CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 février 2021

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(”the first applicant”) and Ms A.V.R. (“the second applicant”), are two Bulgarian nationals, who were born in 1983 and 2015 respectively and live in Sofia. They are represented before the Court by Ms N. Dobreva, a lawyer practising in Sofia. The first applicant is the mother of the second applicant. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. Background The first applicant suffers from an opioid dependence disorder. She is an orphan raised by her grandmother who died before the second applicant was born. The first applicant had been taking heroin until she learned that she was pregnant, following which she signed up for methadone treatment. Taking into care of the second applicant in a social-care institution For the first four months after the birth of her child in December 2015, the first applicant took care of the baby, living with her in different locations while looking for a place to rent. On 13 April 2016 she left the baby with the owner of a hostel, where she was staying with the baby for a few days, in order to collect nappies and milk for her from a centre for social assistance (a foundation offering support to parents and children in need). The hostel’s owner reported her to the social services who, aided by the police, placed the baby in the centre for social assistance for ten days, as a protection measure under the Child Protection Act (“the CPA”). Before the placement, the social services spoke to staff from that centre who confirmed that the first applicant had been visiting them and that they had consulted her about finding alternative care for her daughter. On 14 April 2016, the social services drew up a report in which they noted that the mother was receiving social aid and childcare benefits and that she had enrolled in a personal-carer qualification course at the National Employment Agency. According to the report, the applicants’ doctor had stated that the mother was in need of support; however, despite her difficulties, she regularly attended all scheduled consultations, the baby developed well and had all the necessary vaccines for her age. Thereafter, between 20 April and 20 May 2016, the baby lived with a cousin of the first applicant, who had agreed to care for her temporarily. On the latter date the baby was placed in a social care institution, until the child turned three, on the basis of an order issued by the local social assistance director. The order of 20 May 2016 was an administrative measure for child protection, taken on the basis of section 27(1) of the CPA (see the Relevant domestic law section below). The Sofia District Court confirmed that order on 13 December 2016. The first applicant visited her daughter in that institution until November 2016 when she was admitted for treatment in a methadone programme in a mental health centre in another city. The treatment, that the first applicant followed as an outpatient, lasted until May 2019. Placement of the second applicant in a foster family In January 2018 a professional foster parent expressed an interest in taking care of the second applicant, following which the social services started a procedure for accommodating the child in that family. Social workers drew up a report on 9 February 2018, noting that the child had regularly communicated with her mother until June 2016, after which the mother’s visits had been less frequent. The first applicant had expressed a desire to take back care of the child in a family environment, but had not cooperated with the child-protection authorities towards that end. She was not employed, had no permanent income, frequently moved her residence and was enrolled in a methadone programme. The report concluded that social work was needed with the mother in order to improve her parental skills. On 9 February 2018, the director for social assistance issued an order placing the second applicant in the foster family. The Sofia District Court confirmed that placement in August 2018. In doing so it noted that it had been established that there was no change in the circumstances which had led to the child’s placement in a foster family as an administrative measure. The bond between the child and her family was broken and the child’s mother had not expressed a wish to care for the child in a family environment. Having abandoned the child immediately after her birth, the mother had not even sought contact with the child or information about her after 2017. No relatives or close people who were willing to and capable of caring for the child had been identified. Given that the child was in need of care and attention, it had to be concluded that the child needed protection. There was an approved foster family which could take care of the child. The grounds under the CPA for placing the child in a foster family were present, given that the child’s mother constantly omitted to take care of the child and that the father was unknown. Bearing in mind the interests of the child, the court found that the child should be placed in the said foster family (named explicitly, with indication of the address) until she turned five, or until such time as a lawful ground for modification of the measure for protection arose. The judgment stated that it was subject to immediate enforcement and could be appealed within a seven-day period from its service on the parties. It is not clear how the first applicant was informed about that placement; the court deciding on it noted that she had been summoned to the hearing but had not turned up. In any event, according to the first applicant, the judgment of August 2018 was not served on her, she was not given the foster family’s address, nor was a regime for contact with her child set. Social services visit to the first applicant In the meantime, in late February 2018, after the placement order for the child had been issued, the social services visited the first applicant at the address where she lived at the time. They found that she lived with a partner, had bought a cot for the baby along with other belongings, expressed a willingness to live with her daughter and stated that her partner was likewise prepared to do so and even to legally recognise the child. During that visit the authorities informed the first applicant about her right to use the social services assessment of her parental capacity but did not speak to the partner. Placement of the second applicant in the Register for adoption On an unspecified date thereafter the foster parents expressed an interest in adopting the second applicant. On 3 September 2019 the social services drew up another report, noting that the first applicant had not contacted them for an assessment of her parental capacity or to inquire about her daughter. She was not employed, had no permanent income, frequently moved her residence and was enrolled in a methadone programme. According to the latest information, she had left the country. The report ended with a recommendation that the child be entered in the Register for adoption as that was the only way to provide her with lasting care in a family environment. (a)    Administrative placement On 10 September 2019, the director for social assistance issued an order for entering the second applicant in the Register for adoption. The order was based on Articles 83 § 2 and 84 §§ 2 and 6 of the Family Code (see the Relevant domestic law section below). The order stated that the first applicant had lastingly lost interest in her child, given that since 2016 she had not asked to take over the care for her. She had likewise not requested to be provided with assistance by social services, despite having been informed about such a possibility. The mother was not in a position to cater for the basic needs of her daughter, she had no permanent address, no financial stability or a supporting environment and there were no relatives or close people who were willing or able to care for the child. (b)    Judicial confirmation of the placement The first applicant brought judicial review proceedings against that order. (i)       At first instance (α)      The first applicant’s submissions The first applicant argued before the Sofia City Administrative Court (“the SCAC”) that Article 84 (2) of the Family Code did not apply when the parent had valid reasons for not seeking to collect his or her child within six months from the child’s placement in a foster family. She pointed out that she suffered from a chronic disability (syndrome of opioid dependency) which, while regressing at that point in time following her completion of a methadone programme, acutely manifested itself between February and August 2018. She had been fighting to overcome her withdrawal symptoms and had been attending a therapy with a psychologist. There was evidence that she did not want to lose connection with her daughter. The ultimate purpose of the CPA was the bringing together of the biological parent and the child, not the adoption. When a living biological parent was making efforts to increase her parental capacity, it was not in the child’ interest to sever definitively links with that parent. The order of the director for social assistance was contrary to two basic principles of the CPA, namely the temporary character of the limitation measures and the obligation to provide support for the family. The order for the child’s adoption was also in breach of Article 8 of the Convention (right to respect for family life) as interpreted by the Court in Strand Loben and Others v.   Norway ([GC], no. 37283/13, 10 September 2019). The core of the institute of adoption was the absence of realistic prospects for reintegrating the biological parent into society and for his or her reunion with the child. It was an absolute obligation of the administration to examine whether such prospects existed and to explain why they did not exist before proceeding with ordering the child’s adoption. However, the administration had never assessed the first applicant’s parental capacity. Similarly, the social services had not supported her, had not engaged in preventive work aimed at avoiding the child’s abandonment, and had not taught her how to take care of the child so that the child’s return in her family could be accelerated. The first applicant pointed out that her opioid dependency was a key factor in the case. Her dependency was a disability which, under the national law, was considered to lead to decreased capacity to work. (β)       The court’s findings On 9 December 2019, the SCAC confirmed the order for entering the second applicant in the Register for adoption. The court noted that Article   93 of the Family Code (see the Relevant domestic law section below) contained an exhaustive enumeration of the conditions in which adoption without the consent of the biological parents was acceptable. Article 84 § 2 of the Family Code provided an obligation for the social assistance authorities to enter the child in the Register for adoption where the child had been placed in a foster family, the biological parent had not requested an end to that placement without valid reasons for six months and it was in the child’s interest to be placed for adoption. Between November 2016 and May 2019 the mother had been undergoing treatment with methadone and the centre which had treated her certified that she had been suffering from psychological and behavioural disturbances as a result of the taking of opioids. There was no evidence, however, whether the treatment had any success. Further, more than six months had passed since she had ended her treatment; consequently, there no longer existed valid reasons for her not requesting an end to the measures of child protection. The first applicant had not shown that she had been making efforts to enhance her parental capacity. On the contrary, the evidence pointed to the conclusion that she was not in a position to permanently care for her child, to raise her and educate her. The order for entry of the child in the Register for adoption corresponded to the fundamental principle of the CPA, namely to ensure the child’s best interest. In the instant case that meant that it was in the child’s interest to have a family and a home, after almost four years spent in different institutions. The child’s adoption at an early age would beyond doubt facilitate her rapid and problem-free adaptation to the new family environment. (ii)     At last instance (α)      The first applicant’s submissions The first applicant appealed against the SCAC judgment of 9 December 2019. She argued that the lower court had wrongly determined the object of the proceedings. The correct object was the alleged unlawfulness of the order for entry of the child into the Register for adoption, notably in view of the omissions and breaches by the administrative body in the process for issuing that order. The object of the case was not an assessment of the parental capacity of the mother, neither was it the child’s placement back in her biological family environment. Those were two different proceedings, but the lower court had carried out the latter instead of the former. Instead of analysing the conduct of the administrative body, the court had analysed the parental capacity of the mother. As a result, the court’s reasoning was missing relevant and important elements, which the first applicant had underlined. Those were that the child’s placement outside the family had to have a temporary character (section 3 of the CPA – see the Relevant domestic law section below) and that the authorities were obliged to provide assistance to the biological parent if the latter had a low parental capacity (section 23(1)(2)(4)and(5) of the CPA and section 40c of the Regulations for the application of the Social Assistance Act). The first applicant then reiterated the rest of the points she had made before the first-instance court. Finally, she asked the court to repeal the lower court’s judgment and to rule on the merits by quashing the order in question as unlawful. (β)       The court’s findings In a final judgment judgement of 23 June 2020, the Supreme Administrative Court reiterated the relevant provisions of the Family Code which applied in the present case, namely Articles 84 and 93, and the established facts concerning the history of placements of the second applicant since her birth. It then in essence restated the lower court’s findings and concluded that, as there were no grounds for repealing the lower court’s judgment, the administrative order for the second applicant’s entry into the Register for adoption had to stand. Relevant domestic law The Child Protection Act (“the CPA”) Under section 3 of the CPA, children’s protection is based, among other things, on the principles of temporary character of any protection measure and of support to the family in that context. Section 4 of the CPA lists the different types of protection available under the CPA, namely: assistance, support and provision of various social facilities to the family; placement of the child with relatives or close people; adoption; placement in a foster family; provision of social and integrated health-social services in a social-care institution; police protection; specialised protection in public places; informing parents and children of their respective rights and obligations; undertaking preventive measures for the child’s safety and protection; providing state legal aid; undertaking of special measures for protection of children with disabilities; undertaking of temporary measures for protection under the Hague Convention of 1996. The assistance, support and various social facilities included in Article 4 of the CPA can comprise, among other things: pedagogical, psychological and legal assistance to parents or child carers; direction towards relevant social facilities available in society; consulting and assistance with questions related to social assistance and services; work with children and families aimed at prevention of the abandonment of children; financial assistance in the context of preventing abandonment. The director for social assistance issues an order, for the placement of a child for care in a foster family, under section 25(1)(3) of the CPA which provides that a child can be placed for care outside the family if his or her parents are in a lasting inability/impossibility to care for the child. According to section 24 of the CPA, the measures for child protection are taken by the directorate for social assistance upon, among others, its own initiative. According to section 26(1) of the CPA, the district civil court authorises a child’s placement outside the family. Before such a court decision is taken, the directorate for social assistance places temporarily the child outside the family, as an administrative measure for protection. According to Section 26(2) of the CPA, the directorate for social assistance, the prosecutor or the parents can request the court to place the child for care outside the family. According to section 26(3) of the CPA, when the directorate for social assistance asks the court for such a placement, it has to accompany the request with: (a) a report drafted by its staff; (b) a declaration by the child’s relatives (if the child is to be placed with them) that they accept the placement, which has to be accompanied by a verification by the social services that they can offer acceptable conditions for care; and (c) an extract from the Register about the foster families available to care for the child. Section 27(1) of the CPA provides for temporary placement as an administrative measure. In particular the directorate issues an order for the placement of a child for care outside the family (with relatives of the child, in a foster family, or in a social-care institution). Under section 27(2) of the CPA, the directorate has to seek the court’s confirmation of that order within a month from its issuing. Family Code According to Article 84 § 2 of the Family Code, in cases where a child has been placed for care outside the family, following an administrative procedure under the CPA, and the parent has not requested an end to the placement or a change in the protection measure, without having a valid reason for that, the local directorate for social assistance informs the central directorate for social assistance with a view to placing the child in the Register for children available for adoption, if that is in the child’s interests. Under Article 84 § 6 of the Family Code, the entry, or refusal for entry of a child into the Register of children available for adoption, is done by order of the director of the regional directorate for social assistance. The order is subject to review under the Code of Administrative Procedure. Article 93 § 1 of the Family Code provides that adoption without the consent of a child’s biological parents is allowed where the parents constantly do not take care of the child, do not pay alimony, or bring him or her up in a manner that poses a danger to the child’s development. Article   93 § 2 provides an additional possibility for such an adoption, namely where the child has been placed outside the family and the parent has not sought to end that placement within six months of its beginning, without having a valid reason for that omission. Entry into the Register for full adoption An Ordinance by the Minister for Labour and Social Policy of 2010 (“the 2010 Ordinance”) details the conditions and procedure for entry into the Register for full adoption. More specifically, the entry is carried out while guaranteeing protection of the child’s interests and his or her fundamental rights and in line with Article 21 of the United Nations Convention on the Rights of the Child. The entry into the Register is ensured by the Agency for Social Assistance. The directorate for social assistance authorises with an order the civil officers who carry out the entry into the Register. A separate file is kept for every child. Every change in the circumstances is entered into the Register’s file. The entry concerning each child registered as available for adoption comprises information about: personal identification of the child; the child’s social status and his or her health, medical checks carried out and his or her special needs, if any; the existence of the parents’ consent to the child’s full adoption; the existence of circumstances described in Article 84 §§ 1 to 5 of the Family Code; personal identification of the child’s parents, including information about their health; mention of the specialised institutions, foster families or other people where the child has been cared for and the reasons for the child’s placement there; and other important circumstances of relevance for the adoption. Under section 11 of this Ordinance, in cases under Article 84 § 2 of the Family Code, the procedure for entry into the Register starts with a written communication by the directorate for social assistance (within the district where the child lives) to the respective regional directorate for social assistance. Such a communication has to be accompanied by a report by the social services and the documents evidencing the existence of the circumstances which are grounds for entry under this procedure. The report of the social services referred to in the preceding paragraph has to contain information about the child (among other things, whether s/he had special needs or had experienced violence of abuse), about the child’s biological family (among other things, whether either parent had a history of substance-use disorder) and the reasons for which the child was abandoned and there was a need for his or her adoption. Under section 13 of the 2010 Ordinance, the director of the regional directorate for social assistance can order the deletion of the entry into the Register of a child when, among other things, the child is reintegrated into his or her biological family. In an interpretative decision of 2016 (тълк. реш. № 1 от 14.11.2016 г. на ВКС по т. д. № 1/2015 г., ОСГК), the Supreme Court of Cassation clarified that the biological parent’s consent is not required for full adoption if the parent has not requested an end to the care measure (placement outside the family); that parent’s position is not taken into account by the court, nor can s/he appeal against the court’s decision on adoption. Adoption in this case is the final measure of protection and it follows from the parent’s conduct, namely the fact that s/he has abandoned the child and that placement outside the family is supposed to be a temporary measure for protection of the child. Regulations for the application of the Social Assistance Act (“the SAA Regulations”) Section 40c of the SAA Regulations, as in force at the relevant time, provided that a multidisciplinary team set up by the social-services provider draws up, within twenty days from the moment the individual is entered into the system, an individual assessment of the needs for support and a plan for the provision of support. Such a plan comprises the objective sought, the type of actions to be undertaken, recommendations for support measures in a family environment, the expected results and the envisaged time-frame. The plan can also include recommendations for support measures of social, medical, labour, education or other type, depending on the concrete needs of the individuals concerned. Relevant international materials Under the reporting system of the Revised European Social Charter (“the Charter”), ratified by Bulgaria on 7 June 2000 specifically accepting the obligation under the provision below, the European Committee of Social Rights, which decides whether national situations comply with the Charter, made the following statements when addressing questions to States parties to the Charter for Conclusions 2021: “Part I – 14. RESC Everyone has the right to benefit from social welfare services. ... The provision of social welfare services concerns everybody who find themselves in a situation of dependency, in particular the vulnerable groups and individuals who have a social problem. Social services must therefore be available to all categories of the population who are likely to need them. The Committee has identified the following groups: children, the elderly, people with disabilities, young people in difficulty or in conflict with the law, minorities (migrants, Roma, refugees, etc.), the homeless, persons suffering from substance use disorders, women victims of violence and persons in conflict with the law, including those deprived of their liberty and former detainees. This is not, however an exhaustive enumeration of persons entitled to access and benefit from social welfare services. The State has an obligation to take every appropriate measure to ensure that no one is left behind. Therefore it is required to implement apposite outreach arrangements. Meeting this obligation will often require proactive service-oriented action, with the competent authorities taking the initiative rather than merely responding to applications and requests. It should be recalled that fundamental rights are mirrored by fundamental obligations for the duty bearers.” Bulgaria ratified the United Nations (UN) Convention on the Rights of Child on 3 June 1991. In its Concluding Observations, of 21 November 2016, on the combined third to fifth periodic reports of Bulgaria, the UN Committee on the Rights of the Child, the body of independent experts that monitors implementation of that Convention by its State parties, noted as follows: "Children deprived of a family environment 34. While the Committee welcomes the progress made through the State party’s deinstitutionalization process in considerably reducing the number of children living in institutional care and increasing the number of children entering family-based care, it remains seriously concerned that: (a) The number of children, including children up to 3 years of age, placed in institutional care is still significant, with the risk of family separation and institutionalization remaining high for children from the most disadvantaged groups; (b) Lack of support and inadequate training for social workers and staff in family ‑ type placement centres, along with gaps in the child protection system, has led to the separation of children from their families without proper assessment and planning and with the risk of reinstitutionalisation remaining high; ... (d) Family court judges tend to choose placement of the child in institutional care rather than prioritise support to the original family to keep their children; 35. ... the Committee emphasizes that financial and material poverty – or conditions directly and uniquely attributable to such poverty – should never be the sole justification for removing a child from parental care or for receiving a child into alternative care or for preventing a child’s social reintegration. In this regard the Committee recommends that the State party: ... (c) Ensure that institutionalisation is used only in the short term, including by providing information to expectant parents and health-care workers who serve new parents, on the rights and dignity of children with disabilities; ... (f) Support and monitor regular and appropriate contact between child and his or her family, provided that it is consistent with the child’s best interests;" Bulgaria ratified the UN Convention on the Rights of Persons with Disabilities on 22 March 2012. In its General Comment No. 6 (2018) on equality and non-discrimination, adopted on 26 April 2018, the UN Committee on the Rights of Persons with Disabilities, the body of independent experts which monitors implementation of that Convention by the State parties, stated as follows: "61. Persons with disabilities often face discrimination in the exercise of their ... parental and family rights owing to discriminatory laws and policies, and administrative measures. Parents with disabilities are frequently seen as inadequate or unable to take care of their children. Separation of a child from his or her parents based on the disability of the child or parents or both is discrimination and in violation of article 23. 62 ..... States must ensure that parents with disabilities ... have the necessary support in the community to care for their children." In its Concluding Observations, adopted on 22 October 2018, on the initial report of Bulgaria, the UN Committee on the Rights of Persons with Disabilities stated as follows: "10. The Committee recommends that the State party undertake a review of its legislation with the aim of bringing it into line with the human rights model of disability. ... 17. The Committee is concerned about: ... (b) The lack of mainstreaming of the disability perspective in gender legislation and policies, and the lack of mainstreaming of the gender perspective in the disability specific policies and legislation, including in the action plan for implementation of the Convention;" A European Guide, called “Health and Social Responses to Drug Problems”, adopted in 2017 by the European Monitoring Centre for Drugs and Drug Addictions, a European Union agency, provides as follows: “3.2. Women with drug problems ... Because of the high levels of stigma and trauma experienced by drug-using women, services need to be welcoming, non-judgmental and supportive. They need to be physically and emotionally safe for women and to take a trauma-informed approach. They need to be holistic and comprehensive in order to address the multiple issues that women face. ... Providing services to pregnant and parenting women can benefit both mother and child, improving parenting skills and having a positive impact on child development, as highlighted in the UNODC’s International standards on drug use prevention. ... Services for pregnant and parenting women who use drugs need to deal with a wide range of issues besides drug use. These include obstetric and gynaecological care, infectious diseases, mental health, and personal and social welfare. The services also need to address parenting issues, including women’s concerns that their children may be taken away, and provide childcare or child-friendly accommodation.” The International Guidelines on Human Rights and Drug Policy (“the Guidelines”) [1] provide: “III. OBLIGATIONS ARISING FROM THE HUMAN RIGHTS OF PARTICULAR GROUPS 1. Children ... 1.3 Protection in the context of parental drug dependence Every child has the right to such care and protection as is necessary for their well ‑ being, including where the child’s parents use drugs or are drug dependent. In accordance with this right, States shall: i. Ensure that the best interests of the child are a primary consideration in decisions regarding their care, including in the context of parental drug dependence. In addition, States should: ii. Ensure that a parent’s drug use or dependency is never the sole justification for removing a child from parental care or for preventing reunification. Efforts should be directed primarily towards enabling the child to remain in or return to the care of their parents, including by assisting drug-dependent parents in carrying out their child care responsibilities.” COMPLAINTS The applicants complained under Article 8 of the Convention that the authorities had placed the second applicant for full adoption against the will of her mother (the first applicant), without having pursued any measures towards preserving the family bond between mother and child, and without having assisted the first applicant towards improving her parental capacity prior to that. QUESTIONS TO THE PARTIES Has there been a violation of the applicants’ right to respect for their family life, protected under Article 8 of the Convention?   In particular, did the authorities make appropriate and sufficient efforts to ensure respect for the applicants’ right to family life before placing the second applicant on the Register for adoption, as required by Article   8 of the Convention (see Zhou v. Italy , no. 33773/11, § 44-48, 21 January 2014)? In that connection, did the authorities show special vigilance and pursue enhanced protection of the applicants, including by actively identifying the first applicant’s specific needs and acting upon them in good time, so as to enable the applicants to preserve as much as possible the bond with each other (see Strand Loben and Others v. Norway [GC], no. 37283/13, §§   205 ‑ 212, 10 September 2019; Akinnibosun v. Italy , no. 9056/14, §   82, 16   July 2015; and Y.I. v. Russia , no. 68868/14, § 87, 12 October 2020)?   Further, in the decision-making process leading to the placement of the second applicant for adoption, were the conclusions of the domestic authorities based on sufficient evidentiary basis, was the first applicant sufficiently involved in that decision-making process and were the reasons adduced by the authorities for their decisions relevant and sufficient for the purposes of Article 8 of the Convention (see Saviny v. Ukraine , no.   39948/06, § 51, 18 December 2008, and Kutzner v.   Germany , no.   46544/99, § 65, ECHR 2002 ‑ I)? [1] These Guidelines were developed in 2019 with the support of the United Nations Development Programme, the German Federal Ministry for Economic Cooperation and Development and the Swiss Federal Department of Foreign Affairs. The Guidelines state that they are a reference tool for those working to ensure human rights compliance at local, national, and international levels, be they parliamentarians, diplomats, judges, policy makers, civil society organisations, or affected communities.