N.P. v. THE REPUBLIC OF MOLDOVA
Leser en denne saken, kjenner en igjen mange momenter som brukes av barnevernet i omsorgsovertakelsessaker, såkalte §4-12 saker. På flere punkter påpeker Menneskerettighetsdomstolen manglende utredning i barnevernets arbeid og hadde vi ikke visst at dette var i Moldovia, kunne vi lett bli lurt til å tro at dette var i Norge. For likheten i manglende utredning og bevisførsel er slående.
Her er mye som advokater kan bruke for å knuse barnevernet i saker der barnevernet har gjort dårlig grunnarbeid.
Quote from the judgment / Sitat fra dommen:
«64. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. Firstly, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; secondly it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K. and T. v. Finland, cited above, § 154; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, ECHR 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011).
65. The Court reiterates that in these types of cases, consideration of what is in the best interests of the child is of crucial importance. The deprivation of parental rights is a particularly far-reaching measure which deprives a parent of his or her family life with the child and is inconsistent with the aim of reuniting them. Such measures should be applied only in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child’s best interests (see M.D. and Others v. Malta, no. 64791/10, § 76, 17 July 2012; and, mutatis mutandis, Johansen v. Norway, 7 August 1996, §§ 64 and 78, Reports of Judgments and Decisions 1996‑III).
66. In identifying the child’s best interests in a particular case, two considerations must be borne in mind: firstly, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H. v. the United Kingdom, cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136, and R. and H. v. the United Kingdom, cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K. and T. v. Finland, cited above, § 173, and K.A. v. Finland, no. 27751/95, § 92, 14 January 2003). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; R. and H. v. the United Kingdom, cited above, § 73; and Y.C. v. the United Kingdom, no. 4547/10, § 134, 13 March 2012).
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68. Stricter scrutiny is called for in respect of any further limitations – such as restrictions placed by the authorities on parental rights of access, as such additional limitations entail the danger that the family relations between the parents and a young child might be effectively curtailed. The minimum to be expected of the authorities is to examine the situation anew from time to time to see whether there has been any improvement in the family’s situation. The possibilities of reunification will be progressively diminished and eventually destroyed if the biological parents and the child are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur (see K.A. v. Finland, cited above, § 139).
69. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and the serious nature of the decisions to be taken, the parents have been sufficiently closely involved in the decision-making process, seen as a whole, to have been provided with the requisite protection of their interests and to be able fully to present their case (see Neulinger and Shuruk, cited above, § 139; R. and H. v. the United Kingdom, cited above, § 75; and Y.C. v. the United Kingdom, cited above, § 138). Moreover, in assessing the quality of the decision-making process leading to the splitting-up of a family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on adequate evidence (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, Saviny v. Ukraine, no. 39948/06, § 51, 18 December 2008).
70. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T. v. Finland, cited above, § 166; and Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002‑I) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then to enable regular contact between them (see, mutatis mutandis, Kutzner, cited above, §§ 76-77; K. and T. v. Finland, cited above, § 179, and Saviny, cited above, 52).
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74. The Court notes that the domestic authorities based their decision to withdraw the applicant’s parental authority on the finding that, as a consequence of personal character traits (neglect of her child and immoral behaviour), she was unable to provide her child with proper nutrition, clothing, a sanitary environment and health care, nor was she able to ensure her social and educational development, thereby endangering the child’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.
75. In so far as the sufficiency of those reasons is concerned, the Court notes firstly that in order to reach a number of specific conclusions (such as the finding that the child regularly lacked proper nutrition, was not cared for and often wandered around alone), the courts relied solely on the submissions of the social services (see paragraph 20 above), the police report drawn up in relation to the incident on 22 September 2011, and a subsequent inspection of the applicant’s home. No other corroborating evidence, such as reports from previous visits by the social services or the police, or statements by neighbours had been examined, even though the file contained the affidavits of fifteen neighbours averring to the contrary (see paragraph 22 above). The domestic courts in fact chose to ignore the evidence adduced by the applicant instead of assessing it during the proceedings.
76. Referring to the applicant’s failure to provide proper health care, the courts relied on the full diagnostics made in the hospital, but no assessment was made of the immunisation record submitted by the applicant as evidence to the contrary or to the fact that A. was considered physically healthy relatively quickly on 22 January 2013 (see paragraph 15 above), that is to say before the final judgment withdrawing the applicant’s parental authority was delivered on 8 May 2013. Similarly, as regards the applicant’s immoral conduct, the only objective evidence was the report of her alcohol intoxication on 22 September 2011. The courts also relied on the submissions by the social services that the applicant had been intoxicated on two other occasions, even though those allegations were disputed by the applicant and were not supported by any objective evidence.
77. As regards the courts’ finding to the effect that the applicant did not visit A. after her removal from home, the courts relied only upon the submissions of the social services and ignored the documents in the file proving that the applicant had unsuccessfully sought such visits on numerous occasions.
78. There is no indication that the courts sought any independent evidence, such as an assessment by a psychologist, to evaluate the applicant’s emotional maturity and motivation to act as a responsible parent and to resolve her household difficulties. The courts’ reasoning does not include any analysis of the applicant’s attempt to improve her situation after A.’s removal from home, such as obtaining a job, cleaning up her house and fulfilling the formalities necessary for enrolling A. in a pre-school institution. On the contrary, the courts appear to have trusted the submissions by the social services that the applicant failed to improve her living conditions and attitude, notwithstanding the absence in the domestic case-file of any evidence of follow-up inspections after the incident of 22 September 2011 to assess the changes allegedly made by the applicant.
79. Furthermore, there is no indication that the judicial authorities analysed in any depth the extent to which the inadequacies of the child’s upbringing were attributable to the applicant’s incapacity or unwillingness to provide requisite care, as opposed to her financial difficulties, to which she referred in the domestic proceedings and which could have been overcome by appropriate financial and social assistance and effective counselling. In this context it is interesting to note that both the police and the prosecutor considered the applicant’s personal and family circumstances as a mitigating factor when she was fined for failure to fulfil her parental duties (see paragraph 11 above) (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 73, 26 October 2006).
80. It is not the Court’s role to determine whether the promotion of family unity in this case entitled the applicant to an adequate standard of living at public expense. It is, however, a matter which falls to be discussed by the relevant public authorities and, subsequently, in the course of court proceedings. There is no evidence in the case-file that such matters were ever considered by the authorities or the courts.
81. Finally, the Court notes that beyond the descriptive findings of the reports, repeatedly pointing to what had been seen on 22 September 2011 – such as the unsanitary living conditions, the applicant quarrelling with her mother, and A.’s unkempt appearance – no data was sought as regards the conditions or the assistance that had been provided to the applicant prior to that date. The Court finds that obtaining information in this regard was required by domestic law (see paragraphs 37 and 40 above) and would have been pertinent in evaluating whether the authorities had discharged their Convention obligation to promote family unity and had explored sufficiently the effectiveness of less far-reaching alternatives before seeking to separate the child from the applicant by withdrawing the applicant’s parental authority.»
N.P. v. THE REPUBLIC OF MOLDOVA
ECHR (Application no. 58455/13) JUDGMENT STRASBOURG 6 October 2015