Information Note on the Court’s case-law 241

June 2020

Omorefe v. Spain - 69339/16

Judgment 23.6.2020 [Section III]

Article 8

Article 8-1

Respect for family life

Respect for private life

Failings in decision-making process depriving foreign national in difficulty of contact with her baby, who was taken into care at her request, then adopted without her consent six years later: violation

Facts – The applicant is a Nigerian national. In February 2009 her son, then aged nearly 2 months, was taken into care by the authorities and placed in a children’s home, at the mother’s request, then declared legally abandoned. The applicant’s parental authority was suspended, b ut the visiting arrangements set by the authorities and the parents’ rights to be informed of the situation were maintained. The measure initially envisaged was that the child could be reintegrated into his biological family in the medium term provided tha t his parents achieved certain objectives, with the help of social services. The process was to be reviewed by the child protection authority after six months.

In May 2009, however, the applicant’s visits to her son were suspended and the child was tempora rily placed in pre-adoption foster care. The justification given for the decision was that the parents were destitute, being irregular migrants without employment or stable accommodation, that there was an ongoing crisis and conflict between the parents an d that the mother had an ambivalent attitude towards her baby. The applicant objected to being deprived of contact rights and to her son’s adoption.

Largely based on the applicant’s lack of parenting skills, the first-instance court took the view that the adoption could take place without the mother’s consent. But that judgment was annulled in 2012 by the Audiencia Provincial court, which found that the child’s adoption required the consent of the applicant as she had not been stripped of her parental autho rity. The pre-adoption placement measure was thus cancelled. In June 2015 the first-instance court granted her visiting contact for one hour per month, for supervised visits at a centre.

However, in October 2015 the Audiencia Provincial reversed its previo us ruling (of 2012) and authorised the adoption of the applicant’s son, finding that her lack of consent was not an obstacle, in spite of the prosecutor’s submission to the contrary. It nevertheless indicated that in future there could be “some form of rel ations or contact through visits or communication with the biological mother”.

Law – Article 8: The impugned decisions leading to the adoption of the applicant’s child could be regarded as an interference with the exercise of the right to respect for the private and family life of the applicant and her biological child. This interferenc e was provided for by law and pursued the legitimate aim of protecting the rights and freedoms of the child. The Court found, however, and notwithstanding the respondent State’s margin of appreciation in such matters, that the process underlying the contes ted decisions had not been conducted in such a way as to ensure that all the views and interests of the applicant had been duly taken into account and had not been surrounded by safeguards proportionate to the seriousness of the interference and the intere sts at stake.

Firstly, while the applicant was supposed to have received support and guidance from the social services with a view to recovering her child, the assistance provided had not been assessed until 2013, thus leaving the applicant to fend for he rself in striving to achieve the relevant objectives that had been set.

Secondly, the decision of the assessment committee proposing pre-adoptive foster care for the child had been issued just twenty days after the applicant had been informed that she wou ld have a period of six months within which to achieve those objectives in order to recover her son. Thus, well before the expiry of this period, she had been deprived of contact with her son and the adoption of the child without the mother’s consent had b een proposed to the court by the competent authorities.

Thirdly, as indicated by the Audiencia Provincial in its judgment of 2012, the law required, in order for the deprivation of parental authority to be decided, an adversarial judicial procedure, which had not been forthcoming in the present case. Moreover, no serious reason had been given for not conducting such proceedings.

Fourthly, the authorities had failed to weigh up the child’s interests against those of the biological mother, but had merely focused on the former, and had not seriously considered the possibility of reuniting the child with his biological mother. They ha d not given due consideration to the applicant’s efforts to regularise and stabilise her situation.

In this connection, in its judgment of 2012, the Audiencia Provincial had noted a number of shortcomings in the decision-making process. It had stated that there was no psychological report showing a lack of affection on the part of the mother for her son and that poverty could not be the main reason for depriving a mother of her rights and obligations. It had also taken the view that, although the aim of th e legislation was to reintegrate minors into their biological families, this priority issue had not been considered at all by the public authority.

Fifthly, the applicant’s contact rights had been withdrawn from her in May 2009 without any psychological as sessment. This had considerably restricted the factual assessment of the evolution in the applicant’s situation and her parenting skills at the relevant time. Moreover, the applicant had struggled, as seen from her insistence and the consistency of her req uests, to ensure that her right to visit her son was finally recognised by the first-instance court in the context of supervised meetings. However, in spite of th              at decision, there had still been no visits organised. There had been no contact between the applicant and her child even after the last decision of the Audiencia Provincial indicating that the possibility of “relations or contact through visits or communication with the biological mother” could be considered if this was found to be in the child’s best interests.

Moreover, the passage of time had had the effect of rendering permanent a situation that was supposed to be provisional. In October 2015 the Audiencia Provincial had thus authorised the adoption of the applicant’s son on the grounds that h e had been living with his foster family practically since birth and that his mother did not have all the requisite parenting skills, without seeking any independent assessment.

While acknowledging that the domestic courts had endeavoured in good faith to safeguard the minor’s welfare, there had been serious failings in the proceedings conducted by the authorities, and by certain first-instance courts. It was understandable that the applicant’s child should have been taken into care by the authorities at he r request. However, that decision should have been accompanied as soon as possible by the most appropriate measures to enable an in-depth assessment to be made of the child’s situation and his relationship with his parents, if necessary with the father and mother separately, in accordance with the legal framework in force. The situation had been particularly serious in view of the child’s young age. The Court was not persuaded by the reasons that had been deemed sufficient by the authorities and domestic co urts to justify the child’s pre-adoption placement and then adoption, in spite of the clear opposition of the applicant, who had only been able to exercise her contact rights for three months, at the start of the procedure, suggesting that the foster place ment in question had been the intention from the outset. The administrative authorities had not envisaged any other less radical measures available in domestic law such as temporary or ordinary fostering arrangements, not with a view to adoption, especiall y as such alternatives would have been more respectful of the foster parents in not raising false hopes. The role of the social services was precisely to help people in difficulty, especially in this case the child’s mother, who had been obliged to volunta rily give up her child in view of her serious personal and family difficulties.

Having regard to the foregoing, the authorities had not made sufficient efforts to protect the applicant’s right to retain contact with her child, thus breaching her right to r espect for her private and family life.

Conclusion : violation (unanimously).

Article 46: The Court took the view that it was not its role to decide on the specific outcome of the applicant’s claim in seeking to recover contact with her biological son. Howe ver, in view of the circumstances of the case and the urgent need to put an end to the violation of the applicant’s right to respect for her family life, the Court called on the domestic authorities to re-examine, in a timely manner, the situation of the a pplicant and her minor son in the light of its judgment, and to envisage the possibility of establishing some form of contact between them, taking account of the child’s current situation and best interests, and to take any other appropriate measure in acc ordance with those interests. The Court indicated that the execution of the present judgment should involve following up the decision of the Audiencia Provincial which had called for such a possibility. The most appropriate form of redress consisted in ens uring that the applicant was restored as far as possible to the situation in which she would have found herself if Article 8 had not been breached. Domestic law provided for the possibility of reviewing final decisions found to be in breach of Convention r ights by a judgment of the Court “subject to any rights acquired by third parties acting in good faith”.

Article 41: no claim had been made for any damage.

(See also Pini and Others v. Romania , 78028/01 and 78030/01, 22 June 2004, Information Note 65 ; K.A.B. v. Spain , 59819/08, 10 April 2012, Information Note 151 ; Ageyevy v. Russia , 7075/10, 18 April 2013, Information Note 162 ; Soares de Melo v. Portugal , 72850/14, 16 February 2016, Information Note 193 ; Haddad v. Spain , 16572/17, 18 June 2019, Information Note 230 ; Strand Lobben and Others v. Norway [GC], 37283/13, 10 September 2019, Information Note 232 ; and Zelikha Magomadova v. Russia , 58724/14, 8 October 2019, Information Note 233 )

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

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