CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 avril 2010

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Italy (application no. 16318/07)   SHORTCOMINGS IN ADOPTION PROCEEDINGS: FAILURE TO RESPECT FOSTER PARENTS’ RIGHTS   Violation of Article 8 (right to respect for private and family life ) of the European Convention on Human Rights     Principal facts   The applicants, Luigi Moretti and his wife, Maria Brunella Benedetti, are Italian nationals who were born in 1966 and 1959 respectively and live in Lugo di Ravenna (Italy). They lived with their daughter and a child adopted by Mrs Benedetti. They had previously fostered children subsequently adopted by other families.   By an emergency order of 20 May 2004, a newborn baby, A., whose mother had ceased looking after her a few days after her birth, was provisionally placed with them by court decision for a period of five months that was subsequently extended until December   2005. In the meantime proceedings were instituted to declare A. free for adoption.   On 26 October 2004 the applicants sought a special adoption order in respect of A. When they received no response they repeated their request in March 2005. In the meantime the court had declared the child free for adoption. On 19 December 2005 a new family was given custody of A. in a decision that was not served on the applicants. On the same day the child was removed from the applicants’ home with the assistance of the police.   The court dismissed a request to adopt by Mr Moretti and Mrs Benedetti on the ground that another family had been chosen in the meantime in the child’s best interests. On appeal by the applicants, the Court of Appeal set aside the lower court’s decision on grounds of lack of reasoning and held that the application to adopt should have been examined before the child was declared free for adoption and a new family chosen. An expert opinion requested by the Court of Appeal found that the child appeared to be attached to both couples in question but seemed to be well integrated into her new family. On 27   October   2006 the Court of Appeal held that a further separation would risk traumatising the child. The adoption order in respect of A. became final on an unspecified date.     Complaints, procedure and composition of the Court   Relying on Article 8 in particular, the applicants alleged that the relevant law and procedural rules had been wrongly applied in respect of their adoption request.   The application was lodged with the European Court of Human Rights on 13 April   2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Vladimiro Zagrebelsky (Italy), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl Karakaş (Turkey), judges , and also Sally Dollé , Section Registrar .     Decision of the Court   With regard to the applicants’ standing to apply to the Court on behalf of A., the Court noted that Mr Moretti and Mrs Benedetti did not exercise any parental responsibility over the child, that the steps they took to adopt her had been unsuccessful and that they had no power of attorney to represent A’s interests. Accordingly, they did not have the necessary legal powers to represent the child’s interests. The part of the application submitted in A’s name was therefore dismissed as being incompatible with the provisions of the Convention.   The Court reiterated that the notion of “family life” in Article 8 was not confined solely to marriage ‑ based relationships but could also encompass other de facto “family ties” where further elements of dependency were present involving more than emotional ties. The determination of the family nature of a such a relationship had to take account of a number of factors, such as the length of time the persons in question had been living together, the quality of the relationship and the adult’s role in respect of the child. The Court noted that the applicants had lived with A. during the important stages of the first 19 months of her life and that she had been well integrated into the family, which had fostered her social development. Having regard to the strength of the bond that had developed between the applicants and the child, the Court found that this had amounted to family life for the purposes of Article 8.   Whilst Article 8 did not guarantee a right to adopt, it did not prevent an obligation arising on States, in certain circumstances, to allow family ties to be formed. In the present case it had been of primary importance that the request for a special adoption order lodged by the applicants be examined carefully and speedily. The Court reiterated that where cases concerning family life were concerned the passage of time could have irremediable consequences. It was regrettable that the request for adoption lodged by the applicants had not been examined before declaring A. free for adoption and that it had been dismissed with no reasons being stated.   It was not for the Court to substitute its own reasoning for that of the national authorities regarding the measures that should have been taken, and the good faith on the part of the courts in securing A.’s well-being was not in doubt. However, the shortcomings observed in the proceedings in question had had a direct impact on the applicants’ right to family life, and the authorities had failed to ensure effective respect for that right. Accordingly, the Court held, by six votes to one, that there had been a violation of Article 8.   ***   Under Article 41 (just satisfaction), the Court held that Italy was to pay jointly to the first two applicants 10,000   euros (EUR) for non-pecuniary damage, and EUR 5,000 for costs and expenses. ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. All final judgments   are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .