CEDH · CASELAW;CLIN;ENG — 18 juin 2013

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Spain - 28775/12 Judgment 18.6.2013 [Section III] Article 8 Positive obligations Article 8-1 Respect for family life Respect for private life Placement of child on account of mother’s financial situation and without taking into account subsequent change in circumstances: violation   Facts – On 23 August 2005 the applicant’s daughter, aged three years and ten months at the time, was taken away from her mother at the request of a social worker after the applicant had visited the social services department seeking financial assistance because of her straitened circumstances. Two days later the competent provincial department issued a provisional decision declaring the child to have been abandoned. On 30   August 2005 the applicant was informed that the department had assumed guardianship of her daughter and that the latter had been placed in a children’s home. The applicant saw her daughter for the last time on 27   September 2005. In June 2006 administrative procedures were set in motion with a view to having the child placed with a foster family. Law – Article 8: The decision to place the child in a home and the subsequent decisions to withdraw the applicant’s contact rights completely and permanently and to transfer the child to another home had all been taken on the basis of the social worker’s report dated October 2005. However, that report should have been followed swiftly by a detailed assessment of the child’s situation and her relationship with her parents, in accordance with the rules in force. The Court was not persuaded by the reasons considered by the administrative authorities and the domestic courts to provide ample justification for automatically issuing a guardianship order and declaring the child to have been abandoned, in particular the child’s allegedly serious condition, her supposed lack of emotional attachment to her mother and the claim that the latter’s violent conduct during contact visits was disrupting the child’s stability and development. The courts had not substantiated the reasons given. No consideration had been given to the fact that the child had been very young when she was separated from her mother, to the existing emotional bond between mother and child or to the length of time that had elapsed since their separation and the attendant consequences for both of them. The guardianship order had been made because of the applicant’s difficult financial situation at the time, without any account being taken of subsequent changes in her circumstances. The applicant had simply been faced with a shortage of funds, a situation which the national authorities could have helped remedy by means other than the complete break-up of the family, a measure of last resort to be applied only in the most serious cases. The role of the social welfare authorities was precisely to help persons in a precarious situation find ways of overcoming their difficulties. The courts had refused to take into account the change in the applicant’s financial circumstances which she had sought to invoke in order to appeal against the declaration that her daughter had been abandoned, confining themselves instead to upholding the declaration adopted by the administrative authorities. The decision to place the child in care had been consistently opposed by the applicant with the support of the prosecutor responsible for minors. However, the child’s placement in a foster family with a view to her adoption had been ordered in 2009 on the sole grounds of the lack of contact between the child and her mother over a period of several years, although the contact between them had ceased precisely as a result of the administrative and judicial decisions taken. Furthermore, the alternative proposal to entrust the child to the care of her great-uncle had been rejected without reasons being given. The Court considered that a care order should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. The applicant had been forced to prove that she was a good mother to her child. When she had submitted evidence to that end, the competent courts had considered, without any supporting arguments, that it was insufficient to outweigh the opinion of the administrative authorities, which had in the meantime been upheld by a judicial decision. The applicant’s vulnerability at the time her daughter was taken into care might have played an important role in understanding the situation of the child and her mother. The subsequent change in the applicant’s financial circumstances did not appear to have been taken into consideration by the judge in 2009. The follow-up report issued in 2011 by the child protection services had noted that, almost six years after being separated from the applicant, the child had settled well in her foster family, which met all her material and emotional needs. In that connection the length of time that had elapsed – the result of the administrative authorities’ inaction – coupled with the inaction of the domestic courts, which had not found to be unreasonable the grounds advanced by the authorities for depriving a mother of her daughter for financial reasons alone, had been a decisive factor in precluding any possibility of the applicant and her daughter being reunited as a family. Regard being had to these considerations and notwithstanding the respondent State’s margin of appreciation in the matter, the authorities had failed to make adequate and effective efforts to secure the applicant’s right to live with her child and had thereby breached her right to respect for her private and family life. Conclusion : violation (unanimously). Article 41: EUR 30,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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