A.I. v. Italy (European Court of Human Rights)

Information Note on the Court’s case-law 250
April 2021

A.I. v. Italy – 70896/17

Judgment 1.4.2021 [Section I]

Article 8
Article 8-1
Respect for family life

Trafficking victim of Nigerian origin deprived of any contact with her children, contrary to experts’ recommendations and even before the final decision on their availability for adoption: violation

Facts – The applicant, who is of Nigerian origin and a victim of trafficking, is unable to exercise her contact rights in respect of her two children owing to a prohibition on contact imposed by the minors court in its decision declaring them eligible for adoption, although the proceedings on the children’s adoption status have been pending for more than three years.

Law – Article 8:

The impugned decisions amounted to an interference with the applicant’s exercise of her right to respect for family life. They were provided for in the Adoption Act and pursued the legitimate aims of “protection of health or morals” and “protection of the rights and freedoms” of the two children.

The applicant’s two children had been declared eligible for adoption by an interim decision of the minors court, on the grounds that they were in a state of abandonment; their mother, a Nigerian national, having arrived in Italy as a victim of trafficking, did not have the necessary parental skills to bring them up. The court had decided to end contact between the applicant and her children, without indicating the urgent reasons that had required it to take such a serious decision.

The court of appeal, ruling on an urgent interim request by the applicant for a suspension of the prohibition on contact, dismissed her request eight months later and ordered an expert assessment of whether such meetings would be in the children’s interests. Notwithstanding the expert’s findings, which emphasised the importance of maintaining contacts in order to enable the children to develop their identity, the court of appeal, in its successive judgment confirming that the children were eligible for adoption, held that contact should not be resumed, given that, by the statement making the children available for adoption, the ties with the family of origin had been severed. However, it did not explain why contact had to be interrupted until such time as the judgment on the children’s availability for adoption had become final.

The Court of Cassation, to which the applicant had appealed on points of law, set aside the appeal court’s judgment on the grounds that it had not taken into consideration the section of the expert report emphasising that, in order for the children to construct their identity, the ties with their mother had to be maintained. Also, the court of appeal had not assessed whether, in the present case,  a different adoption model could be applied in the interests of the children.

Despite the availability of less radical solutions, the domestic courts had nevertheless decided to suspend all contact between the applicant and her children although there were no indications that they had been subjected to violence or abuse, contrary to the expert’s recommendations and without giving reasons for this decision, leading to their definitive and irreversible removal from their mother. The courts had failed to assess whether the permanent rupture of contacts with the applicant would genuinely be in the children’s best interests.

The courts had placed the children in two different families. The measure had thus triggered not only the break-up of the family, but also separation of the siblings, and had been contrary to the best interests of the children.

The impugned decision had been taken in spite of the fact that the applicant was a victim of trafficking. Although the authorities had provided health care and welfare assistance, the courts, in contrast, had not taken into consideration her vulnerable position when assessing her parental skills and her request to maintain contact with her children. However, in view of the gravity of the interests at stake, the relevant authorities ought to have carried out a more detailed assessment of the applicant’s vulnerability during the proceedings in question. In this connection, Article 12 § 7 of the Council of Europe Convention on Action against Trafficking in Human Beings provided that the special needs of persons in a vulnerable position were to be taken into account.

Furthermore, the domestic courts had assessed the applicant’s parental skills without taking into consideration her Nigerian origin or the different model for parent-child attachment that was to be found in African culture, although this factor had been clearly highlighted in the expert report.

In the course of the proceedings which had led to the interruption of contact between the applicant and her children, insufficient weight had been attached to enabling the applicant and the children to have a family life. Thus, the proceedings in issue had not been accompanied by safeguards that were proportionate to the seriousness of the interference and the interests at stake.

Conclusion: violation (unanimously).

Article 41: EUR 15,000 in respect of non-pecuniary damage.

(See also Zhou v. Italy, 33773/11, 21 January 2014, Legal summary; S.H. v. Italy, 52557/14, 13 October 2015, Legal summary; Soares de Melo v. Portugal, 72850/14, 16 February 2016, Legal summary; S.M. v. Croatia [GC], 60561/14, 25 June 2020, Legal summary)

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