CEDH · CASELAW;CLIN;ENG — 18 février 2020

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Information Note on the Court’s case-law 237 February 2020 Cînța v. Romania - 3891/19 Judgment 18.2.2020 [Section IV] Article 8 Article 8-1 Respect for family life Restriction on applicant’s contact rights based on his mental disorder, without assessing the latter’s impact on his caring skills or child’s safety: violation Article 14 Discrimination Restriction on applicant’s contact rights based on his mental disorder, without assessing the latter’s impact on his caring skills or child’s safety: violation Facts – The application concerned restrictions placed by the courts on the applicant’s contact rights in respect of his four-year-old daughter during divorce and custody proceedings. The applicant argued that the contact schedule, which limited his time with his daughter to two two-hourly meetings per week, in the mother’s presence, did not allow him to maintain and develop a personal relationship with her and to participate effectively in her education. He also alleged that his mental illness had played a significant role in that restriction, even though there had been no evidence before the courts that he would pose a threat to his daughter’s well-being. Law Article 8: The decisions taken by the domestic courts concerning the applicant’s contact with his child had entailed an interference with his right to respect for his family life, which was in accordance with the law and had pursued a legitimate aim, namely the protection of the rights of others. No evidence had been produced to support the allegation that the applicant had been unable to care for his daughter or represented a threat for her. More importantly, the Court could not see what evidence the applicant could have adduced to prove to the domestic courts that his mental condition had posed no danger to his daughter’s safety. In assessing the applicant’s mental health the courts had not relied on any recent expert evaluation.   And that fact had substantially limited the factual assessment of the applicant’s caring skills, vulnerability and mental state at the material time. Moreover, there had been no elements in the decisions that would explain how the courts had established or assessed the child’s best interests. It was unclear whether they had considered and had tried to mitigate the potential distress the child might suffer if her only contact with her father took place in both parents’ presence, despite their ongoing conflicts. There had been no arguments indicating the benefits for the child of such a contact arrangement. No alternative means had been explored by the domestic authorities, such as, for example, supervised contact involving the child-protection authority. The courts had not sufficiently explored the allegations that the child had suffered at the hands of her father. The child had been interviewed by the judge in camera, without the presence of an expert psychologist from the child‑protection authority. It was not clear from the court decisions to what extent the child’s allegations of negative behaviour on the part of her father had been taken into account and whether and how the contact schedule had been affected by that threat. The assessment, or lack thereof, of the threat to the child seemed to run counter to the very prohibition of domestic abuse against children, prohibited in absolute terms by the domestic law, and cast doubt on the decision-making process. The domestic courts had acted with expedition, in three and a half months, as required in cases concerning rights of children. However, the promptness of the proceedings should not have come at the expense of the assessment of all relevant evidence by the courts. In sum, the decision‑making process leading to the impugned decision had not been conducted so as to ensure that the applicant’s current state of health had been properly assessed and that all views and interests had been duly taken into account. The procedure had not been accompanied by safeguards that had been commensurate with the gravity of the interference and the seriousness of the interests at stake. Conclusion : violation (unanimously). Article 14 in conjunction with Article 8: Mental illness might be a relevant factor to be taken into account when assessing parents’ capability of caring for their child. However, relying on mental illness as the decisive element or even as one element among others might amount to discrimination when, in the specific circumstances of the case, the mental illness did not have a bearing on the parents’ ability to take care of the child. In accordance with the international standards, persons with mental illness or disabilities had to receive appropriate assistance from the State in the performance of their child‑rearing responsibilities, and children should not be separated from their parents without a proper judicial review of the matter by the competent authorities. In the present case, although the applicant’s mental illness had not been the only element taken into account by the courts, it had been present at all stages of the decision-making process. Its influence on the assessment of his application had been a decisive factor leading to the decision to limit his contact with his child. The applicant had thus suffered a difference in treatment from other parents seeking contact with their estranged children. This difference had been based on his mental health, a ground covered by “other status”. The Court had to examine whether the domestic authorities had provided sufficient reasons for taking the applicant’s mental illness into account in their assessment. The applicant had been perceived as a threat because of his mental illness without further consideration given to the concrete circumstances of the case and the family situation. In this respect, the case differed from the situation examined by the Court in S.S. v. Slovenia , where the applicant had been divested of her parental rights not based on her psychiatric diagnosis, but on her consequent inability to take care of the child, which had been confirmed by all the expert reports produced in the proceedings. The domestic courts had not properly assessed the applicant’s mental health. There had been no element in their decisions allowing them to determine whether it was a relevant issue to be considered. The fact that the applicant suffered from a mental illness could not in itself justify treating him differently from other parents seeking contact with their children. In particular, at the time the domestic decisions were taken, the applicant had been taking his medication regularly and for the previous two years, there had been no episodes of psychiatric decompensation caused by his illness. Consequently, in restricting the applicant’s contact with his child, the domestic courts had made a distinction based on his mental health for which they had not provided relevant and sufficient reasons. In these circumstances, a prima facie case of discrimination had been established. The burden then shifted to the respondent State to convincingly show that the applicant’s contact with his child had not been restricted on discriminatory grounds, but rather that his mental illness had indeed impaired his ability to take care of his child or that there had been other reasonable grounds for such a restriction. Regard being had to the specificity of the facts and the nature of the allegations made in this type of case, it would be extremely difficult in practice for the applicant to prove discrimination without such a shift in the burden of proof. However the respondent State had not brought forward convincing reasons such as to rebut the presumption of discrimination against the applicant on the grounds of his mental health. Conclusion : violation (five votes to two). Article 41: EUR 10,000 in respect of non-pecuniary damage. (See also K. and T. v. Finland [GC], 25702/94, 17   July 2001, Information Note 32 ; B. v. Romania (no.   2) , 1285/03, 19   February 2013, Information Note 160 ; X   v. Latvia [GC], 27853/09, 26   November 2013, Information Note 168 ; Kocherov and Sergeyeva v. Russia , 16899/13, 29   March 2016, Information Note 194 ; S.S. v. Slovenia , 40938/16, 30   October 2018, Information Note   222 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes