, his youngest child (one year and a half old at the time) had been living with foster parents and the authorities were envisaging her adoption.

In addition to finding a violation, the Court called upon the Spanish authorities to re-examine the situation in light of the judgment. Thus, arguably the Spanish authorities are to endeavor to secure the applicant’s reunification with his daughter.

I would like to take this opportunity to highlight the importance that passage of time may play for relationships between parents and children and question the feasibility of the Court ordering States to take concrete measures in these types of cases.

I will start with a brief overview of the facts of the case and the reasoning of the ECtHR. In the analysis of the judgment I will attempt to place the issues raised by the present case in the wider context of decisions about long term foster care and adoption, which at the moment raise heated debates within the Council of Europe and some national jurisdictions alike.

FACTS

The applicant, of Syrian origin, was married to a Spanish national. In 2012 they returned from Syria to Spain together with their three children (aged at the time 9, 6 and one year old). Upon their return, the applicant’s spouse filed a complaint for domestic violence against him, as a result of which the Spanish authorities suspended his parental responsibility and prohibited all contact with his wife and children. Thereafter, the wife requested the placement of the children in care on account that she was not capable of taking care of them. The placement decision was not communicated to the applicant, who was then the subject of a criminal investigation. Consequently, there was no contact between him and his children between June 2012 up until 2015 –when it appears that the applicants’ two older children returned to him.

In light of the criminal proceedings which were pending against the applicant at the time and given the position of the mother who appeared to no longer be capable of caring for them, on 20 September 2013 the domestic authorities proposed that the youngest child be placed in family-based foster care.

On 27 September 2013 the applicant was acquitted of the criminal charges against him, on account of insufficient and inconsistent evidence. Immediately thereafter he commenced the attempts to contact his children. The child protection authorities refused to authorize any contact between the applicant and his children, given the extended period of time where contact was absent. In respect of the youngest daughter they found that she had adjusted well with her foster parents. As to the two older sons, contact was denied in view of their frail psychological state and a lack of trust in the paternal figure. The applicant’s legal endeavours to have his children returned where unsuccessful until 26 February 2016 when the regional government ended the measures for the two sons and they returned to the applicant’s care. With respect to the youngest daughter, the authorities rejected the applicant’s request for ending the placement. The main grounds were that the child was well adjusted with the foster family. They found that it would be best for the child if she were adopted by the foster parents as ceasing the placement would result in grave dangers to her physical and mental health. At the same time, it was held against the applicant that he only intervened in the procedure in November 2013, after his acquittal for the criminal charges.

COURT’S REASONING

The applicant’s complaint before the ECtHR was that the Spanish authorities did not take any measure for reestablishment of contact between him and his daughter following his acquittal.

In line with its well established case law the Court proceeded to assess (i) whether the decision making process was fair, allowing the applicant to properly participate in the proceedings and (ii) whether the Spanish authorities appropriately discharged of their positive obligation to take all reasonable measures for reunification of the applicant with his daughter. The Court found no issues with the decision making process as the applicant was represented by a lawyer and he had the opportunity to challenge the domestic decision. The Court did however rule that the Spanish authorities had not adequately complied with their positive obligation to take all necessary steps in facilitating the father daughter reunification. For the Court it was particularly problematic that the authorities did not change their attitude following the applicant’s acquittal. The authorities did not conduct any personalized assessment of the situation in light of the new circumstances. Also, they did not appropriately assess the applicant’s parenting capabilities. Of special importance was the fact that the lack of contact between the applicant and his daughter was caused by the restraining order and it was precisely this lack of contact which served as a justification by the authorities for placing the daughter in pre-adoption proceedings.

I would also like to highlight that –somewhat unusually – the Court ordered Spain to reexamine in a short delay the case in the light of this judgment.

COMMENTS

In my view this is a fairly standard judgment in a child protection case. I think the Court rightly found a violation of Article 8, and that overall this case does not do more than reiterate the already established case law in this field.

However, this judgment comes at a time when the child protection systems of several member states are under pressure. The Parliamentary Assembly of the Council of Europe has issued a Resolution calling for a fair balance between the best interests of the child and the need to keep families together. Also, the case of Strand Lobben v Norway concerning the termination of parental rights and placement of a child for adoption is now pending before the Grand Chamber. Further, there are discussions at the national level in some Member States on whether adoption with the severance of family ties as opposed to long term fostering would be in the best interests for the child[1]. In broad terms the question is whether it would be in the best interest for the child to be adopted so as to create a new family link rather than be placed in foster care for an indeterminate period of time in the hope that the biological parents will be capable to resume their roles.

The facts of this case bring to the fore this dilemma, albeit in slightly nuanced terms. It should be recalled that the applicant was prohibited any form of contact with his daughter during the criminal proceedings against him. These proceedings lasted for one year and four months, time in which the daughter was placed with foster parents. The Court does not criticize the length of the criminal proceedings nor the fact that the applicant was prohibited contact in this period. Clearly, serious suspicions of abuse justify such measures. However, on the child protection side, could such a period, – rather long taking into account the age of the child-, be used as an argument for terminating parental rights in favour of the adoptive parents?

Further, the Court specifically indicated that the Spanish authorities are to reexamine the situation in the light of the present judgment. I wonder though how realistic such examination would be for the applicant and for the reunification prospects with his daughter. It is very rare for the Court to order such measures as ‘just satisfaction’. One similar case is Soares de Melo v Portugal, however in that case interim measures had been indicated to the Government pending the Strasbourg judgement, to the effect that the applicant should have had contact with her children during the proceedings. This has not happened in this case. Thus, at the time of the judgment the applicant had no contact with his daughter for more than 7 years, and she was one year and six month last time they saw each other. Moreover, one should consider that in the meantime the child and the foster parents have developed ‘family life’ within the meaning of Article 8 ECHR which equally deserves protection. Striking the fair balance between the new family life and the biological links of the child will be a difficult matter to say the least. And last but not least is the Court not stepping too far by ordering such measures? As the Court rightfully mentions, time is of essence. And yet, arguably a concrete measure in this case would result in uprooting the child from her new family situation, revoking an adoption (if that has happened in the meantime), or allowing for open adoptions (where a child has contact with the biological family). It would be interesting to follow up on whether Spain will (be able to) comply with this portion of the judgment.

[1] For a brief overview of the situation in the Netherlands, see S Florescu and M. Bruning (2016), Discharge of parental authority: considerations regarding the compatibility of the new provision of the Dutch Civil Code with the European Convention on Human Rights. In: Breedveld-de Voogd C.G., Castermans A.G., Knigge M.W., Linden T. van der, Oever H.A. ten (Eds.) Core Concepts in the Dutch Civil Code, Continuously in Motion. BW Krant Jaarboek no. 30 Deventer: Wolters Kluwer. 169-186.