FIRST SECTION

Application no. 37956/11 by A.K. and L.K. against Croatia lodged on 27 May 2011

STATEMENT OF FACTS

THE FACTS

The applicants, A.K. and L.K., are Croatian nationals who were born in 1987 and 2008 respectively and live in K. They are represen ted before the Court by Mr L. Kušan, a lawyer practising in Ivanić Grad.

A. The circumstances of the case

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

On 10 December 2008 the first applicant gave birth to a son, L., the second applicant. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, O. o n the ground that the first applicant was unemployed and had no income; was supported by her mother; followed a special programme during her schooling; and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.

The first applicant consent ed to having L. placed in a foster family.

On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.

The first applicant was unrepresented in those proceedings.

On 10 May 2010 the K. Municipal Court d ivested the first applicant of her parental rights in respect of the second applicant, her son L., born in 2008 , on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.

The relevant part of the decision reads:

“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkempt, was wearing dirty clothes, had greasy h air and smelled unpleasantly as a result of a lack of personal hygiene. When asked by the social worke r when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally unkempt during the second visit she was told that proceedings for divesting her of parental rights would be instituted.

At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy and unkempt premises and did not maintain her personal hygiene . Upon the birth of her son , L. , she had said that she was not capable of caring for him , and L. was placed in a foster family . She had visited him twice in the firs t year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created adequate conditions for living with the child ...

The mother of the child opposed the request and asked that the child be given back to her so that she c ould try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.

The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she ha s been behind in her mental development and lived in a sheltered environment . At school she followed a special programme and with some effort comp l eted training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent , who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specify ing what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and does not see a psychiatrist.

The expert ... stresses that A.K. is intellectual ly under developed , that is to say , she has a mild mental disability, and has an aggravated f orm of scoliosis . On the basis of her mental and physical condition the respondent is not capable of caring for her son ...

... This court accepts the opinion of the ex p ert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up , hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary , which indicated a risk that, if entrusted to his mother ’ s care , the child would not learn to speak or would learn to do so with a delay . I t is questionable whether he would be able to start his schooling on time , because he would surely be behind in his development in comparison with other children of the same age ; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care , and , above all , in sanitary conditions, none of which he would have with his mother.

In her reply the respondent stated that she wished to try to care for her son L, but this court, in order to protect the well being of the child, cannot allow such an experiment.

...”

The applicant then applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal-aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.

On 28 October 2010 the applicant lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. She alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.

She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been correct. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.

Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L. in O.

On the same day the applicant also instituted civil proceedings in the K. Municipal Court against Ž.I., claiming that he was the father of L.

On 10 December 2010 the applicant informed the Centre that in a telephone conversation with L. ’ s guardian from O. on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.

On 14 December 2010 the Centre replied that L. had been adopted and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to the adoption proceedings. No further information could be given to her since the data concerning the adoption was confidential.

On 28 January 2011 the K. Municipal Court dismissed the applicant ’ s request for the restoration of her parental rights on the ground that L. had meanwhile been adopted.

B. Relevant domestic law

The Family Act ( Obiteljski zakon , Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:

Section 11 4

“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or gravely infringes parental responsibility, obligations and rights.

(2) A parent shall be considered to have abused or gravely infringed parental responsibility, obligations and rights if he or she:

1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child ’ s family;

2. has sexually abused a child;

3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child ’ s age;

4. has allowed a child to consume alcoholic drinks, drugs or other narcotics;

5. has incited a child to socially unacceptable behaviour;

6. has abandoned a child;

7. has not provided for a child with whom he or she lives for a period exceeding three months;

8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live;

9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child ’ s wellbeing;

10. has abused the rights of a child in another manner.

(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.

(4) The parental rights shall be restored by a court ’ s decision when the reasons for divesting a parent of such rights cease to exist.

...

(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.

...”

Section 119

“(1) Once adoption has been established parental custody [of the adopted child] shall cease.

... ”

Section 125

“(1) Adoption may be established if it is in the interest of the child.

... ”

Section 129

“(1) Adoption shall require the consent of both parents, except where otherwise provided.

... ”

Section 130

“Adoption shall not require consent of a parent who is ...

1. divested of parental rights

...”

Section 135

“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”

Section 138

...

“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”

Section 139

“If necessary, the competent welfare centre shall hear the child ’ s other relatives about the circumstances relevant to the adoption decision.”

Section 144

“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.

... ”

Section 267

“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”

COMPLAINTS

The applicants complain under Article 6 of the Convention that they did not have a fair trial in the proceedings before the national authorities.

They also complain that their right to respect for their family life was violated by divesting the first applicant of her parental rights in respect of the second applicant and by putting the second applicant up for adoption without the consent or even the knowledge of the second applicant.

The applicants complain under Article 14 in conjunction with Article 8 of the Convention that they were discriminated against in respect of their right to respect for their family life on the basis of the first applicant ’ s mental disability and physical invalidity.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their private and family life, contrary to Article 8 of the Convention , in view of the fact that the applicants were not legally represented in the proceedings whereby the first applicant was divested of her parental rights and that the first applicant was not a party to the proceedings concerning the adoption of the second applicant?

2. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

3. Have the applicants suffered discrimination in the enjoyment of their right to respect for their family life on the ground of the first applicant ’ s physical illness and mental disability , contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention?