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Family Law in the European Court of Human Rights in 2017

Julia Queen, barrister of Coram Chambers, considers a selection of the cases heard by the European Court of Human Rights (‘the Court’) in 2017 which are of particular interest to family lawyers.

Julia Queen, barrister, Coram Chambers


Julia Queen, barrister, Coram Chambers

Contact between grandparents and their grandchildren: Beccarini and Ridolfi v Italy
(no.63190/16) [07 December 2017) [only available in French]

Grandparents had been caring for their two grandchildren who had psychological difficulties. The grandparents had repeatedly asked for help from social services. Social services started proceedings on the basis that the grandparents were unable to meet the specific needs of the children and removed the children from the grandparents' care.

During the course of proceedings, the grandparents wanted to have contact with the grandchildren. However, social services did not promote contact between the grandparents and the grandchildren, primarily because adoption was an outcome available to the court, but also because the mother's contact with the children was prioritised over contact with the grandparents. The Italian courts had even directed during proceedings that contact should take place between the grandparents and children, but this was never set up. The children were eventually placed in the mother's care, but no plan for contact between the children and grandparents was put in place before the end of the proceedings and due to hostility between the mother and grandparents, the mother refused to allow the grandparents contact. The grandparents brought a case to the European Court of Human Rights on the basis that it had been impossible to see their grandchildren during proceedings and therefore their Article 8 right to a family life had been breached.

The court reiterated the principle that the relationship between grandparents and grandchildren comes within the 'family life' envisaged by Article 8 ECHR (at 50). Whilst in a potential adoption case the court has to be conscious of protecting the children's interests, which can justify a limit on contact between the children and family members, in this particular case social services had not acted with the required level of diligence or made the necessary efforts to safeguard the family relationships.

The court concluded that there had been an 'almost complete rupture' of the relationship between the grandparents and the grandchildren (at 55). As social services had not taken 'adequate or sufficient steps' to preserve the relationship between the grandparents and grandchildren, their actions had resulted in a violation of Article 8 (at 59).

The grandparents were awarded 3000 EUR for emotional damage and 5000 EUR for legal costs (the majority of the legal costs for bringing the case to the ECtHR).

Right to a family life:  Paradiso and Campanelli v Italy (no.25358/12) [24 January 2017] (Grand Chamber)

An Italian couple (the applicants) entered into a gestational surrogacy agreement with a Russian clinic. A Russian woman acted as the surrogate mother. On the same day as the child was born, the surrogate mother gave written consent to allow the Italian couple to be registered as the child's parents. The Italian Consulate issued the necessary documents to enable the child to leave Moscow to go to Italy.

Within a month of arriving back in Italy, criminal proceedings were commenced against the applicants on the basis that they had forged documents to bring a foreign minor into the country. Under the same legal provision, adoption could therefore be authorised for the child, as the child was considered by the Italian courts to be an unaccompanied minor in the country. As a side note, DNA testing revealed that the child was not genetically related to the applicants. The applicants sought an explanation from the Russian clinic, which, after an internal inquiry, could not explain how the error had occurred.

During the adoption proceedings a psychological assessment of the child found that the applicants provided him with excellent care, that the applicants had developed a 'deep emotional bond' with the child (at 34) and that for the child, adoption would have 'devastating consequences' (at 34). However, in spite of this assessment the family court ordered that the child be removed from the applicants, taken into the care of social services and placed in a children's home. The child remained in this children's home for fifteen months and all contact between the applicants and the child was stopped. The child was eventually placed in a family with a view to being adopted.

This case is of particular note as it was referred up to the Grand Chamber following a lower Chamber judgment. The lower Chamber had found that the applicants' Article 8 right to a family life had been engaged and breached by the Italian authorities and the lower Chamber reiterated that removal of the child from the applicants had to be a matter of 'very last resort' (at 101).

In complete contrast, the Grand Chamber disagreed that the applicants' family life was engaged in this case at all. The Grand Chamber concluded that in opposition to the Chamber judgment, there was not a family life between the applicants and the child (see 157). The Grand Chamber relied upon the absence of any biological tie between the child and the applicants, the short duration of the relationship with the child and the uncertainty of the ties from a legal perspective, in contrast to the lower Chamber which had considered the applicants had 'acted as parents' towards the child (at 98).

However, the Grand Chamber did find that the facts of the case fell within the scope of the applicant's private lives, therefore engaging Article 8, as what was at issue was 'the right to respect for the applicants' decision to become parents' (at 163).

The Grand Chamber then turned to consider whether or not the interference by the Italian authorities in the applicants' Article 8 rights was justifiable. The conclusion (which was not unanimous: 11-6) was that there had been no breach of Article 8. The Italian authorities were found to have acted in an appropriate way, which was in accordance with the law, pursuing a legitimate aim and necessary in a democratic society. The Court reiterated that on ethically sensitive issues, such as adoption, medically assisted reproduction and surrogate motherhood, Member States enjoy a wide margin of appreciation. The Italian State had the exclusive competence to recognise a legal parent-child relationship with a view to protecting children and equally the competence not to recognise certain relationships. The reality was that the applicants had been unlawfully caring for a child who was not genetically related to them and the only way to bring the unlawful situation to an end was by removing the child from the applicants (see 215).

Adoption:  A.H. and Others v Russia (nos. 6033/13 and 22 other applications) [03 July 2017]

This application was brought by 45 US nationals on their own behalf and on behalf of 27 Russian children. The majority of the US applicants were in the later stages of a procedure to adopt the Russian children. Some of the US applicants had already met with the children and many of the children suffered from multiple serious health issues and required specialist medical care.

In 2012 the adoption procedure was abruptly stopped due to Russia passing a new law banning the adoption of Russian children by US nationals. This was prompted by the death in 2008 of Dima Yakolev, a Russian toddler who had been adopted by a US family, which had resulted in calls from some Russian organisations to restrict or end adoptions to the US. This new law restricting US adoption was criticised by numerous human rights organisations and journalists who argued that the law was politically motivated and particularly detrimental to the children's interests.

The applicants argued that the new Russian law breached their Article 14 rights read in conjunction with their Article 8 rights. All parties and the court agreed that in this case there was no 'family life' within the Article 8 definition between the applicants and the children. However, the relationship did come within the concept of 'private life', interpreted widely by the Court as the right to establish and develop relationships with other human beings (at 379, 383, and as per Niemietz v Germany no. 13710/88).

The Court also found that Article 14 (Prohibition of Discrimination) was violated as there had clearly been a difference in the treatment of US nationals and non-US nationals who were seeking to adopt Russian children. In relation to the application under Article 14 brought on behalf of the children, the Court found that there had been no discrimination against the children, as the discrimination suffered had been against the prospective parents due to their US nationality and not towards the children (see 386).

The Court ordered Russia to pay 3000 EUR to each set of parents and 600 USD each towards legal costs.

Recognition of paternity: Silva and Mondim Correia v Portugal (nos. 72105/14 and 20415/15) [03 January 2018]

Applications were heard from two Portuguese nationals aged 73 and 47 respectively. Both men had been born out of wedlock and were seeking a recognition of paternity. Under the Portuguese Civil Code, the right of a citizen to seek paternity recognition by judicial decision lapses ten years after the person has attained the age of majority. The Code also provided for a three year extension to the time limit under certain circumstances. The applicants considered that the existence of a time limit at all for the judicial recognition of paternity constituted an unacceptable interference with their right to a private life under Article 8 ECHR.

The Portuguese courts considered that the time limit on seeking recognition of paternity was justified as it was intended to avoid 'the unjustified prolongation of an indeterminate situation as regards the legal establishment of the parental relationship' (at 34). Interestingly, the ruling against the applicants in the Portuguese courts had been accompanied by six dissenting opinions, which questioned whether or not a limitation on establishing paternity could be justified.

Neither the applicants nor Italy disputed that Article 8 was applicable. The Court agreed, noting that paternity proceedings have been found on numerous occasions to fall within the scope of Article 8 (at 51, see Backlund v Finland, no.36498/05 and Mikuli? v Croatia, no.53176/99).

The Court recognised that Member States enjoy a certain margin of appreciation and, considering Phinikaridou v Cyprus (no.23890/02), noted that there was no uniform approach to legislation in Member States on judicial recognition of paternity (at 55). Whilst the majority of countries did not have a time limit, time limits in other countries ranged from one to thirty years (at 51). The establishment of a time limit per se was not incompatible with the ECHR (see 57).

In contrast to other cases in which the applicants had not known the biological father's identity (Phinikaridou v Cyprus and Backlund v Finland), in this case the applicants had known the identity of their biological fathers but not made applications within the limited time available. The Court found that the applicants had 'shown an unjustifiable lack of diligence in instituting paternity proceedings' (at 68).

Consequently, when bearing in mind the applicants' 'lack of diligence' and the margin of appreciation to Member States in setting time limits on applications to recognise paternity, the Court found there had been no violation of Article 8.

Return from foster placement: Barnea and Caldararu v Italy (no.37931/15) [22 September 2017] [only available in French]

The applicants were family members of 'C', a girl who had been removed from their care and had lived in a foster placement for a seven-year period from June 2009 to November 2016. The Italian Court of Appeal ordered in October 2012 that C should be returned to her family following a transition period, but the Italian social services never initiated this transition from foster care back to her family. Aside from the Italian authorities not returning C to the applicants, the applicants argued that from the moment of C's removal the Italian authorities had not offered them any way of proving that they were capable of parenting C. They argued that the Italian authorities had focused on prolonging the foster placement, with a view to adoption, and had therefore restricted the applicants' contact with C. The Italian authorities denied that the link between the applicants and the child had ever been fully cut and, to the contrary, that the authorities had taken steps to preserve the family link as some contact had taken place between C and the applicants over the seven-year period.

The Court rejected Italy's argument that as C had been returned to the applicants, the applicants could no longer be considered 'victims' of a human rights violation.

The Court considered that for a parent and child, being together was a fundamental element of family life (at 63, see Kutzner v Germany no.46544/99). Such a separation can only be justified as a last resort (at 64, see Neulinger and Shuruk v Switzerland (Grand Chamber) no.41615/07). Whilst the applicants' living conditions were 'precarious', the Court found that the Italian authorities should have taken real steps to permit the child to live with the applicants, as the role of the local authority is precisely to help persons in difficulty and to advise them as to overcoming those difficulties (at 72). In this case, where the links between the applicants and the child were particularly strong, the parents had not been given the opportunity to prove their parenting abilities. The Court concluded that there had not been any exceptional circumstances that warranted the child being taken into care.

The family were awarded 40000 EUR and 15175 EUR in legal costs.