Last Updated on November 4, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 57789/17
A.D.
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 13 February 2018 as a Chamber composed of:
Ganna Yudkivska, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Egidijus Kūris,
Carlo Ranzoni,
Georges Ravarani, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above application lodged on 31 July 2017,
Having regard to the interim measures indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the factual information submitted by the Government at the request of the Judge Rapporteur pursuant to Rule 49 § 3 (a) of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr A.D., is a Portuguese national who was born in 1966 and lives in Porto. On 10 August 2017 the Court decided of its own motion to grant the applicant anonymity (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr H.V. de Carvalho, a lawyer practising in Porto.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant and as they appear from the documents on file, may be summarised as follows.
3. The applicant’s daughter, C.H., was born on 25 March 2014. C.H.’s mother, L.G., was not living with the applicant.
4. On an unknown date in May 2014 the applicant took L.G. and C.H. to a temporary accommodation centre (Centro de Acolhimento temporário – CAT) in Campo Lindo because he could not afford to house them.
5. On an unspecified date L.G. left the centre.
6. On 18 June 2014 an oral hearing took placebefore the Porto Family Court (domestic proceedings no. 1/1.3TBCDV-A). During the hearing, the applicant declared that he would agree to having C.H. placed in the care of an institution, since he was unable to provide the necessary conditions in which to raise her. L.G. also agreed with the measure of institutional care and expressed her consent to C.H. staying in the care of the applicant at a later stage because she did not have the means to take care of her. Following those statements, the judge of the Porto Family Court decided to apply a provisional measure, consisting of placing C.H. in institutional care.
7. At the conclusion of the hearing, the applicant, L.G. and two representatives of the CAT signed an agreement on the raising and protection (acordo de promoção e proteção) of C.H. Under the agreement, C.H. was to be placed in the temporary care of the CAT of Campo Lindo for six months and her parents could visit her in accordance with the rules set by the centre. The agreement was signed by the judge.
8. On 20 January 2016 the applicant was sent for psychiatric and psychological assessments. The relevant expert reports, dated 16 March 2016 and 18 April 2016, were received by the Family Court of Porto on 22 March 2016 and 20 April 2016. The report of 16 March 2016 of the psychiatric expert concluded that the applicant had the capacity to exercise a parental role. The report of 18 April 2016 of the psychological expert reached the opposite conclusion on the ground that by concentring excessively in his own needs, the applicant lacked the capacity to understand the needs of his daughter.
On 27 May 2016 the psychiatric expert sent to the court a clarification note. Referring to a warrant issued by the German authorities which indicated,inter alia, that the applicant had been convicted to a term of three years and five months’ imprisonment for sexual assault and bodily harm, the expert assumed that the applicant had a personality “with psychopathic features”, which undermined his capacity to exercise a parental role.
9. On 13 July 2016, the CAT sent the court a social report concerning the situation of C.H. in the centre. The report’s conclusion was that C.H. should be referred for adoption, given that her mother had stopped visiting her two years previously and the applicant had not taken any concrete action aimed at assuming his responsibilities towards her.
10. On 11 October 2016, the Multidisciplinary Advisory Team (Equipa Multidisciplinar de Assessoria ao Tribunal – EMAT) of Aveiro sent the court a report about an interview that had taken place with a brother of the applicant. According to this report, the brother of the applicant had stated that he did not know about the birth of C.H. and that he did not have the means to take her into his care. He had also mentioned that he had had no news of another brother for many years and that he did not recommend that C.H. be placed in the care of her father, without specifying the reason.
11. In October 2016 the CAT decided to reduce the applicant’s authorised visits from two to one a week, owing to his lack of initiative in determining how he could play a role (encontrar um projeto de vida) in his daughter’s future.
12. On 25 October 2016 a lawyer appointed to represent the applicant applied to the Family Court, stating that he had not been contacted by the applicant. He explained that on 13 September 2016 he had sent the applicant a registered letter which had been returned. On 13 October 2016 he had sent two more letters, one registered and the other one not registered, to which he was still waiting for an answer.
13. On 6 December 2016 the Family Court of Porto held an adversarial hearing (debate judicial). The applicant as well as three witnesses, namely an officer of the EMAT, a social worker from the Campo Lindo CAT and the director of the Campo Lindo CAT were heard by the court.
1. The Porto Family Court judgment
14. By a judgment of 6 December 2016, the Porto Family Court ordered that C.H. be taken into care with a view to adoption, revoked the applicant’s parental responsibility and forbade all contacts between him and C.H., pursuant to Articles 1978 and 1978-A of the Civil Code. Relying on the witnesses’ statements and on the conclusion of a psychiatric report dated 27 May 2016, the court considered the following as relevant established facts:
“…
5. L.G. stopped visiting C.H. in September 2014 …
6. L.G. has not tried to receive, in any way, news concerning C.H. …
7. No other family member has ever tried to visit C.H.
…
11. The father [applicant] was always present for the visits, twice per week, except for the period of one month in October 2015 in which he did not visit C.H.
…
13. [The father] lives away from his family (vive afastado da família).
14. Except during the hearing, the father has never expressed the will to care for C.H.
15. Although he has mentioned some family members and friends that could care for C.H., [the father] has never introduced any of them.
16. He has only indicated his willingness to find someone to take care of his child when confronted by [staff of the centre].
17. Since last October [October 2016] the father’s visits occur once per week, by a decision of the accommodation centre based on the fact that he has not defined his role in his daughter’s upbringing (não se assumir como projecto de vida para a filha).
18. The child does not ask about her father when she is not with him.
19. She calls him “father” and the visits are not problematic.
20. The visits are playful and C.H. identifies her father as someone to play with.
21. C.H. does not show any signs of sadness when her father does not visit or when he leaves.
22. At the present date, the father intends to define his role in his daughter’s upbringing, requesting 6 more months to organise it, namely in economic terms, in order to execute that project.
23. The father has ‘a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role’.
…”
15. The court further considered that, in accordance with Article 1978 § 2 of the Civil Code, the best interests of the child should prevail over the parents’ interests as well as her integration in her biological family. However, as far as the mother, L.G., was concerned, it found that the conditions of paragraph 1 (e) of Article 1978 of the Civil Code had been fulfilled, since she had not contacted C.H., nor tried to do so, for a period of over two years.
16. Concerning the applicant, the court, relying on the established facts, considered that:
– he had not undertaken any concrete measures to find an alternative to the institutional care;
– he had never taken the initiative of defining his role (encontrar um projeto de vida) in C.H.’s upbringing;
– C.H. did not have an emotional bond with her father, considering him as someone with whom to play, and never asked about him; and
– the father’s attitude during the proceedings had consisted of repeatedly requesting time to find a solution for his daughter’s upbringing but he never came out with one.
17. The Porto Family Court also emphasised that there was no option for a member of the extended family to take C.H. into their care. It considered that there were no perspectives of any change in C.H.’s situation within a short period of time and that six months in the life of a three-year-old child was a long time.
18. Lastly, the Porto Family Court relied on the conclusion of the psychiatric expert report of 27 May 2016, in which it had been stated that the father’s personality was characterised by features that undermined the exercise of a parental role.
The domestic court thus concluded that the conditions of paragraph 1 (d) of Article 1978 of the Civil Code had been fulfilled with regard to the applicant.
19. On 16 December 2016 the applicant appealed against the first-instance decision to the Porto Court of Appeal. He argued that the Porto Family Court should not have concluded that there was no emotional tie between himself and C.H., because it was in contradiction with other established facts and with the witnesses’ statements. The applicant further argued that the court should not have found it established that he had made no efforts to create the necessary conditions in which to raise C.H. because the witnesses’ statements had indicated the opposite; the applicant claimed that he had made numerous efforts to change his living conditions. In addition, the applicant contested established fact no. 23, that he had “a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role”. He claimed that the court’s reasoning was not clear with regard to the reasons supporting that established fact. According to the applicant’s allegations, a first report dated 20 January 2016 had considered that “the applicant did not have any psychiatric illness” and that he “was aware of the specific needs of children in different development stages and that he had the mental and emotional abilities to undertake the role of a father figure”. In the applicant’s view, the Family Porto Court had not provided reasons for its decision to give more weight to the report of 27 May 2016 than to the one of 20 January 2016.
Lastly, the applicant argued that the requirements to make a decision on placing his child for adoption, in particular those of Article 1978 § 1 (d), were not applicable to him. In his view, the only element he lacked in order to raise C.H. was a better financial situation.
20. On 4 January 2017 the Porto Family Court found the appeal admissible and ordered that the case file be sent to the Porto Court of Appeal. In its decision, it maintained the suspension of contacts between the applicant and C.H.
2. The Porto Court of Appeal judgment
21. On 24 January 2017 the Porto Court of Appeal dismissed the applicant’s appeal and upheld the Family Court’s judgment. After examining the evidence produced at first instance, it confirmed the facts that had been considered established.
22. The Porto Court of Appeal found that it resulted from the witnesses’ statements that C.H. did not regard the applicant as her father, but as someone with whom to play. Regarding the applicant’s efforts to improve his financial situation and to define his role in his daughter’s upbringing, the Appeal Court laid emphasis on the fact that he had not found any solution, regardless of the effort he had dedicated to doing so.
23. Concerning the psychiatric expert reports, the Court of Appeal referred to the fact that the report of 27 May 2016 had been requested with the intention of receiving clarifications, in the light of a warrant issued by the German authorities which had been submitted to the proceedings on 4 December 2015. The warrant indicated that the applicant had been convicted for sexual assault and bodily harm (agressão sexual em concurso com lesão corporal dolosa) and sentenced to three years and five months’ imprisonment. He had also lost the possibility of holding public office in Germany or being elected until 12 March 2017 and had been banned from employing, supervising, instructing and training young persons.
24. The court concluded that the two psychiatric reports were not contradictory, as both mentioned that the applicant did not have a psychiatric illness; the report of 27 May 2016 only added to that of 20 January 2016 that the applicant had a “personality with psychopathic features”.
25. The Appeal Court considered that measures capable of integrating a child in his or her biological family should prevail. If the biological family could not fulfil its duties to take care of the child, then adoption should be considered. In this connection, the Appeal Court focused its reasoning on the family situation.
26. Regarding L.G., the Court of Appeal noted that she had been a victim of sexual abuse and physical violence during her life and that she had attempted suicide several times. It also noted that she was in a fragile financial situation.
27. Looking at the applicant’s past, the court noted that his life had been characterised by instability, without any known emotional ties. It also noted that he was unemployed, was a beneficiary of the minimum income allowance (Rendimento Social de Inserção) and was living in a rented room.
28. Furthermore, the court found that the applicant did not have the competence, maturity or lifestyle necessary to create a favourable environment in which to raise a child. The court expressed understanding of the applicant’s affection for C.H. and his disappointment with the current situation, but emphasised that the child’s developmental needs should prevail.
29. On an unknown date the applicant sought leave to appeal to the Supreme Court of Justice. He submitted a request to lodge an ordinary appeal under Article 671 of the Code of Civil Procedure or, alternatively, an exceptional appeal (recurso de revista excecional) under Article 672 of the Code of Civil Procedure.
30. On 14 March 2017 the Porto Court of Appeal declared the appeal inadmissible on the grounds that decisions adopted on grounds of “suitability or appropriateness” (conveniência ou oportunidade) were not amenable to appeal before the Supreme Court of Justice.
31. On an unknown date the applicant challenged that decision before the Supreme Court of Justice.
32. On 11 May 2017 the Supreme Court of Justice declared the appeal inadmissible on the grounds that the Appeal Court had fully upheld the first-instance decision (dupla conforme). It further considered that the applicant had not submitted clear arguments that would justify an exceptional appeal.
3. Rule 39 request
33. Following a request from the applicant made in a letter of 30 July 2017, on 10 August 2017 the Court granted an interim measure pursuant to Rule 39 of the Rules of Court, indicating to the Government that the adoption of the applicant’s child should be stayed and his contacts with his child reinstated until the end of the proceedings before the Court.
34. On 23 August 2017 the Government contested the Court’s decision concerning the applicant’s access to his daughter in view of the circumstances of the case.
35. Following a request for information, on 12 September 2017 the Government submitted relevant case-file documents in order to contest the interim measure that had been applied.
B. Relevant domestic law
36. The relevant provisions of the Civil Code, as in force at the relevant time, read as follows:
Article 1978
Placement with a view to adoption
“1. In the context of promotion and protection proceedings, the court may place a child into care with a view to future adoption if the emotional ties characteristic of a parent-child relationship do not exist or have been seriously undermined, subject to any of the following circumstances:
…
d) if the parents, by a wilful act or omission, even if for a manifest inability due to reasons of mental illness, seriously endanger the safety, health, upbringing, education or development of the child;
e) if the parents of a child taken into care by a person, an institution or a family have revealed a manifest lack of interest for their child in such a way that the quality and continuity of those ties are compromised for a period of at least three months preceding the request for placement in care.
2. The court shall take into consideration primarily the rights and interests of the child when assessing the above-mentioned circumstances.
3. A child is considered to be in danger if any of the circumstances indicated in the legislation on the protection and promotion of the rights of children prevail.”
Article 1978-A
Effects of judicial placement … in an institution with a view to adoption
“Once placement … in an institution has been ordered with a view to adoption, parental responsibility is withdrawn from the parents.”
COMPLAINTS
37. The applicant complained under Article 8 of the Convention of the decision to place C.H. into care with a view to adoption without his consent, the withdrawal of his parental responsibility and the prohibition of contacts between him and C.H.
38. Invoking Article 6, the applicant further alleged that the proceedings had been lengthy and that he had not been represented by a lawyer until late in the proceedings.
THE LAW
39. The applicant claimed that the domestic courts’ decision to place C.H. into care with a view to adoption, to withdraw the applicant’s parental responsibility and to prohibit contacts between him and C.H. had been in breach of his family life. He alleged that the domestic authorities had taken that decision on the grounds of his lack of material conditions and also on the grounds of absence of an emotional bond between him and his daughter, which had resulted from the reduction of his authorised visits to the centre from two to one per week. The applicant also complained of the unreasonable time taken by the proceedings and the fact that a lawyer had not been appointed for him until the stage of the oral hearings before the Family Court of Porto. He relied on Article 6 of the Convention.
40. The Court, being the master of the characterisation to be given in law to the facts of the case (see Pontes v. Portugal, no. 19554/09, § 66, 10 April 2012), considers that the applicant’s submissions fall to be examined under Article 8 of the Convention alone, which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Existence of an interference
41. The Court observes that by a judgment of the Porto Family Court of 6 December 2016, which was upheld by the Court of Appeal of Porto on 24 January 2017, C.H. was placed into care with a view to adoption and the applicant deprived of his parental responsibility, which included a prohibition on contact with C.H. (paragraphs 14 and 21 above).
42. The measures taken in respect of C.H. amounted thus to an interference with the applicant’s family life. Such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see Saviny v. Ukraine, no. 39948/06, § 47, 18 December 2008). Considering that the measures were provided for by Articles 1978 and 1978-A of the Civil Code, such interference was “in accordance with the law” (paragraphs 14 and 36 above). The Court further finds that the interference pursued a legitimate aim, namely protection of the “rights and freedoms” of C.H. It will now examine whether the impugned decisions were “necessary in a democratic society” for the achievement of that aim.
B. Was the interference necessary in a democratic society?
1. General principles
43. In determining whether an impugned measure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 179, 24 January 2017). According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (ibid., § 181).
44. As regards the extreme step of severing all parental links with a child, the Court has taken the view that such a measure would cut a child from its roots and would only be justified in exceptional circumstances by the overriding requirement of the child’s best interests (see R. and H. v. the United Kingdom, no. 35348/06, § 81, 31 May 2011). That approach, however, may not apply in all contexts, depending on the nature of the parent-child relationship (see P., C. and S. v. the United Kingdom, no. 56547/00, § 118, ECHR 2002‑VI). Where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004‑III (extracts)).
45. In assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidence (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see Saviny, cited above, § 51; see also Assunção Chaves v. Portugal, no. 61226/08, §§ 82-84, 31 January 2012).
46. Furthermore, the Court has repeatedly found that in cases concerning a person’s relationship with his or her child, there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. This duty is decisive in assessing whether a case concerning contact with a child was heard within a reasonable time as required by Article 6 § 1 of the Convention, and also forms part of the procedural requirements implicit in Article 8 (see, inter alia, Hoppe v. Germany, no. 28422/95, § 54, 5 December 2002 and Strömblad v. Sweden, no. 3684/07, § 80, 5 April 2012).
2. Application of those principles in the present case
(a) Regarding the placement of C.H. in an institution with a view to adoption
47. At the outset, the Court observes that C.H. has been living in public care since she was two months old (see paragraphs 3 and 4 above). Although her mother was with her at the beginning, it appears that she soon left her alone in the CAT (see paragraph 5 above).
48. Although the domestic courts pointed out that measures to integrate a child in his or her biological family should prevail (see paragraphs 15 and 25 above), they found that in the instant case, the conditions necessary for reinstating C.H. into her biological family were lacking.
49. The courts firstly observed that the mother had stopped visiting her daughter in September 2014 (see established facts nos. 5 and 6 in paragraph 14, see also paragraph 15 above) and that she was in a fragile situation, not only financially but also psychologically (see paragraph 26 above). The Court also notes that during the hearing held on 18 June 2014, L.G. agreed that C.H. should eventually be placed in the care of the applicant (see paragraph 6 above), hence at no point did she express the wish to take care of her daughter.
50. As regards the applicant, the courts found that he had neither adequate means to take care of his child, nor had he undertaken any concrete action since she was born aimed at taking her into his care (paragraphs 16, 27 and 28 above). They also considered that he had not developed any emotional bond with his daughter, even though it was established that the interaction with his daughter during the visits had been positive (see paragraph 16 above). Furthermore, the courts relied on the conclusions of a psychiatric report of 27 May 2016, which indicated that the applicant had a personality “with psychopathic features”, which undermined his capacity to exercise a parental role (see paragraphs 8, 18 and 23, above). To support that conclusion, the report referred to a warrant issued by the German authorities, which indicated that the applicant had been convicted to a term of three years and five months’ imprisonment for sexual assault and bodily harm (see paragraph 23, above). The Court of Appeal also took into consideration his unstable past (see paragraph 27 above).
51. The domestic courts clearly pointed out that the applicant’s precarious financial situation was not a determinant factor for the decisions. They relied more on the applicant’s psychological instability, finding that it was in the best interests of C.H. that she should live in an environment favourable to her upbringing and development, which the applicant could not offer her.
52. As to the possibility of integrating C.H. into her extended biological family, the domestic courts found that that would not be a solution in view of the fact that no other family members had tried to visit the child in the institution, and also considering the applicant’s lack of contact with his own family (paragraph 14- established facts nos. 13 and 15). The Court also observes that a paternal uncle of C.H. had declined the opportunity of taking her into his care (see paragraph 10).
53. In view of the above observations, the Court considers that the domestic courts weighed a series of factors, in particular of a factual, emotional, psychological, material and medical nature, and struck a fair balance between the interests of each person, with a constant concern for determining the best interests of the child. Regard being had to the fact that the applicant never had custody or care of C.H. and had never offered a concrete alternative to the public care in which his daughter had been placed since May 2014, the Court does not find that the decisions in the present case were disproportionate to the aim of securing the child’s best interests.
(b) Regarding the procedural guarantees and length of proceedings
54. Turning to the decision-making process, the Court observes that it results from the case file that the applicant was assisted by counsel at least since September 2016 (contrast with Soares de Melo v. Portugal, no. 72850/14, §§ 36 and 116, 16 February 2016). He was therefore involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see paragraphs 12 and 13 above).
55. The Court further notes that in coming to the decisions, the domestic courts relied not only on the experts’ reports but also on the views of all the parties involved, including the applicant (see paragraphs 14, 22 and 23above). The Porto Family Court, having held oral hearings, benefited from direct contact with the parties and could hear the witnesses and thus make a clear assessment of the issues before it. Moreover, the Porto Court of Appeal re-assessed questions of fact and gave a reasoned judgment confirming the Porto Family Court judgment.
56. As to the length of the proceedings, the Court considers that the period that should be taken into consideration starts only after a lawyer had been appointed for the applicant (see paragraph 12 above). The proceedings in the period before that date were based on an agreement between the parties involved, including the applicant, who had requested time to prepare for taking his daughter into his care (see paragraph 6 above). In the absence of any concrete solution from C.H.’s parents, it appears that the proceedings moved to another stage aimed at finding an alternative solution, which explains the appointment of a lawyer for the applicant at that point. The proceedings were ongoing from that date until 24 January 2017, when the Court of Appeal of Porto confirmed the placement of C.H. in an institution with a view to adoption. The proceedings thus lasted less than five months at two levels of jurisdiction, which cannot be considered as lengthy.
57. In view of the foregoing, the Court considers that the decision-making process satisfied the requirements of Article 8 of the Convention.
3. Conclusion
58. It follows from the above observations that there is no appearance of a violation of the applicant’s rights under Article 8 of the Convention. The application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
59. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 March 2018.
Marialena Tsirli Ganna Yudkivska
Registrar President
Leave a Reply