Scozzari and Giunta v Italy and another (application nos 39221/98 and 41963/98)
| Judgment Date | 01 November 1998 |
Human Rights – Right to respect for family life – Children taken into care and placed in community where leaders had previous convictions for sexual abuse – Courts granting contact with younger child only – Social services not explaining why children sent to community and subsequently delaying and limiting contact visits – Whether violation of right to respect for family life – Whether mother entitled to act on behalf of her children – European Convention on Human Rights, art 8.
On 9 September 1997, in the light of the former husband’s violence towards the mother and the two children and the fact that the elder son had allegedly been sexually abused by a social worker, the Florence Youth Court ordered the children’s placement at the ‘Il Forteto’ community, suspended the mother’s parental rights, and granted her contact to the younger son only. Although two of the leaders of ‘Il Forteto’had previous convictions for, inter alia, ill-treatment and sexual abuse, they were still employed as members of staff, and the mother objected to the children’s placement there. Following unsuccessful attempts by the mother to see her younger son, the court ordered that both she and the child should receive counselling preparatory to contact. Thereafter the court suspended two scheduled contact visits, but on 22 December 1998 it extended the counselling to the elder child and set a deadline by which contact visits with both children should have taken place. That deadline was missed, and it was not until 29 April 1999 that contact took place. After a second visit on 9 September, no further visits were organised, and social services subsequently suspended all contact, and no time-limit was set for the children remaining in care. The mother, who purported also to be acting on behalf of her children, complained to the European Court of Human Rights that, inter alia, art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been violated on account of the decision of the youth court to suspend all relations between her and her children and to place them in ‘Il Forteto’, and because she was unable to see her younger son. The respondent Italian Government raised a preliminary objection, inter alia, to the mother’s standing to act on behalf of the children.
Held – (1) Children could apply to the European Court of Human Rights even, or indeed, especially, if they were represented by a mother who was in conflict with the authorities and criticised their decisions and conduct as not being consistent with the
rights guaranteed by the Convention. Otherwise, in the event of a conflict between a child’s interests between a natural parent and the person appointed by the authorities to act as the child’s guardian, there was a danger that some of those interests would never be brought to the Court’s attention and that the child would be deprived of effective protection of his rights under the Convention. It followed that, even though the mother had been deprived of parental rights, her standing as the natural mother sufficed to afford her the necessary power to apply to the Court on the children’s behalf, too, in order to protect their interests.
(2) Article 8 of the Convention demanded that judicial decisions aimed in principle at facilitating visits between parents and their children so that they could re-establish relations with a view to family reunification were implemented in an effective and coherent manner. No logical purpose would be served in deciding that visits could take place if the manner in which it was implemented meant that de facto the child was irreversibly separated from his natural parent. Accordingly, the relevant authorities, in the instant case the youth court, had a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure that the latter’s conduct did not defeat the authorities’ decisions. In the circumstances of the present case, it was unacceptable that social services should have been able to alter the practical effect of judicial decisions establishing that contact would, in principle, take place, and the youth court had not conducted any critical analysis of the facts. Moreover, the prohibition of any contact between the mother and her elder son was not based on sufficiently valid reasons. It followed that the authorities failed to strike a fair balance between the interests of the children and the mother’s rights under art 8 of the Convention, and there had been a violation.
(3) Unless full and pertinent explanations were given by the authorities concerned, parents should not be forced, as they were in the instant case, merely to stand by while their children were entrusted into the care of a community whose leaders included people with serious previous convictions for ill-treatment and sexual abuse. The authorities had at no point explained to the mother why, despite the men’s convictions and having regard to the past sexual abuse of the elder child, sending the children to ‘Il Forteto’ did not pose a problem. Such a failure to communicate was not compatible with the duties incumbent on states to act fairly and to provide information when taking serious measures interfering in a sphere as delicate and sensitive as family life. Moreover, there was no valid justification for the failure to put a time-limit on the care order. Consequently, the authorities had failed to show the degree of prudence and vigilance required in such a delicate and sensitive situation, and had done so the detriment not just of the mother’s rights, but also of the superior interests of the children. Accordingly, the uninterrupted placement to date of the children at ‘Il Forteto’ did not satisfy the requirements of art 8 of the Convention.
Cases referred to in judgmentB v UK (1987) 10 EHRR 87, ECt HR.
Eriksson v Sweden (1989) 12 EHRR 183, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, ECt HR.
Johansen v Norway (1996) 23 EHRR 33, ECt HR.
Marckx v Belgium (1979) 2 EHRR 330, ECt HR.
Nielsen v Denmark (1988) 11 EHRR 175, ECt HR.
Norris v Ireland (1988) 13 EHRR 186, ECt HR.
Nuutinen v Finland (application no 32842/96) (27 June 2000, unreported), ECt HR.
Olsson v Sweden (no 1) (1988) 11 EHRR 259, ECt HR.
Olsson v Sweden (no 2) (1992) 17 EHRR 134, ECt HR.
Papamichalopoulos v Greece (1995) 21 EHRR 439, ECt HR.
Vogt v Germany (1995) 21 EHRR 205, ECt HR.
ComplaintOn 9 Demceber 1997 tthe mother, who was also acting on behalf of her two children, complained to the European Court of Human Rights alleging a violation of art 8 of the Convention for the Protection of Human Rights and Fundamantal Freedoms, on account of the decision of Florence Youth Court to suspend all relations with her and the children and to place them with ‘Il Forteto’, a community. In its report dated 2 December 1998 the European Commission of Human Rights expressed the opinion, inter alia, that there had been no violation of art 8 of the Convention as a result of the suspension of the mother’s parental rights or of the fact that the children had been taken into care (24 votes to 1); there had been no violation of art 8 as a result of the children being placed at ‘Il Forteto’ (13 votes to 12); there had been a violation of art 8 as a result of suspension of all contact between the mother and her children (21 votes to 4). The facts are set out in the judgment of the European Court of Human Rights.
13 July 2000.
THE EUROPEAN COURT OF HUMAN RIGHTS (GRAND CHAMBER)delivered the following judgment.
Procedure1. The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention), by the European Commission of Human Rights (the Commission), and by the Italian Government (the Government) on 4 December 1998 and 21 January 1999 respectively (art 5(4) of Protocol No 11 and former arts 47 and 48 of the Convention).
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aNote by the Registry. Protocol No 11 came into force on 1 November 1998
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2. The case originated in two applications (nos 39221/98 and 41963/98, which have been joined) against Italy. The first applicant, Mrs Dolorata Scozzari, a Belgian and Italian national currently living at Figline Valdarno, is also acting on behalf of her children, G, who was born in 1987 and has dual Belgian and Italian nationality, and M, who was born in 1994 and has Italian nationality. The second applicant, Mrs Carmela Giunta, is an Italian national, who was born in 1939 and lives in Brussels. Since the end of 1998 she has had a home in Italy also. She is the first applicant’s mother.
3. The first applicant lodged the first application with the Commission on 9 December 1997 under former art 25 of the Convention. Both applicants
subsequently lodged the second application with the Commission on 16 June 1998. The applications were joined on 8 July 1998. The first applicant is also acting on behalf of her children.
4. The first applicant alleged a violation of art 8 of the Convention on account of the decision of the Florence Youth Court to suspend all relations between her and her children and to place them with ‘Il Forteto’, a community, and of the fact that she was unable to see her younger son. The second applicant complained that no consideration had been given to the possibility of her being given the care of the children. The applicants also complained of violations of art 6(1) and art 14 of the Convention, on account of the delay in hearing their appeals and of allegedly discriminatory treatment. Lastly, the first applicant complained of a violation of art 3 of the Convention on account of allegedly inhuman treatment inflicted on the children in the community, and of art 2 of Protocol No 1 to the Convention on the ground that the arrangements made for the children’s schooling were, in her...
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