Communicated on 12 July 2019

THIRD SECTION

Application no. 74048/17 Bahoumou TOTOPA against Spain lodged on 2 November 2017

STATEMENT OF FACTS

The applicant, Ms Bahoumou Totopa , is an Ivorian national, who was born in 1984 and lives in Jerez de la Frontera . She is represented before the Court by Ms T. Fernandez Paredes and Ms P. Fernandez Vincens , lawyers practising in Madrid.

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

1. On 23 March 2017 the applicant ’ s son, who was born in 2013, and sister (the child ’ s aunt) tried to enter Spain by sea from Morocco. They were rescued at sea by the Spanish authorities and transferred to Melilla (a Spanish enclave on the North African coast). They were separated upon arrival. The child was placed in a child protection centre on the same date, where he remained in residential foster care under the guardianship of the child protection authorities; the aunt was initially admitted to hospital, and later transferred to the Spanish mainland within the framework of a special support programme to protect suspected victims of human trafficking. The aunt was not allowed to visit the child before her transfer. She was informed that she could only do so should their family relationship be shown by DNA test.

2. On 17 April 2017 the applicant also tried to enter Spain by sea from Morocco. The boat sank and the persons on board were rescued by the Spanish authorities. They were all transferred to the Spanish mainland.

3. On 27 April 2017 the applicant was referred to ACCEM (a civil society organisation) for support and assistance within the framework of a humanitarian assistance programme. ACCEM informally contacted the relevant authorities of Melilla with the purpose of bringing the applicant and her son together, without success.

4. The applicant then appointed those representing her before the Court as legal representatives. On 7 May and 30 June 2017 they submitted written requests to the child protection service of Melilla asking the authorities to lift the protective measures adopted and to immediately return the child to his mother, and to grant them authorisation to have contact pending family reunification. Only the latter submission has been shown to have been received and registered by the authorities concerned on 13 July 2017. No reply from the authorities was received by the applicant.

5. On 25 July 2017 the applicant reiterated the request for family reunification, enclosing the following documents: certified copies of the child ’ s passport and birth certificate; pictures of the mother and the child together, intended to show their family relationship; and a report recommending family reunification issued by an ACCEM social worker. No reply from the authorities was received by the applicant.

6. In a document prepared by the relevant authorities of Melilla (General Directorate for Minors and Family, Department of Social Welfare and Health), they stated that on 25 and 26 July 2017 they had informed the applicant ’ s representative by phone of the procedure to be followed for verifying the mother-child relationship by DNA tests, and had requested the applicant ’ s DNA sample to be submitted to them.

7. The applicant submitted her DNA samples to a private laboratory for analysis. On 10 August 2017 the laboratory received the samples. A report with the DNA test results was issued on 16 August 2017.

8. On 4 September 2017 the applicant sent (by fax and registered post) a copy of the aforementioned DNA report to the child protection service of Melilla for them to compare the results with those of the child – the submission was only received by the authorities concerned on 11 September 2017 and registered on 15 September 2017.

9. On the same date, the authorities informed the applicant ’ s representative by phone that such a DNA report could not be deemed valid, and that the applicant ’ s DNA samples had to be submitted for them to request their analysis, along with DNA samples of the child, from the officially-designated laboratory (laboratory of the University of Granada). Another phone conversation to discuss details on how to extract and send the samples was held on 7 September 2017.

10. On 7 September 2017 the applicant ( i ) reported the situation to the Office of the Prosecutor of Melilla, requesting it to take action in the interests of the child with the purpose of restoring contact with the applicant and determining the mother-child relationship; and (ii) instituted judicial proceedings (so-called “voluntary jurisdiction” proceedings) requesting the domestic courts to lift the protective measures adopted by the child protection authorities and to return the child (and his guardianship) to his mother, or subsidiarily to grant her authorisation to have contact with the child pending family reunification.

11. On 13 September 2017 the applicant submitted (by urgent registered post) the requested DNA samples to the relevant authorities of Melilla.

12. On 21 September 2017 the authorities acknowledged receipt of the applicant ’ s DNA samples by phone, and requested a consent form to be signed by the applicant – the form was sent by e-mail on the same date.

13. On 22 September 2017 the child ’ s DNA samples were collected.

14. On 25 September 2017, the authorities having received the requested consent forms duly signed by the applicant, the applicant ’ s and the child ’ s DNA samples were submitted to the laboratory of the University of Granada for their analysis.

15. On 9 October 2017, within the framework of the “voluntary jurisdiction” proceedings brought by the applicant (see paragraph 10 above), the court of first instance of Melilla requested the applicant to amend certain defects found in her application within a five-day time-limit. The applicant did so.

16. On 11 October 2017 the applicant received an undated letter in which the child protection authorities of Melilla acknowledged receipt of the applicant ’ s request for family reunification. They stated that the documents submitted were not considered valid to show the mother-child relationship, and that it was necessary to conduct DNA tests in the laboratory of the University of Granada. The authorities stated that they looked forward to receiving information on where to send her the official DNA sample collection kits with a view to duly conducting the DNA tests. This was the first written communication with the applicant by which the authorities informed her of the procedure to carry out the DNA tests with a view to establishing the mother-child relationship.

17. By a decision of 24 October 2017, the court of first instance of Melilla declared the application admissible and summoned the applicant to appear in court on 10 November 2017. The application with the Court was submitted before that date. Accordingly, at the time of lodging the application with the Court, the domestic proceedings were pending.

18. On 25 October 2017 the applicant ’ s representative received a call from the relevant authorities of Melilla stating that the applicant would be authorised to establish phone contact with the child three times per week. No formal decision was issued in this connection. The contact was reportedly authorised because the child had had a very positive response to a picture of the mother that the authorities had showed him. On the same date, the applicant was able to contact the child by video call.

19. On an unspecified date, the applicant lodged a complaint with the Spanish Ombudsperson.

20. On 29 August 2017, the Ombudsperson requested information from the relevant authorities of Melilla .

21. On 6 September 2017, the applicant submitted further information to the Ombudsperson in connection with the complaint.

22. On 15 September 2017, the relevant authorities of Melilla reported on the case to the Ombudsperson . They stated that, as the applicant had previously been informed, the documents submitted by the applicant in her request for family reunification were not considered to be valid to show the mother-child relationship. They insisted that the DNA testing had to be conducted by the laboratory of the University of Granada. The authorities furthermore stated that they were waiting for the applicant to inform them where to send her the official DNA sample collection kits with a view to duly conducting DNA tests.

23. On 28 September 2017 the Ombudsperson informed the applicant of the content of the above-mentioned report, and stated that he would continue following up on the case so that the relevant authorities set up visitation arrangements for the applicant and the child until the applicant could show their family relationship. On the same date, the Ombudsperson requested the authorities to set up visitation arrangements.

24. On the same date, the Ombudsperson referred the case to the General Prosecutor ’ s Office, and requested it to take appropriate measures to remedy the actions adopted by the authorities of Melilla and to facilitate visitation arrangements for the applicant pending family reunification. The Ombudsperson noted that the authorities had not complied with the Protocol on unaccompanied minors (MENA Protocol). The General Prosecutor ’ s Office then requested information in this connection from the Office of the Prosecutor of Melilla.

25. On 4 October 2017 the Office of the Prosecutor of Melilla reported having received a request from the applicant on 7 September 2017 (see paragraph 10 above) and having accordingly requested information on the case from the authorities concerned, who at the time had not provided a reply. The Office of the Prosecutor also stated that in cases like the present one the relevant authorities could delegate the children ’ s guardianship to their parents pending DNA test results, provided that the parents undertook to reside in Melilla. However, as the applicant was not in Melilla, such a condition had not been met in the instant case.

26. On 11 October 2017 the Office of the Prosecutor of Melilla received a report issued by the relevant authorities of Melilla in response to a Prosecutor ’ s request of 2 October 2017. The authorities again stated that the documents submitted by the applicant in her request for family reunification were not considered to be valid to show the mother-child relationship, and that the DNA testing had to be conducted by the laboratory of the University of Granada. The authorities furthermore informed that the DNA samples had already been sent to the laboratory, and that accordingly they were waiting for the results.

27. On 17 October 2017, the Ombudsperson received a report (dated 13 October 2017) issued by the relevant authorities of Melilla in response to an Ombudsperson ’ s request of 9 October 2017. The authorities reiterated the information provided in a previous report (see paragraph 22 above), noted that the MENA Protocol was not binding, and stated that they were acting to ensure the best interests of the child. They furthermore indicated that the applicant, who was residing in Jerez de la Frontera , had not appeared in person before the child protection authorities of Melilla to request visiting arrangements, that was the reason why the contact between the applicant and her alleged child had not taken place.

28. On 26 October 2017 the Ombudsperson informed the applicant of the content of the above-mentioned report, and stated that he would refer it to the General Prosecutor ’ s Office, recommending ( i ) the applicant to be notified of the date and place where she could go for the DNA samples to be taken, and (ii) the applicant ’ s requests for visitation arrangements to be given a reply.

29. On 18 October 2017 the applicant asked the Court under Rule 39 of the Rules of Court to indicate an interim measure to the Spanish Government seeking the immediate family reunification or, alternatively, authorisation to visit and be in contact with the child while the mother-child relationship was being verified.

30. On 19 October 2017 the Court requested further information from the Spanish Government, which they provided on 26 October 2017. The parties filed comments in response to each other ’ s replies.

31. On 8 November 2017 the Spanish Government informed the Court that the DNA test results had just been made available and confirmed the mother-child relationship. Accordingly, the authorities had begun making arrangements with a view to returning the child to the applicant.

32. On 9 November 2017 the Court, in the circumstances, decided not to indicate an interim measure to the Spanish Government.

33. On 20 November 2017 the Spanish Government informed the Court that family reunification had effectively taken place in Melilla on 13 November 2017. The applicant had been authorised to travel to Melilla, and both her and the child had returned together to the applicant ’ s place of residence.

34. Part VII of the Civil Code regulates parent-child relationships. It provides that the relevant judge may take any appropriate measure aimed at the protection of minors within the framework of any civil or criminal proceedings or voluntary jurisdiction proceedings (section 158). Minors are entitled to be in contact with their parents except as otherwise provided in judicial decisions, or by the child protection authority (section 160) – which may decide the temporary suspension of contact and visits from the parents by a reasoned decision and in the interests of the child (section 161). The child protection authority may decide on the return of a minor to his or her family, provided it is the most appropriate measure in the interests of the child. That authority may temporarily place the minor under its guardianship, simultaneously proceeding to take the necessary actions to identify the minor, investigate his or her circumstances and establish, when appropriate, his or her actual situation of abandonment ( desamparo ). Such measures shall be conducted in the shortest time frame possible (section 172).

35. Section 780 (1) of Law 1/2000 on Civil Procedure ( Ley de Enjuiciamiento Civil ) provides for the possibility of directly lodging a judicial appeal before civil courts against an administrative decision on matters related to protection of minors – instead of lodging an administrative appeal against the decision. Such decisions may be contested within a two-month time-limit from the date of service of the decision.

36. Organic Law 1/1996 of 15 January on the legal protection of minors ( Ley Orgánica de Protección Jurídica del Menor ) recognises the principle that in all actions concerning children the best interests of the child shall be a primary consideration. Issues pertaining to unaccompanied minors are further regulated by Organic Law 4/2000 of 11 January on the rights and freedoms of aliens in Spain and their social integration, and its implementing Regulation (approved by Royal Decree 557/2011 of 20 April 2011).

37. The Protocol on unaccompanied minors (MENA Protocol) is a set of good practices aimed at coordinating the actions of the public administrations and institutions concerned, which shall be guided by the principle of the best interests of the child. The policy on unaccompanied minors shall be geared towards family reunification in their country of origin or where their family resides (Chapter I). In cases where an adult claims to be the parent of an unaccompanied minor, the adult shall be requested to give consent to be subjected to DNA tests in order to establish the parent-child relationship. Once consent is given, DNA tests shall be carried out by the national police, with priority, and in the shortest possible time frame (Chapter IV). The child protection authority concerned shall take action to investigate the circumstances of the unaccompanied minor with the purposes of establishing whether there is an actual situation of abandonment ( desamparo ), whether family reunification in his or her country of origin or where his or her family resides is possible and, eventually, whether there is a need for international protection that had not been previously detected (Chapter VII).

COMPLAINTS

38. The applicant complains under Article 8 of the Convention that the separation between her and her child breached her right to respect for family life. In her view, the relevant authorities did not take appropriate action to determine the mother-child relationship and facilitate the family ’ s reunification. Furthermore, they did not take alternative measures allowing her to visit or have contact with the child pending family reunification – it took more than six months for her to be authorised to establish phone contact with the child. The actions taken by the authorities were contrary to the best interests of the child and did not comply with the Protocol on unaccompanied minors (MENA Protocol) .

39. Relying on Article 13 of the Convention, the applicant further complains that there was no effective domestic remedy available to her which could have provided redress for the alleged violations of her right under Article 8 of the Convention. She claims that the decision by which the child was placed in residential foster care under the guardianship of the child protection authorities was not served on the applicant or published in the Official Gazette (as provided for by law), and furthermore the authorities had not replied to any written communication or request submitted by the applicant. In her view, the so-called “voluntary jurisdiction” proceedings were not an effective remedy in the circumstances.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of her complaint of the length of the time she was separated from her son in Spain (17 April 2017 – 13 November 2017)?

2. Has there been a violation of the applicant ’ s right to respect for her family life contrary to Article 8 of the Convention in that respect? In particular, having regard to the length of time during which the applicant and her child were not allowed to be in contact and were separated from each other, and given the length of the procedure for family reunification in the instant case, were the actions taken by the domestic authorities sufficient and adequate to guarantee the applicant ’ s right to respect for her family life? Did the domestic authorities take appropriate action to facilitate the family ’ s reunification (see, mutatis mutandis , Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , no. 13178/03, ECHR 2006 ‑ XI, and Tanda-Muzinga v. France , no. 2260/10 , 10 July 2014, and the authorities cited therein)?

The Government are invited to submit information on the numbers of children arriving in Spain separately from their parents in respect of whom a request for family reunification (that is, for parent-child contact to be established) has been made, and the length of time taken to process such requests.

3. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 8 of the Convention, as required by Article 13 of the Convention?