Information Note on the Court’s case-law 208

June 2017

Barnea and Caldararu v. Italy - 37931/15

Judgment 22.6.2017 [Section I]

Article 8

Article 8-1

Respect for family life

Child removed from parents and declared eligible for adoption on ground of precarious living conditions of family: violation

Facts – The applicants are a Roma family. The parents (the first two applicants) and their four children (including th e three other applicants) were living in a camp in precarious conditions.

In June 2009 the youngest daughter was placed in an institution, then declared eligible for adoption by a court of first instance in December 2010. The applicants were mainly critici sed for failing to provide the child with adequate material conditions and for having entrusted her to a third party.

In October 2012, however, the court of appeal decided that the child was to be gradually returned to her family over a six-month period. T he social services did not comply with those instructions, and in November 2014 the court extended the child’s placement in a foster family. In January 2015 the court of appeal set aside that decision but maintained the child’s placement in the foster fami ly with whom she had lived for six years.

Finally, in August 2016 the first-instance court ordered that the child be returned to her birth family. The child was returned in September 2016, an experience that she found very difficult.

Law – Article 8: Notwi thstanding the respondent State’s margin of appreciation, the Italian authorities had failed to make appropriate and sufficient efforts to secure the applicants’ right to live with their child between June 2009 and November 2016, given the conditions in wh ich they were separated and the non-execution of the court of appeal’s 2012 judgment providing for the child’s return to her family of origin, thus breaching the applicants’ right to respect for their family life.

Firstly, the grounds on which the first-instance court had refused to return the child to the applicants and declared her eligible for adoption did not constitute “very exceptional circumstances” capable of justifying the severing of family ties. Moreover, before placing the child and opening a procedure for adoption, the authorities ought to have taken practical measures to enable her to live with the applicants.

At no stage of the proceedings were allegations made of ill-treatment, sexual abuse or emotion al deficiencies, or of any worrying health problems or of psychological instability on the part of the parents. On the contrary, the ties between the parents and the child were particularly strong. The applicants had been capable of fulfilling their parent al role and had not had a negative influence on the child’s development. Moreover, the first expert report suggested that a process be started to reintegrate the child into her family.

Secondly, following the court of appeal’s judgment in 2012, no plan to rebuild the relationship between the applicants and the child had been implemented within the recommended six months. The first-instance court had then extended the placement in a foster family and reduced the number of meetings between the child and her f amily to four per year, basing this decision on the applicants’ conduct and physical living conditions, the child’s potential difficulties in reintegrating into her birth family and the strong ties that she had formed with the foster family.

The fact that a child could be placed in an environment more beneficial for his or her upbringing could not on its own justify a compulsory measure of removal from the care of the biological parents. In the present case, the applicants’ ability to provide their child wi th educational and emotional support had not been at issue and had been recognised on several occasions by the court of appeal.

Thirdly, although the first-instance court’s decision had subsequently been set aside in 2015, the court of appeal had nonethele ss confirmed the foster placement on the grounds that, given the passage of time – six years in this instance – very strong bonds had been forged with the foster family and it was no longer feasible to return the child to the applicants.

However, effective respect for family life required that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere effluxion of time. In the present case, the grounds given by the social services and subse quently by the judicial authorities in refusing the child’s return to the applicants did not constitute the “very exceptional” circumstances which could justify severing family ties.

The Court understood that, given the passage of time and a child’s integr ation in the foster family, the national courts could refuse his or her return. In the present case, however, the passage of time, a consequence of the social services’ inertia in beginning the process of rebuilding the family, and the grounds put forward by the first-instance court for extending the child’s temporary placement had been decisive factors in preventing the applicants’ reunion with the child, which ought to have occurred in 2012.

Conclusion : violation (unanimously).

Article 41: EUR 40,000 in respect of non-pecuniary damage.

(See Kutzner v. Germany , 46544/99, 26 February 2002, Information Note 39 ; Couillard Maugery v . France , 64796/01, 1 July 2004, Information Note 66 ; Clemeno and Others v. Italy , 19537/03, 21 October 2008, Information Note 112 ; Saviny v. Ukraine , 39948/06, 18 December 2008, Information Note 114 ; B. v. Romania (no. 2) , 1285/03, 19 February 2013, Information Note 160 ; R.M.S. v. Spain , 28775/12, 18 June 2013, Information Note 164 ; Zhou v. Italy , 33773/11, 21 January 2014, Information Note 170 ; and Soares de Melo v. Portugal , 72850/14, 16 February 2016, Information Note 193 )

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

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