CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 2 mars 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sBD1BE8CC { width:33.89pt; display:inline-block } .s9AA0C774 { width:151.77pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 42590/21 M.P.A. against Spain   The European Court of Human Rights (Fifth Section), sitting on 2 March 2023 as a Committee composed of:   Carlo Ranzoni , President ,   Lado Chanturia,   María Elósegui , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   42590/21) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 August 2021 by a [Spanish] national, Ms M.P.A., who was born in 1984 and lives in Torres (“the applicant”) and was represented by Mr S. Lopez Poyatos, a lawyer practising in Jaen; the decision to give priority to the application (Rule 41 of the Rules of Court); the decision to grant the applicant anonymity of its own motion under Rule   47 § 4 of the Rules of Court; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the entry by police and social services into the applicant’s home, with a judicial order but without the consent or previous notification of the applicant, in order to urgently enforce measures for the protection of her three-month old son (who had been the subject of a declaration of abandonment). The applicant complained under Article 8 of the Convention of a violation of her right to family life and of a violation of the right to respect for her home, and under Article 3 of the Convention of having suffered inhuman or degrading treatment during the entry into her home to remove the child. 2 .     An anonymous phone call informed the social services on 6 August 2019 that the applicant and her partner used drugs when their child was present, that they were not in a position to take care of him, that the applicant did not work, and that she had recently been referred to a hospital as a potential victim of sexual abuse and forced intoxication by her partner – the child’s father. The Social Services corroborated the data with several pieces of evidence: (i) medical reports which stated that on 26 and 27 July 2019 the applicant had reported having suspicions that she was being administered drugs by her partner (the child’s father) and was being sexually abused by him and possibly other persons while unconscious ˗ statements which she later denied before the court; (ii) positive drug tests (indicating the presence of cocaine) from both the applicant and her partner from 27 July 2019 and 2   August 2019, respectively; (iii) statements by the applicant herself, the applicant’s partner, a non-governmental organisation (NGO), the applicant’s parents and her aunt, and the witness testimonies of several social workers; (iv) the police and criminal record of the applicant’s partner, which showed several detentions and three previous convictions for making threats or showing resistance or disobedience to the public authorities, and ill-treatment within the family unit (violence against women); (v) police records, and (vi) their own records concerning the family unit. A request was made for the Family Court to urgently declare the child abandoned. 3.     On 12 August 2019 the Family Court declared the baby abandoned and ordered his placement in foster care. The court held that the parents’ consumption of drugs, including in the presence of the child, and the alleged violence of the applicant’s partner towards the applicant prevented them from taking due care of their child. It also took into account the fact that the applicant had refused the help that had been offered to her in respect of social services and rehabilitation from drug consumption. It considered that the child was in a clear situation of abandonment and that his physical and psychological health were at risk. 4 .     The Family Court, following the request by the administrative authorities, ordered that those measures be executed urgently by the social services by entering the applicant’s home and taking the baby into their care without a prior hearing of the parents. Its order stated that the parents had been heard in the administrative proceedings which led to the declaration of abandonment of the child, and that the fact that the parents would not be heard prior to the execution of the measure was justified by the risk that they could flee. It added that the measure was proportionate and necessary in the light of the circumstances at hand, and that there were no less intrusive means to find out where the baby was and ensure his safety. 5.     On 16 August 2019 a delegation from the social services, escorted by members of the police, went to the applicant’s home without any prior notification and requested the child’s father to hand over the then three-month-old baby. The father led them to the home of the child’s grandmother and handed over the child without resistance. The applicant subsequently appealed against the decision to enter their home and later against the confirmation of the declaration of abandonment and the placement of her child into foster care. 6.     The Court was informed by the Government that on 26 October 2020, that is, before the application was lodged, the child had been reunited with his parents following a new decision by the Family Court. 7.     The applicant complained of a violation of her right to respect for her family life and home under Article 8 of the Convention, and of her right not to be subjected to inhuman or degrading treatment under Article 3 of the Convention. THE COURT’S ASSESSMENT Alleged violations of Article 8 of the Convention As regards the right to respect for the applicant’s family life 8.     The general principles concerning the mutual enjoyment by parent and child of each other’s company as a fundamental element of family life within the meaning of Article 8 of the Convention have been summarised in Monory   v.   Romania and Hungary (no. 71099/01, § 70, 5 April 2005); Zorica   Jovanović v. Serbia (no. 21794/08, § 68, ECHR 2013); Kutzner v.   Germany (no.   46544/99, § 58, ECHR 2002-I); Elsholz v. Germany [GC] (no. 25735/94, § 43, ECHR 2000-VIII); and K. and T. v. Finland [GC] (no.   25702/94, § 151, ECHR 2001-VII). Article 8 of the Convention requires that the domestic authorities strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see the general principles in Abdi Ibrahim v. Norway [GC], no. 15379/16, §   145, 10 December 2021). 9.     The child’s interests dictate that the child’s ties with the family may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see a review of the relevant case-law in Jansen v.   Norway , no.   2822/16, §§ 88-93, 6 September 2018). 10.     The Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were “sufficient” for the purposes of Article   8   §   2   without at the same time determining whether the decision ‑ making process, seen as a whole, was fair (see   Sahin v. Germany [GC], no. 30943/96, § 68, ECHR 2003-VIII, and   Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII (extracts)). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process must ensure due respect for the interests safeguarded by that Article. The parents ought to be sufficiently involved in this process seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see Iosub Caras v. Romania , no. 7198/04, § 41, 27 July 2006, and the case-law cited therein). The domestic courts must conduct an in ‑ depth examination of the family situation and of a series of factors before making a balanced and reasonable assessment, with a constant concern for determining what would be the best solution for the child (see Petrov and X v. Russia , no. 23608/16, § 98, 23 October 2018, and the case-law cited therein). 11.     It must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. The margin of appreciation to be accorded to them will vary in accordance with the nature of the issues and the importance of the interests at stake (see Petrov and X v. Russia , no.   23608/16, §§ 98-102, 23 October 2018). The Court’s task is not to substitute itself for the domestic authorities, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their responsibilities regarding child custody and access issues (see Sahin , cited above, § 64; Sommerfeld , cited above, § 62; C. v. Finland , no.   18249/02, §   52, 9 May 2006; and Z.J. v. Lithuania , no. 60092/12, § 96, 29 April 2014). 12.     In the case at hand, it is undisputed that the measures by which the applicant’s son was taken into care by the local authority disclosed an interference with the applicant’s right to respect for her family life under Article 8 § 1 of the Convention. The Court has therefore to examine whether this interference complied with the requirements of the second paragraph of Article   8, as set out in turn below. “In accordance with the law”: the applicant disputed that the removal of the child was lawful, as it had been based on a wrongful assessment of the need for urgent measures to execute the removal without prior notification of the parents or any involvement on their part in the decision-making process. The Court notes that the social services had made a request to the Family Court based on information in their possession which raised serious concerns about the child’s well-being. That court had jurisdiction to issue the order (section 778 ter (3) of the Civil Procedure Act). The urgent removal was consequently “in accordance with the law”. “Legitimate aim”: the removal of the child and subsequent measures were clearly aimed at protecting his “rights and freedoms”. Accordingly, they pursued legitimate aims within the meaning of paragraph 2 of Article 8. “Necessary in a democratic society”: the Court considers that the decision to execute the measure of placing the child in foster care without a prior hearing was supported by relevant and sufficient reasons; namely, the strong suspicion that the applicant was often under the effect of narcotics (even if it was the case that she had been forced to take them by her partner), that she was suffering sexual abuse by the father of the child, and that she had no occupation or income, all of which prevented her from taking due care of the baby. The evidence came not only from an anonymous call, but was corroborated by interviews with the applicant’s parents and in-laws, by the applicant herself, social services, medical reports, a police report and the judicial proceedings against the applicant’s partner (which have been provisionally discontinued) (see paragraph 2 above). The domestic court found that the interests of the child required it to act quickly in this case, and that hearing the parents could have hindered the effectiveness of the measure, as there were concerns that they could have hidden or fled with the child and that he might not have been duly taken care of in the meantime (see   paragraph   4 above). 13.     The Court notes that the applicant was not initially heard because such a hearing is not provided for in the domestic framework for the urgent procedure, but that she later had the opportunity to present her arguments and allegations in the subsequent procedure to confirm the declaration of abandonment of the child and the foster care measure. The Court finds therefore that the use of the urgent procedure to take the baby into care may be regarded as a proportionate measure and “necessary in a democratic society” for protecting the baby’s health and rights (see also E.M. and Others v.   Norway , no.   53471/17, §§ 55-62, 20 January 2022). 14.     Moreover, the social services and the Family Court monitored both the baby’s development in foster care and the applicant and her partner’s evolving capability of providing a stable and secure environment for their baby. In this regard, it is relevant that when the expert reports and medical reports coincided in concluding that the circumstances had changed, the judicial authority ordered that the child be reunited with his parents. In the meantime, contact between the applicant and the child had been limited but some access had been granted (compare Haddad v. Spain , no. 16572/17, §§   64-72, 18 June 2019; Strand Lobben and Others v. Norway [GC], no.   37283/13, §§ 220-25, 10 September 2019; and Omorefe v. Spain , no.   69339/16, §§ 57-59, 23 June 2020). 15.     The Court therefore concludes that there were no shortcomings in the urgent care order proceedings, as there is no basis on which to find that the decision-making process was unfair or that the decisions taken were unjustified in relation to the child’s best interests, and the domestic authorities paid considerable attention to maintaining the parent-child relationship. This complaint is therefore inadmissible as being manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention. As regards the right to respect for the applicant’s home 16.     Concerning the applicant’s right to respect for her home, the Court notes that the parties disagreed on whether there had been an interference at all. The parties did not dispute that the police had gone to the applicant’s home to remove the child, pursuant to a judicial order. According to the applicant, the police accompanying the social services had broken into their estate and forcibly taken the child; according to the Government, the applicant’s partner had been at home when the delegation entered the property, he had informed them that the child was with his (the child’s) grandmother, had accompanied them to that address (which the delegation could not enter as they did not have a court order) and had handed over the baby without any violence or resistance. 17.     Both parties submitted the signed record drafted by the delegation from social services and the police. The record was signed by all the public servants present, although not by the applicant or her partner. The record reflects the Government’s statement of facts, which appears to be a consistent and accurate version of events. In the light of the above, the Court concludes that there has been no interference with the applicant’s right to respect for her home under Article 8 of the Convention. As a result, this complaint is also inadmissible as being manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. Alleged violation of Article 3 of the Convention 18.   The applicant also raised a complaint under Article 3 of the Convention on the grounds of the alleged suffering which she had endured because of the way in which her son had been taken away from her. Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that this complaint does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention, nor does it disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article   35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 23 March 2023.   Martina Keller   Carlo Ranzoni   Deputy Registrar   President