Dr. Gamze Erdem Türkelli is a Research Foundation (FWO) Flanders Post-Doctoral Fellow at the Law and Development Research Group, University of Antwerp*
On 1 April 2021, the First Section of the European Court of Human Rights (ECtHR) rendered its judgment in A.I. v. Italy (Application no. 70896/17). The judgment sheds light on the States Parties’ obligations under the European Convention on Human Rights (ECHR) in relation to children’s rights and the rights of parents in situations of vulnerability and marginalization (of the parent and the child) as well as of cultural diversity where the family in question belongs to a minority culture in the State Party.
The case was brought before the Court by A.I., a Nigerian citizen born in 1981, residing in Rome, who had been a victim of human trafficking and who has two children. The case was brought before the ECtHR by the applicant alleging a violation of Article 8 of the Convention on respect of personal and family life. The application was triggered by the applicant’s inability to exercise visitation rights due to the prohibition of contact between the applicant and her children. A domestic court in Italy had decided the applicants’ children were suitable for adoption, even though the procedure establishing suitability for adoption had been pending for more than three years.
The applicant (A.I.) was a victim of human trafficking who had been brought to Italy at an unspecified date and was mother to two children (J. and M.) that were born in January 2012 and May 2014, respectively. She and her older child J. had been residing in a placement centre for refugees from April 2014 onwards. In May 2014, she gave birth to M. Approximately one month after birth, the younger child M. was hospitalized in Rome due to a chickenpox infection. After an examination, she was found to have an HIV infection. The hospital records indicated that the applicant A.I. had refused to allow for treatment of the child. Within two weeks, the public prosecutor had demanded a children’s tribunal to relinquish A.I.’s parental rights over child M. and the first instance court had granted this request, transferring the guardianship of M. and had given a placement order in a children’s home upon her release from the hospital. The court also asked the State to identify whether the applicant’s other child (J.) was in a situation of danger, which resulted in another request by the public prosecutor for protection measures for J. The first instance court noted that the applicant had refused for her older daughter J. to take diagnostic tests, that both the applicant and J. lived in a reception centre that was not suited to J.’s needs and that the applicant also refused J.’s transfer to a placement centre adapted to children.
In November 2014, the Court suspended the applicant’s parental responsibility over her older daughter J. and named the mayor of Rome as temporary legal guardian of the minor, in order to place J. in an adapted placement centre. The Court also ordered health screenings for J. and ordered an assistance centre for child maltreatment to do an urgent evaluation of the personality and parental capacities of the applicant to determine the suitability to care for the children as well as to evaluate the psychophysical situation of J. Upon the Court’s decision, the applicant and J. were also transferred to another centre. The legal guardian informed the court that the applicant had been leaving J. in the care of other non-authorised people to leave the placement centre and did not care for the health of the child (due to not having sought the results of the health screening tests). In the meanwhile, the observation of the legal guardian and the public prosecutor continued, eventually leading to the placement of both children in the same placement centre with their mother (26 June 2015). The placement centre reported that the applicant was caring well for her children but had difficulties in establishing relationships with the placement centre personnel.
In November 2015, the applicant’s attorney requested that the applicant and her children be granted an autonomy track, whereby she would be allowed to live in a rented apartment, or one made available to her with her children, seeking the revocation of the parental authority suspension order. The attorney alleged that M.’s father had been working in Malta under an international protection residence permit, had re-established relations with the applicant, wanted to recognize M. and would be assisting with the expenses of the applicant and her two children. The Court rejected this request. In the procedure that ensured, the Court sought reports from the hospital and the legal guardian, putting into question the parental capabilities of the mother.
On 14 May 2016, the public prosecutor asked the court to verify whether the children were abandoned, as a precondition to putting the children up for adoption. During this process, the children were put in a separate placement centre with a weekly visitation possibility for the mother. Using an expert opinion, the Court declared the children abandoned and thus, ‘adoptable’, noting that it was ‘not possible to provide the applicant supplementary assistance’ and also prohibited all contact between the children and the mother. By the time the Court of Appeals of Rome took up the issue in November 2017 and asked for a new expert opinion on the applicant’s physical and mental health and parental capabilities, the two children of the applicant had been placed with two different families in anticipation of adoption. The Appeals Court confirmed the first instance court’s judgment on 2 October 2018, despite the opinion of an expert underscoring the cultural specificities in the case, the impact of negative stereotypes in the society with respect to women of Nigerian origin as well as the trauma experienced by the applicant, and recommending the reestablishment of relations between the applicant and her children while the children continued to stabilize their relationship with foster families (§37). The Appeals Court also rejected the applicant’s demands to keep her children in temporary foster placement, confirmed the prohibition of the applicant’s contacts with her children as a matter of suitability for adoption, which would require cutting off ties with children’s original family.
The matter escalated to the Court of Cassation, which overturned the decision of the Appeals Court and returned the case to another chamber of the Appeals Court given that it was only at the point of adoption (and not pre-adoption placement) that the links between the biological parent and the child would be interrupted. The application to the ECtHR was made while the case was pending before the other chamber of the Court of Appeals, at which point the applicant’s family life with her children had been interrupted for more than 3 years.
The ECtHR unanimously found a violation of Article 8 ECHR based on the merits of the case.
The Court recalled its previous jurisprudence underscoring that a link between a parent and a child is a fundamental component of the right to family life guaranteed under Article 8 ECHR. The Court noted, based on its previous jurisprudence in inter alia K. et T. v. Finland [GC], no 25702/94, § 151, and Barnea and Caldararu v. Italy, no 37931/15, § 63, that there were three conditions to be fulfilled when the State interfered with this right: legality, legitimate purpose and “necessity in a democratic society”. The Court considered the first two conditions to have been met as the proceedings had taken place for legitimate reasons foreseen in the law, particularly in relation to the protection of health and morals and rights of the applicant’s two children. This was not contested by the Parties. The contention in the case arose from the third condition of necessity of the interference.
On the point of necessity, the Court reminded that the State Party interfering with the unity of the family in a temporary way should have ‘one ultimate goal: unify once more the biological parent and the child’. (§ 86) This ultimate goal means that the State Party’s competent authorities have a ‘positive obligation to take measures to facilitate the reunification of the family as soon as this is possible in reality’. (§86) This obligation starts from the moment the temporary separation begins and throughout with real commitment, in balance with their duty to consider the best interests of the child. The Court again reminded that in case of conflict between the interests of the children and their parents, Article 8 ECHR imposes a duty on competent authorities within States Parties to strike the ‘right balance’ within which they ‘accord a particular importance to the best interests of the child’, which may, in return, override the parents’ interests. (§ 87) Yet, according to the Court, the best interests of the child would only drive competent authorities to sever the link between a parent and a child only in “truly exceptional circumstances” as the Court had previously noted in Strand Lobben and Others v. Norway [GC], no 37283/13, § 206-207 (§ 87).
While recognizing that State Party authorities have a wide margin of appreciation in deciding on the appropriate measures to protect the health and morals of children (§ 88), the Court underscored the duty to ‘exercise “a more rigorous control” on additional restrictions’ such as restrictions to visitation rights. (§ 89) The Court found a violation of Article 8 ECHR because it considered that the procedure resulting in severing the family links between the applicant and her children had not satisfied the proportional guarantees to family life despite the severity of the eventual interference and the importance of the interests involved. (§ 105)
The Court’s judgment in A.I. v. Italy is significant because it addresses a number of important links between the right to family life, children’s best interests and parental duties and rights when a parent may find themselves in a disadvantaged, marginalized or victimized situation (or a combination thereof, as was the case of A.I.). In terms of themes, the judgment underscores the nature of obligations to respect family life and family unity, obligations towards parents in vulnerable, marginalized or victimized situations, accommodation of cultural specificities, and takes a particularly nuanced approach to the balancing of children’s best interests with that of the parent(s).
Nature of Obligations to Respect Family Life and Family Unity
As a matter of general observation and in keeping with its previous jurisprudence in the area of family life, the Court underscored the positive obligations of national authorities in respecting family life, including fully substantiating any interference in family life. The Court noted in this case that the first instance court had taken a drastic measure (rupture of parent-child relations) without duly motivating its decision and without ensuring that the national authorities had undertaken their positive obligations with a view to ensuring the unification of the family and of sufficiently balancing the different interests in the case. (§ 90-91) The Court found that national authorities had not fully acknowledged the deep connection between the applicant and her children as well as the harms that denying them contact would cause. (§ 95-96) These harms were exacerbated by the fact that a suitability for adoption decision had been pending for over three years, during which time the contacts between the applicant and her children had been cut off. (§ 95) Reiterating that interrupting or severing of family ties is an exceptional measure to be taken in only the direst of circumstances to protect a child’s best interests, the Court considered the measure taken by Italian authorities to be in violation of Italy’s obligations as there was no violence or abuse committed by the applicant against her children (a recognized basis for separation of children from their parents under Article 9.1 of the Convention on the Rights of the Child) and because the expert opinion on re-establishing the parent-child link while the procedures were ongoing was not taken into account. (§ 101)
The Court’s judgment shows a clear children’s rights perspective, echoing throughout the principles enshrined in Article 9 CRC around the separation of children from their parents as being conditioned on laws and procedures and subject to judicial review and guarantees with respect to the maintenance of ‘personal relations and direct contact’ in so far as this is not ‘contrary to the child’s best interests’ (Article 9.3 CRC). The Committee on the Rights of the Child’s (CRC Committee) General Comment 14 on the Best Interests of the Child considers separation as an exceptional last resort and reads in the CRC a state obligation to provide adequate and effective support to the family to care for the child prior to a separation decision and also ascertaining that no alternatives can be found to ensure the child’s best interests. (paras 61 and 64, respectively)
Obligations towards Parents in Vulnerable, Marginalized or Victimized Situations
The Court noted that the State Party authorities had an obligation to take into account the marginalized situation of the applicant more fully during the process as a victim of human trafficking, which had created particular vulnerabilities and needs. (§ 103) In fact, the applicant had been experiencing an intersectional marginalized situation: As a victim of human trafficking and sexual abuse, as a migrant, as a single mother in a culturally different setting.
The lack of accommodation for the applicant’s particularly vulnerable situation was apparent in throughout the domestic procedures. A first psychophysical evaluation of the applicant was conducted during the initial case and the expert noted a number of personality issues including dominant paranoid tendencies, accompanied by narcissistic traits, as well as a generalized lack of logical and abstraction capabilities. The conclusion was that the applicant could not distinguish her own needs from those of her children and ‘seemed excessively superficial regarding the evaluation of the logistical aspects concerning her children’. (§28) The Court of Appeals had requested another evaluation of parental capacities as the applicant herself had been a victim of human trafficking and continued to psychologically suffer from her trauma (§35). An expert view was requested ‘with the help of a cultural mediator and if necessary with a translator of English language’ on the applicant’s physical and psychological status and capacities as a parent. (§33) The expert report submitted to the Court of Appeals had in fact underscored the particularly vulnerable and marginalized situation of the applicant as a single mother in a foreign country where the education and healthcare systems were fundamentally different from her own. The applicant had suffered from sexual violence for many years and was suffering from post-traumatic stress. Nonetheless, the applicant had always shown a very strong attachment to her role as a mother. Until the matter escalated to the Court of Cassation, the applicant’s particularly marginalized situation that resulting in specific vulnerabilities was not addressed.
The ECtHR, in its judgment, recalled that States Parties’ authorities had positive obligations to provide increased protection to persons in a vulnerable situation such as the applicant (recalling S.M. v. Croatia [GC] no. 60561/14). Thus, the ECtHR implied that providing material assistance and social services, while required, was not sufficient to discharge of these obligations. States Parties also have an obligation to take into account the person’s particular situation when making assessments about parental capacities and taking decisions on the applicant’s contact with her children. (§102)
Accommodation for Cultural Specificities
The ECtHR, like the Court of Cassation, drew attention to the near complete lack of consideration to cultural specificities in the case. For instance, during the initial proceedings at the first instance court, the legal guardian for the children had indicated that the applicant was hard to have regular contact with and ‘limited herself to feeding and playing with the children without respecting school hours’. (§ 23) On the other hand, the expert report submitted to the Court of Appeals noted that the first evaluation had not been attentive to implicit cultural specificities because the mother-child relationship in African culture was more pronouncedly based on physical contact. In fact, the report noted that ‘women migrants originally from sub-Saharan Africa’, like the applicant, ‘were often accused of not knowing how to play with [their children]’ and to limit their interactions to primary needs. (§ 34) Nonetheless, despite the expert report, neither the first instance tribunal nor the Court of Appeals had shown any accommodation for cultural specificities in play such as ‘the applicant’s Nigerian origin or the different models of attachment between parents and children in African culture’. (§ 104) Furthermore, although the ECtHR did not explicitly acknowledge the children’s right to be raised in their own culture, it nonetheless drew attention to the fact that the severing of a parent-child would ‘detach the child from their roots’. (§ 98)
Children’s Best Interests and the Balancing Exercise
The ECtHR, unlike the respondent State Party, did not treat the case as one where the interests of the applicant (mother) and the interests of the applicant’s children were in conflict and had to be balanced. In doing so, the Court took a nuanced approach that allowed for the convergence of the interests of the applicant and her children as a family unit. Nonetheless, the Court’s appraisal of this convergence was based on the argument that assisting in the maintenance of the family unit, including through re-establishing contacts between the applicant and her children was in the children’s best interests. On that specific point, the ECtHR reaffirmed, in line with its previous jurisprudence and referring to the CRC Committee’s General Comment 14 that the best interests of the child should be the primary consideration in the decision-making process. (§ 94)
The ECtHR agreed with the Court of Cassation that the national authorities had not sought to find a solution that would allow for the interests of the applicant and of the children to be balanced in a way that allowed for the parent-child link to be preserved, even after an expert had provided an opinion on the matter. (ibid) In addition, the Court of Cassation had referred to the report of the expert noting that conserving the links between the biological parent (the applicant) and the children was in the interests of the children for constructing their identity. (§41) The Court of Cassation had also taken issue with the fact that the Court of Appeals had not considered alternatives to full adoption that would allow for the continuation of a link with the mother and in conformity with ECtHR jurisprudence. (§ 41) Despite the State Party’s contention, the Court was not satisfied that the resulting situation was in the best interests of the children in the case. (§ 98-101) For instance, in addition to being separated from their mother, the children had been placed in separate homes, which effectively also ruptured sibling relations between the children, which was considered to be in contravention of their best interests. (§ 101)
A.I. v. Italy further cements the ECtHR’s previous jurisprudence on Article 8 in relation to the preservation of links between parents and children as an essential component of family life. It squarely designates separation as an exceptional measure of last resort and prioritizes alternative solutions. States Parties have an obligation to take the parents’ particular situation into account in making decisions about family life. The judgment thus makes an overture with respect to the recognition of positive obligations in providing parents assistance in discharging their care responsibilities, particularly when parents are found to be in marginalized or vulnerable situations. Finally, the Court recognizes the validity of parent-child relationships and family settings that do not follow what is considered the norm in a State Party, drawing attention to cultural specificities.
Although the Court did not directly address this point, the case also involves discrimination aspects as it reasonably raises questions around whether prejudicial attitudes towards racial and cultural differences played into the outcomes of the process leading to the separation of the applicant from her children. The expert providing an assessment to the Court of Appeals had in fact explicitly referenced the prejudicial attitudes within the society, including in social services settings, as well as implicitly pointing to the question of discrimination. This question is an important one, given the shameful history of separating racial and ethnic minority children from their parents under the pretence of children’s best interests especially in settler colonial states. The Court’s refined interpretation of best interests of the child principle in a manner that underscores the importance of family unity (including contact with their parents and siblings) not only as a matter of parental interests but also of children’s best interests, thankfully disqualifies best interests of the child arguments from being utilised to justify potentially discriminatory practices.
* Dr. Gamze Erdem Türkelli is the author of Children’s Rights and Business: Governing Obligations and Responsibility (CUP, 2020) and co-author of Children’s Rights: A Commentary on the Convention on the Rights of the Child and its Protocols (Edward Elgar, 2019).