Published on 8 November 2021

THIRD SECTION

Application no. 42590/21 Margarita PAREJA AMEZCUA against Spain lodged on 12 August 2021 communicated on 20 October 2021

STATEMENT OF FACTS

1. The applicant, Ms Margarita Pareja Amezcua, is a Spanish national, who was born in 1984 and lives in Torres. She is represented before the Court by Mr S. Lopez Poyatos, a lawyer practising in Jaen.

The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant and her partner had a son, M., born on 6 May 2019. She also has an older child from a previous marriage.

4. On 6 August 2019, the applicant’s father made a phone call to inform the Social Services (administrative authorities) that her partner ill-treated his daughter and that they were both drug users. On 9 August 2019 the Social Services declared the abandonment of their youngest son, M., and recommended to place him in temporary family foster care without any visits from his parents. The declaration did not mention the applicant’s eldest son.

5. The administrative declaration reflected that, according to the phone call and some technical reports (which have not been submitted to the Court), the applicant and her partner used drugs even when the children were present, and they were not in a position to take care of them. It also stated that the applicant had rejected an opportunity to work, as well as to undergo an offered mental treatment. It held that the applicant had once been referred to a hospital as a potential victim of violence against women, but she had denied any violence against her to the social services, as well as any exposure of her children to violence or drug use. The declaration referred to the applicant’s partner as her “aggressor” although it did not mention the existence of any past or ongoing criminal proceedings.

6. The declaration of abandonment of M. was allegedly adopted without hearing the parents. The declaration however stated that its content should be notified to the parents and that they had the right to formulate their opposition and to appeal the measure.

7. On 12 August 2019, before the administrative decision had been notified to the applicant and her partner, the Family Court of Jaén issued a judicial decision ( Auto ) authorising the execution of the declaration of abandonment, by entering into their home and taking the baby. It stated that the fact that the parents had not been heard was justified by the risk that they could hide the baby or flee, but did not provide any support for the existence of such risk. The decision stated that the measure was proportionate and necessary and that there were no less intrusive means to find out where the baby was.

8. On 16 August 2019, a delegation from the Service of Protection of Minors of the Junta de Andalucía escorted by members of the police forces entered the applicant’s home, without any prior notification, and requested them to hand over their then three-month-old baby. The parents did not pose resistance and handed over the child.

9. They lodged an appeal against the judicial decision on 21 August 2019, where they complained of a violation of their right to the inviolability of their home due to the trespassing of their property without their prior notification or consent; a violation of their right to family life for the separation from their three-month old nursing child; a violation to their right to physical and moral integrity; and a violation of their right to fair proceedings and effective judicial protection. They alleged that the decision had been based exclusively on a complaint lodged by the applicant’s father without any further evidence of the alleged risk that the child was facing or the lack of due care that he was suffering. They provided a psychological report according to which they had the capacity to take care of their child and maintain custody over him, and some medical tests according to which there was no sign of any drug consumption.

10. In parallel to the above, criminal proceedings were initiated to investigate the alleged accusations of ill-treatment against the applicant. However, after hearing her and her partner, the public prosecutor requested the dismissal of the investigation. The Specialised Court in Violence against Women dismissed the complaint on 7 October 2019. There appeared to be no signs of the commission of any offence, and no evidence of the abuse or use of drugs by either the applicant or her partner.

11. On 16 April 2020, the Audiencia Provincial of Jaén dismissed the appeal against the decision of the Family Court, upholding it, on the grounds that it had been justified not to notify the parents in order to adopt the abandonment decision, for the same reasons already stated by the Family Court. The public prosecutor had lodged a motion to uphold the decision.

12. The applicant lodged an amparo appeal with the Constitutional Court. On 12 January 2021, the appeal was declared inadmissible because the Constitutional Court found that there did not appear to be any violation of a right which could be protected through an amparo appeal.

COMPLAINTS

13. The applicant complains under Articles 3 and 8 of the Convention that the enforcement of the declaration of abandonment of her son, without prior notification or hearing, and the separation from her baby, who at the time was three months old and is now over two years old, inflicted on her a level of suffering that amounts to inhuman or degrading treatment and violated her right to respect for her family life. In her view, neither the administrative nor the judicial authorities took appropriate action to ascertain whether she and her partner were capable of taking due care of their child and declared his abandonment without sufficient justification.

14. She also complains under Article 8 § 1 about a breach of her right to respect for her home, in the light of the enforcement of the declaration of abandonment and the request to hand over her child by breaking into her home without a previous hearing or notification and without her consent.

QUESTIONS TO THE PARTIES

1. Was the judicial decision of 12 August 2019 which ordered the enforcement of the declaration of abandonment of the applicant’s son, M., sufficiently justified in the light of the evidence at the disposal of the Family Court and of the requirements to order such enforcement provided in Article 178 of the Civil Code?

Based on the said justification, did the judicial order to enforce the said declaration of abandonment of the applicant’s son amount to a violation of the applicant’s rights protected under Article 3 and/or under Article 8 of the Convention?

2. Furthermore, did the judicial order to enforce the declaration of abandonment of her son without a previous hearing and without her consent violate the applicant’s right to respect for her home, contrary to Article 8 of the Convention?

3. The parties are requested to provide the technical and medical reports, decisions obtained in criminal proceedings, or any other documents or information which served as grounds to justify the administrative declaration of abandonment of the applicant’s youngest son. In addition, they are asked to submit the administrative decision ( providencia ) of 12 August 2019 by which the Social Services requested the Family Court to authorise the execution of the declaration of abandonment by entering into the applicant’s home without a previous hearing or notification. Moreover, the parties are requested to provide the Public Prosecutor’s submissions on the said request, and any additional documents which were taken into account by the Family Court to base its order to enforce such declaration.

The parties are furthermore requested to submit information and evidence pertaining to the custody or parental authority over the applicant’s youngest son to current date, and whether he is still in a foster family. In addition, the parties are asked to clarify whether there are any ongoing proceedings, whether administrative or judicial, concerning the child’s declaration of abandonment, and if there are, they are requested to submit the relevant information and the final judicial decisions adopted therein.