Information Note on the Court’s case-law 230

June 2019

Haddad v. Spain - 16572/17

Judgment 18.6.2019 [Section III]

Article 8

Positive obligations

Article 8-1

Respect for family life

Pre-adoption foster placement of child despite father’s acquittal for domestic violence and his regained custody of the child’s elder brothers: violation

Facts – In February 2012, following a criminal complaint filed by his wife for domestic violence, a judge issued a restraining order against the applicant, also prohibiting him from approaching his children.

In June 2012, at the request of their mother, who stated that she could no longer look after them, the couple’s three children (two sons aged nine and six, and a daughter aged one and a half) were declared legally abandoned. They were placed under administrative guardianship in a children’s home. The applicant was not informed of the placement.

In June 2013 an orientation report noted the mental instability of the applicant’s wife, but also referred to ill-treatment of the children by their father. On 24 September 2013 the daughter was placed in the care of a foster family with a view to adoption.

On 27 September 2013 the applicant was acquitted on the above-mentioned charges. The prohibition of his contacts with his children was then lifted and he soon regained custody of his two sons.

In November 2013 the child protection department met the applicant for the first time. However, he was not allowed to re-establish contact with his daughter. The administrative authorities continued to insist on the need for pre-adoption foster care, invoking serious physical and emotional ill-treatment that he had allegedly inflicted on his children, the emotional instability and limited intelligence of the mother, the applicant’s lack of contact with his children since June 2012, and the absence of ties between the applicant and his daughter.

In February and December 2014, reports referred to the good integration of the applicant’s daughter in her foster family. In 2015 and again in 2016 on appeal, the courts endorsed the pre-adoption placement.

Law – Article 8: The Court did not find convincing the reasons that the authorities and domestic courts had considered sufficient to justify the minor’s placement in pre-adoption care:

– At no time in the administrative proceedings had any consideration been given to (i) the young age of Mr Haddad’s daughter at the time her parents had separated, (ii) the pre-existing relationship between the child and her parents, (iii) the passage of time since the separation, or (iv) the ensuing consequences for all three children and for the child’s relationship with her brothers.

– The account of physical ill-treatment had not been proven and had only been mentioned in the report of June 2013, which seemed to refer to the content of the complaint for domestic violence (charges on which the applicant had, in the meantime, been acquitted).

– The fact that the applicant’s wife was mentally unstable did not prove any negative influence on the father’s part, but rather the contrary (at least after his acquittal), as shown by his recovery of the custody of his two sons, while he was still determined to obtain custody of his minor daughter also.

– The courts had not observed any relational failings (a point they had failed to examine in the applicant’s case), or any concerns about the children’s health, or any material deprivations or unsatisfactory living conditions attributable to the applicant. Nor had his educational and emotional capacities been formally called into question.

The Court further noted some series failings on the part of the authorities. The administrative authorities should have considered other less radical measures than pre-adoption foster care and, in any event, should have heeded the father’s requests once the criminal proceedings against him had been terminated. The proceedings should have been surrounded by appropriate safeguards to ensure that the applicant’s rights were protected and his interests taken into account.

It was, admittedly, understandable that the three children should have been initially placed under administrative guardianship, as their own mother had so requested. But that measure should have been accompanied by the most appropriate measures, as soon as possible, for the purpose of assessing the children’s situation in depth, if need be vis-à-vis the father and mother separately.

In view of the court-ordered suspension of contact between the applicant and his children at the time, the situation was particularly serious, bearing in mind the age of his daughter, who had been just one and a half when she was placed under protection. The passage of time had had the effect of rendering permanent a situation which was supposed to have been temporary.

The child protection services initially relied on the reports drawn up over the period when the applicant could not show his fitness to be a father – since he was deprived of parental authority and criminal proceedings were pending against him. This attitude of the authorities did not change following the applicant’s final acquittal: the authorities had never assessed, on the basis of tangible evidence, the evolution in the circumstances.

As to the courts, they had subsequently shown a degree of inaction (even though the applicant had been able to submit his arguments to them): they merely took account of the approval by the child protection department and the foster family for the pre-adoption placement, then confirmed the decisions taken by the authorities on the basis of the arguments used by the latter and systematically reproduced in the various sets of proceedings.

In the Court’s view, the competent authorities had themselves been responsible for the breakdown in contact between the applicant and his daughter (at least since the acquittal) and they had failed in their positive obligation to take measures to re-establish that contact. The Court noted in this connection:

– that consideration of the vulnerability of the applicant’s wife at the time of their daughter’s placement in institutional care could have played a key role in understanding the situation of mother and child;

– that, above all, the applicant’s final acquittal and the lifting of any measure prohibiting him from having contact with his children did not seem to have been given attention by the court; whereas that prohibition precisely explained the prolonged lack of contact which had been used as an argument against the applicant to deny the re-establishment of contact and to confirm the pre-adoption placement;

– that, whereas the 2014 report had referred to a “fear” and to a “lack of trust of the father figure” on the part of the children, the applicant had rapidly regained custody of his other two children (who, for their part, had not been the subject of a pre-adoption measure).

Thus the passage of time, being the result of inaction on the part of the authorities and of the domestic courts, which had not found unreasonable the reasons given by the authorities, had decisively contributed to the lack of any possibility of family reunion between the applicant and his daughter.

Notwithstanding the respondent State’s margin of appreciation in such matters, the authorities had not made appropriate or sufficient efforts to ensure respect for the applicant’s right to live with his daughter, together with her brothers.

Conclusion : violation (unanimously).

Article 41: Noting that domestic law permitted, if necessary, subject to any rights acquired by third parties acting in good faith, the review of final decisions following a judgment of the European Court of Human Rights, the Court asked the authorities to re-examine the situation promptly – especially as to the possibility of contact being established between the applicant and his daughter – so that the appropriate measures could be taken in the child’s best interests.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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