Court/Judicial body: European Court of Human Rights
Citation: Application no. 10427/02
Date: 21 November 2006
Instrument(s) cited: European Convention on the Protection of Human Rights and Fundamental Freedoms
The Court held, unanimously, that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights in respect of S.B.’s being taken into public care and removed from her family; that there had been a violation of Article 8 in respect of the lack of contact between the first two applicants and S.B. and the unsatisfactory arrangements for meetings between them. Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant 3,000 euros (EUR) for non-pecuniary damage and EUR 6,000 to Mrs Roda and Mr Bonfatti for costs and expenses. (The judgment is available only in French.) 1. Principal facts The applicants, Daniela Roda and Matteo Bonfatti, are Italian nationals who were born in 1962 and 1979 respectively and live in Finale Emilia and Massa Finalese (Italy). They are also acting on behalf of S.B. – Mrs Roda’s daughter and Mr Bonfatti’s sister – who was born in 1988 and lives in Mirandola. The application concerns the decision to take S.B. into public care in 1998 on account of presumptions that the child had been sexually abused by members of the applicants’ family. In October 1998 M., S.B.’s cousin, informed staff from the social services department that she herself, S.B. and other children had been sexually abused by her own parents and other adults, in particular Mrs Roda’s sister and her husband, M.B. On 6 November 1998 the children’s court decided, among other measures, to suspend the parental authority of Mrs Roda and her husband, to appoint the Mirandola AUSL (local health service) as S.B.’s guardian and to place the child in a “protected” environment. The court found M.’s statements, which matched those of other children, to be credible and medical examinations had confirmed the sexual abuse. It was therefore vital to remove S.B. from her home, since her father appeared to be directly involved in the offences and her mother seemed, at the least, incapable of providing her child with the necessary protection. The children’s court also noted that, in addition to S.B.’s father, other members of Mrs Roda’s family were implicated: her sister and brother-in-law, and the latter’s father. That decision was enforced on 12 November 1998, the date on which S.B. was placed in the custody of social services. In February 1999 two forensic reports found, in particular, “lesions corresponding to multiple and repeated full sexual relations”. The child was monitored by a psychologist, to whom she confided in July 2000, before retracting her statements, that she had been mistreated by her father and was afraid of returning to her mother’s home. In January 2001 the children’s court decided that the Mirandola AUSL would continue to be responsible for S.B.’s custody, so that it could “place her in a protected environment, preferably within a family”; it declared that the father was to be deprived of parental authority and that the suspension of contact between the mother and her daughter was to be maintained, and dismissed Mr Bonfatti’s request to resume contact with his sister on the ground that he had shared his parents’ attitude, denying the possibility of suffering on S.B.’s part. The applicants appealed unsuccessfully against that decision. Following applications by Mrs Roda, the guardianship judge granted her leave to see her daughter; the first meeting was held on 28 March 2002 and was followed by four further meetings in 2002 and six in 2003. The child subsequently appeared reticent about the idea of increasing the frequency of meetings with her mother and stated in 2004 that she did not wish to return home, preferring to continue seeing her once every two or three months. In the meantime, S.B. was placed with a foster family in December 2002. At present Mrs Roda continues to see her daughter in the presence of social workers. Mr Bonfatti has applied, among other things, for custody of his sister and requested contact meetings with her. In May 2006 the children’s court dismissed those requests and instructed the social services to assess whether it would be in S.B.’s interests to resume contact with her brother. The criminal proceedings brought against S.B.’s father and 17 other persons, in particular Mrs Roda’s sister and brother-in-law, ended in June 2000 with all the defendants being convicted of sexual abuse against underage children. On appeal, however, S.B.’s father was acquitted, although the conviction of M.’s parents was upheld in respect of abuse committed in their home against M., her brother and four other children. In November 2002 the Court of Cassation upheld that judgment, with the exception of the findings in respect of one of the defendants. 2. Procedure and composition of the Court The application was lodged on 21 January 2002. Judgment was given by a Chamber of seven judges, composed as follows: Jean-Paul Costa (French), President, András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Antonella Mularoni (San Marinese), Elisabet Fura-Sandström (Swedish), Danutė Jočienė (Lithuanian), Dragoljub Popović (Serbian), judges, and also Stanley Naismith, Deputy Section Registrar. 3. Summary of the judgment Complaints The applicants complained, in particular, of a violation of Article 8 (right to respect for private and family life) of the Convention on account of the removal of S.B. from the family home and their lack of any contact with the child for almost four years. Decision of the Court Article 8 The Court noted that S.B.’s placement in care had amounted to an interference in the applicants’ family life. That interference had been in accordance with the law and had pursued a legitimate aim, namely protection of the child’s interests. With regard to S.B.’s removal and placement in care, the Court considered that those measures could be regarded as proportionate and “necessary in a democratic society” in order to protect the child’s health and rights. The complexity of this case, in which members of the victims’ close families had been accused, could reasonably have led the authorities to conclude that S.B.’s continued residence in her mother’s home was likely to be detrimental to her. The Court therefore concluded that there had been no violation of Article 8 in that respect. With regard to the lack of contact between S.B., her mother and her brother, and the arrangements for meetings between them, the Court pointed out that any placement in public care was in principle to be considered a temporary measure, to be suspended as soon as circumstances made that possible, and was to be implemented with a view to reuniting the parent and child concerned. Although all of the judicial authorities’ decisions had been taken after due reflection and on the basis of investigations carried out by experts and the social services, the Court could not overlook the fact that the time which elapsed following the resumption of contact between the mother and daughter had not facilitated the renewal of close ties between the applicants. Even taking account the hesitation expressed by S.B., who was reluctant to have more frequent contact with her mother, it was appropriate to conclude that the measures taken to strike a fair balance between the girl’s interests and the rights of Mrs Roda and Mr Bonfatti to respect for their family life had not been entirely satisfactory. The Court therefore concluded that there had been a violation of Article 8 on account of the prolonged suspension of contact and the unsatisfactory arrangements for meetings between the applicants.
Link to full judgement: http://hudoc.echr.coe.int/eng?i=001-78098 (in French)