CEDH · CASELAW;CLIN;ENG — 18 décembre 2008

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Ukraine - 39948/06 Judgment 18.12.2008 [Section V] Article 8 Article 8-1 Respect for family life Placement of children in public care on ground that their blind parents had failed to provide adequate care and housing: violation   Facts : The applicants, husband and wife, have both been blind since childhood. They gave birth to seven children. Four of them were taken into public care in 1998. In 2006, pursuant to a court judgment, the remaining three children were also placed in public care. The domestic authorities based their decision on a finding that the applicants' lack of financial means and personal qualities endangered their children's life, health and moral upbringing. Notably, they were unable to provide them with proper nutrition, clothing, hygiene and health care or to ensure that they adapted in a social and educational context. The applicants appealed unsuccessfully. Law : In assessing the necessity of the interference with the applicants' rights guaranteed by Article 8, the Court doubted the adequacy of the evidence on which the authorities had based their finding that the children's living conditions had in fact endangered their life and health. In particular, the custody proceedings instituted in January 2004 had not resulted in the children's removal from home until June 2006. No interim measure had been sought and no actual harm to the children during this period had been recorded. Further, the courts appeared to have taken on trust the submissions by the municipal authorities, drawn from their occasional inspections of the applicants' dwelling. No other corroborating evidence, such as the children's own views, their medical files, opinions by their paediatricians or statements by neighbours, had been examined. Nor did the courts appear to have analysed in any depth the extent to which the purported inadequacies of the children's upbringing were attributable to the applicants' irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it was not the Court's role to determine whether the promotion of family unity in the case entitled the applicants' family to a particular standard of living at public expense. It was, however, a matter which fell to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings. As regards the applicants' purported parental irresponsibility, no independent evidence (such as an assessment by a psychologist) had been sought to evaluate the applicants' emotional or mental maturity or motivation in resolving their household difficulties. Nor had the courts examined the applicants' attempts to improve their situation, such as requests to equip their flat with access to natural gas and hot water, recoup salary arrears or request employment assistance. No data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. Soliciting specific information in this regard would have been pertinent in evaluating whether the authorities had discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents. Furthermore, at no stage of the proceedings had the children been heard by the judges. Moreover, not only had the children been separated from their family of origin, they had also been placed in different institutions. Two of them lived in another city, away from the town where their parents and siblings resided, which rendered it difficult to maintain regular contact. In sum, although the reasons given by the national authorities for removal of the applicants' children had been relevant, they had not been sufficient to justify such a serious interference with the applicants' family life. Conclusion : violation (unanimously). Article 41 – EUR   5,000 in respect of non-pecuniary damage.   © 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