Lexploria

Information Note on the Court’s case-law 53

May 2003

Covezzi and Morselli v. Italy - 52763/99

Judgment 9.5.2003 [Section I]

Article 8

Article 8-1

Respect for family life

Taking of children into care on an urgent basis and prolonged suspension of contacts with their parents: no violation

Failure to involve parents in proceedings concerning their rights with regard to their children: violation

Facts : The applican ts are married and act on their own behalf and on behalf of their four infant children. One of the children’s cousins informed the state prosecutor that she, her brother and her cousins had been sexually assaulted by her parents and other adults, including other members of the female applicant’s family. In November 1998, the children’s court, without hearing the applicants, held that the applicants had failed to carry out their parental duties by failing to notice that their children had been subject to rep eated sexual abuse and by continuing to entrust them to their close relatives. Consequently, the court ordered that the children be provisionally removed from their parents as an emergency measure and designated a health organisation as temporary custodian of the children and ordered it to carry out a psychological investigation. The court decided that relations between the applicants and their children would be suspended until the parents were reinstated as their children’s guardians. The children were pla ced in four different homes. The Court of Appeal dismissed the parents’ objection on the ground that, having been adopted provisionally and as an emergency measure, the decision of the children’s court was not amenable to appeal. The applicants then applie d to the children’s court for annulment of its decision of November 1998. Early in 1999, interviews between the parents and the social services took place in the presence of at least one of the psychologists attending to the children; the applicants then c eased to take part in the meetings. The children’s court heard the applicants for the first time in March 1999, in what they regarded as unfavourable circumstances. Their requests that their children be placed in the care of a different local authority and placed in the same home, and that they should be allowed to meet their children, were unsuccessful. The court ordered a report on the applicants’ personality, their capacity to exercise parental control and their relations with their children. In the mean time, one of the children stated that he had been sexually abused by the male applicant, with the complicity of the female applicant; investigations were therefore carried out into the applicants. In October 1999, the court granted the state prosecutor’s a pplication for an extension of the time limit for submitting the preliminary reports until April 2000. In March 2000, a psychological report confirmed that the applicants’ children had indeed been the victims of sexual abuse. In March 2001, the applicants were sent for trial. The were sentenced at first instance, in September 2002, to twelve years’ imprisonment and were deprived of parental authority. Previously, in the context of the proceedings relating to the removal of their children, the applicants had requested the court to adopt a final decision concerning their children’s situation. The children’s court rejected their request, stating that the matter was inevitably linked to the outcome of the criminal investigations. The applicants’ appeal against t he decision rejecting their request was declared inadmissible on the ground that the decision of the children’s court was still an provisional and emergency, and therefore temporary, measure, which was not amenable to appeal. In July 2000, the children’s c ourt deprived the applicants of parental authority and upheld the separate placement order in respect of the children. The applicants’ appeal was dismissed.

Law : Article 8: the interferences in question were in accordance with the law and pursued the legit imate aims of “protect[ing] … health or morals” and “protect[ing] … the rights and freedoms of others”. It remains to establish whether these interferences were necessary in a democratic society.

(a) The emergency removal of the children: the sexual abuse which they were presumed to have suffered at the hands of persons forming part of the female applicant’s family had taken place in conditions of the utmost gravity and although the applicants’ attitude did not then indicate any direct involvement in the i nstances of violence, it revealed a failure to supervise their children. Furthermore, the authorities carefully evaluated the credibility of the statements concerning the abuse and took into account the particularly complex criminal context in which the ab use took place. In those circumstances, the use of an emergency procedure to remove the children was based on relevant and sufficient grounds and was necessary for the protection of the children’s health and rights.

Conclusion : no violation (unanimously).

(b) The failure to hear the parents before taking the decision to remover their children: the authorities did not act in a disproportionate manner, since they considered that they must protect the children from any pressure that might be brought to bear in the domestic environment. There were close links between the two applicants and those accused of having sexually assaulted the applicants’ children; the facts were serious and other children had already stated that they had been abused by a number of adul ts. There was, moreover, a general atmosphere of intimidation towards the children involved and a danger of intimidation on the part of those accused.

Conclusion : no violation (5 votes to 2).

(c) The allegedly brutal nature of the removal of the children: the parties gave the Court different versions of the facts and the applicants adduced no evidence on which their version might be accepted.

Conclusion : no violation (unanimously).

(d) The prolonged break in relations between the applicants and their children: the reason for this was the applicants’ genuine inability to protect their children and the need to shelter the children by placing them in a protected environment. The prompt reinstatement of these relations was dependent, in particular, with the outcome of the investigations carried out in connection with the parties concerned in order to determine the children’s psychological state and that of the family relations. Commencing on the day after the children were removed, meetings were held between the social services and the applicants in the presence of psychologists and numerous reports on the children’s mental and psychological state were prepared. However, the case-file reve als a substantial lack of cooperation and confidence on the part of the applicants towards the competent authorities; moreover, the applicants ceased to take part in these meetings. In addition, the authorities’ task was extremely complex and the children consistently refused to return to their parents and showed fear towards them. All in all, the authorities took measures in order to strike a fair balance between the children’s interests and the parents’ rights under Article 8.

Conclusion : no violation (un animously).

(e) The fact that the children where placed in separate accommodation: the explanations provided by the national authorities are reasonable and sufficient. The authorities took account of the children’s special requirements, of the state of re lations between the children themselves and of their psychological state as revealed by the numerous reports. The Court must always attach particular importance to the interest of each child. In those circumstances, placing the children in separate accommo dation was proportionate to the legitimate aim pursued.

Conclusion : no violation (unanimously).

(f) During the proceedings concerning their parental rights, the applicants had the opportunity to express their doubts about the competence and good faith of the social services and the experts appointed by the health organisation designated as guardian of the children and the courts delivered decisions in regard to those doubts. None the less, the period of four months during which the applicants were unable t o exercise the slightest influence on the outcome of the proceedings reveals an unwarranted delay of at least two months on the part of the national authorities. Also excessive is the length of the period between the children’s removal, in November 1998, a nd the final decision on the applicants’ parental authority, dated July 2000. During those twenty months, moreover, the applicants had no remedy against the court’s provisional decision. Although the applicants submitted seven appeals against the decision to remove the children as a matter of emergency with a view to obtaining a final decision in respect of their parental rights, the court dismissed all of these applicants, relying on the provisional nature of the contested decision and the need to await th e progress of the criminal investigations which were being carried out. Accordingly, the applicants were not properly involved in the decision-making process concerning their parental rights.

Conclusion : violation (6 votes to 1).

Article 41 – The Court con siders that the finding of violation is sufficient remedy for the non-pecuniary harm sustained by the applicants. It awards a sum by way of costs and expenses.

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