April 04, 2022
In the case of D.M. and N. v. Italy, the ECtHR found that there had been a violation of article 8 of the Convention in respect of the applicants, a mother also acting on behalf of her daughter, who alleged that the adoption procedure initiated by the Italian authorities in relation to the child infringed their right to respect for family life.
In this post, I argue that the Court, after reiterating that such a radical measure as adoption should be applied in exceptional circumstances required for severing family ties, which did not exist in the present case, judiciously magnified the impact of its ruling by inviting the domestic authorities, under article 46, to re-examine the situation of the two applicants and consider the possibility of arranging for contacts between them.
The claim was brought by a Cuban national, D.M., who equally acted on behalf of the second applicant, her daughter N. The applicants were born in 1982 and 2012 respectively and live in Brescia. N. was born of the relationship between D.M. and A.P. that ended in 2014.
In February 2013 D.M. applied to the welfare services for assistance on the grounds that A.P. had abused her. The two applicants were placed in a reception centre in Brescia for approximately a year. In January 2014 the domestic courts authorized the two applicants to return home and ordered the welfare services to provide support for the parents and educational assistance for the child. However, A.P. started abusing D.M. again and, therefore, in August 2014 the public prosecutor’s office invited the Italian courts to assess the parents’ parental capability and to order the child to be taken into care. In October 2014 the two applicants were accommodated in a family reception centre.
In 2015, in their reports, the welfare services mainly underlined the mother’s problematic pedagogical methods and inappropriate behavior in relation to her personal life. They applied to the court for the child to be placed in a foster family.
In September 2015 the public prosecutor’s office requested the suspension of D.M’s parental authority over N., the opening of an adoption procedure and the girl’s placement in a foster family.
In December 2015, considering that the situation was irreversible, that D.M.’s lifestyle was not stable and that it was not necessary to order an expert assessment in relation to the mother’s parental capability and the child’s mental health as D.M had requested, by a decision which was immediately enforceable, the domestic courts declared N. available for adoption. They suspended both parents’ parental authority as well as their contact with their daughter and ordered her fostering out to a couple pending her adoption. On 30 December 2015 the child was removed from her mother.
D.M. appealed against that judgment reiterating her request for an expert assessment. The Court of Appeal dismissed the appeal pointing out that even if it had been possible that D.M. might have recovered her parental capacities in the future, it was nonetheless preferable, in the child’s immediate interests, to declare her available for adoption.
D.M. appealed on the points of law, notably arguing that her request for an expert assessment was not taken into consideration. The Court of Cassation dismissed her appeal.
The grounds on which national tribunals declare a child available for adoption are subjected to careful scrutiny by ECtHR (Sudre et al, 2022). Indeed, the Court underlines that, in complex cases of this type, there are various interests at stake – those of the biological parents, the children, the adoptive family and the public interest – that are difficult to reconcile, and emphasises that the best interests of the child must take precedence (Todorova v. Italy §77). The ECtHR considers that a decision to declare a child available for adoption should be justified by exceptional circumstances, should be issued only when the domestic authorities have examined all other less drastic solutions available and the impact of such decision on everyone involved (Sudre et al, 2022), sanctioning the Contracting State concerned if this is not the case (Zhou v. Italy).
Moreover, the ECtHR underlines that the ultimate aim of any care order must be to reunite parents with their children (Olsson v. Sweden §81, Gnahoré v. France § 59) and that lack of contacts between them for a long period of time may jeopardize the attainment of this aim (Gnahoré §60).
However, when the Strasbourg Court is convinced that the decision to deprive biological parents of parental responsibilities and authorize the adoption was based on relevant and sufficient reasons and was proportionate to the legitimate aim pursued, namely the best interests of the child, it considers that article 8 has not been infringed (Aune v. Norway, Ilya Lyapin v. Russia). The Court notes, in particular, the advantages adoption offers to children in comparison with their placement into care and underlines the necessity to ensure that children are raised in a secure environment by people to whom they feel close, where their vulnerabilities are taken into consideration (Sudre et al, 2022).
In the present case, the Court accepts that the Italian tribunals’ decisions amount to an ‘interference’ in the exercise of the applicants’ right to respect for their family life, are ‘in accordance with the law’ and pursue a legitimate aim, ‘the protection of health or morals’ and ‘the protection of the rights and freedoms’ of the child.
While conducting the ‘proportionality control’, the ECtHR notes that the domestic courts had held that D.M. lacked parental capacities due to her behavior and her unstable lifestyle. It further observes that the Court of Appeal had established that it was possible for the mother to regain her parental capacities with a great deal of time and effort, but it was nevertheless preferable, in the child’s interests, to declare her available for adoption. Additionally, it points out that the fact that children might benefit from being transferred into an environment more conducive to their upbringing can’t justify, per se, removing them from their biological parents.
Furthermore, the Court underlines that it had not been demonstrated that N. had been exposed to situations of violence or abuse; the domestic courts did not identify any kind of emotional and psychological imbalances on the part of the parents. Therefore, it doubts the adequacy of the facts on which the Italian authorities had relied in concluding that D.M. was unfitted to efficiently exercise her parental responsibilities.
The ECtHR notes that no proper assessment of the mother’s parental capability or psychological state had taken place; in addition to that, there was no attempt to preserve family ties between mother and daughter, while targeted welfare assistance, which could successfully deal with certain difficulties, had not been considered. Moreover, the Court stresses that the Government refers to N. as ‘victim of sexual abuse’, even though no criminal proceedings or any type of assessment had taken place in that respect.
After reiterating what it had already noted in the case of Sommerfeld v. Germany (§71), that it is for the national courts to determine the necessity to involve in the proceedings a psychological expert, the Court observes that the Italian tribunals decided to declare N. available for adoption, removing her permanently from her mother, despite the existence of other less radical solutions. It emphasises that, due to the lack of an assessment regarding mother’s parental capability, her relationship with her daughter and the latter’s psychological state, D.M was deprived of the possibility of challenging the conclusions and the accusations against her made by the welfare services. The Court further considers that, in this type of cases, before declaring a child available for adoption, it would be advisable to order such assessments.
The Court also pinpoints that the emphasis given by the Italian authorities on the sexual and private life of D.M. is not crucial for evaluating her parental capability.
The Court observes that the absolute necessity of preserving the bonds between the applicants as far as possible had not been duly taken into consideration – bearing in mind that D.M. had been in a vulnerable position, as she was a domestic violence victim and that she had requested assistance to protect N.
The ECtHR, thus, considers that the Italian authorities had not convincingly demonstrated that, despite the existence of less radical solutions, the impugned measure was the most appropriate solution in line with N’s best interests, while the national proceedings were not accompanied by safeguards proportionate to the seriousness of the interference and the interests at stake.
Additionally, the Court responds to the applicants’ request, under article 46, to indicate individual measures in order to erase the consequences of the violation of article 8 and to preserve family ties between them. More specifically, the Court invites the Italian authorities to re-examine, as soon as possible, the situation of D.M. and N. in the light of the present judgment and consider the possibility of arranging for contacts between them.
D.M. and N. v. Italy is undoubtedly in line with the well-established ECtHR case law sanctioning Contracting States that initiate adoption proceedings in relation to children at risk, without considering first less severe measures, which could have assisted biological parents facing difficulties in the upbringing of their children.
However, the present case is of a particular interest as the Court empowers its ruling by inviting Italy, under article 46, to take individual measures in order to address the infringement of article 8.
More specifically, the Court considers at the outset that, in the particular circumstances of the case, it is not its place as such to act on such request for individual measures. It reiterates that, subject to monitoring by the Committee of Ministers, the respondent State remains free in principle to choose the means by which it will discharge its obligations under article 46, provided that such means are compatible with the conclusions set out in its judgment. Nevertheless, in view of the specific circumstances of the present case, the fact that the adoption proceedings are still pending and the urgent need to put an end to the violation of the applicants’ right to respect for their family life, the Court asks the domestic authorities to re-examine, in a timely manner, the situation of the applicants in the light of the present judgment and consider the possibility of establishing some form of contact between them taking into consideration the child’s best interests, and to take any other measures that may be appropriate in these interests.
Moreover the Court considers that the most appropriate form of redress for a violation of article 8 in a case such as the present one, where the decision-making process by the domestic courts led to declaring N. available for adoption, would be to ensure that the applicants, as far as possible, are put in the position in which they would have been had this provision not been disregarded.
It was in case of Gluhaković v. Croatia that the ECtHR issued for the first time such directions, under article 46, in relation to the right to respect for family life. Indeed, in this case, the Court found that the national authorities had failed in their positive obligation to secure to the applicant, who was a divorced father, the efficient enjoyment of his right to contact with his daughter in violation of article 8. It noted in particular that the Croatian courts consistently ignored the applicant’s arguments as to his work schedule and finding a suitable place for his meetings with his daughter. Consequently, it considered that to discharge its obligation under article 46, Croatia shall secure effective contact between father and child at a time which is compatible with the applicant’s work schedule and on suitable premises.
Since then, the Court seems to eagerly respond to requests for individual measures regarding article 8 in cases related to visitation rights (Bondavalli v. Italy), adoption proceedings against biological parents’ wishes (Soares de Melo v. Portugal, Haddad v. Spain, Omorefe v. Spain), or revocation of adoption proceedings based on unproven suspicion of child abuse (Ageyevy v. Russia). Moreover, while underlining that applicants, who have suffered a Convention violation, should as far as possible be put in the position in which they would have been had this infringement not taken place, the ECtHR has noted in particular that the most appropriate form of redress is, in principle, the reopening of the domestic proceedings in case the national legislation of the respondent State provides for such a possibility (Ageyevy §244, Haddad §80, Omorefe §71). Furthermore, in order to suggest to the domestic authorities a specific individual measure, for example securing effective contact between parents and children, the Court has built upon domestic courts’ decisions that have ordered similar measures but have not been properly enforced (Gluhaković § 34-35, 89, Omorefe §70).
The present case appears to reflect this case law development regarding articles 8 and 46. It should be pointed out that this development took a more concrete form in the more recent cases of Haddad and Omorefe, both against Spain. In the present case, the Court follows the same principles and seems to be willing to systematize its approach. Indeed, it indicates individual measures, this time, to Italy, a country that has been sanctioned for several breaches of article 8 regarding parents-children relationships, including in relation to adoption procedures (for example Todorova, Zhou, Akinnibosun v. Italy, A.I. v. Italy), over the last few years.
The main characteristic of this development is that, without disrespecting the principle of subsidiary and disregarding the limits of its mission, the Court seeks to ensure the effective implementation of the right to respect for family life by suggesting suitable individual measures in parental rights cases. Therefore, the impact of its decisions is intensified, providing parents with even more tangible solutions when their rights have been infringed.
Indicating individual measures in cases relating to parental rights, especially in those involving adoption proceedings, is not an easy task for the Court to perform, because family relationships can be very complex and the rights of other individuals, who are not involved in the proceeding before it, such as adoptive or foster parents, might be at stake. Nonetheless, the Court seems to be aware of the demanding nature of this task, as, while it suggests more precise measures to domestic authorities in specific contexts, it confirms at the same time their freedom of choice.
The fact that the ECtHR has started pointing out individual measures in such cases is of great importance for the applicants-parents, who very often do not value a sum of money in respect of any kind of damage awarded by the Court as much as they appreciate the reemergence of an opportunity to reclaim their rights in respect of their children.