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12 May 2017
Marianne Haslev Skånland:
Interesting ECtHR judgment: Improta against Italy
Many will know that the ECtHR is the European Court of Human Rights. The Court is placed in Strasbourg.
This judgment stems from 4 May 2017. It is in French. French not being easily accessible to many readers, Google Translate gives quite a clear result, at least into English. (The Google translation here probably illustrates that good translation has always been especially important in the legal field, so that is where the development of automatic translation has been maximally successful so far.)
AFFAIRE IMPROTA c. ITALIE
Italy was found guilty of a violation of Article 8:
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The case Improta v. Italy is about a father and daughter in a divorce case being able to meet each other. The social services have also been involved in the case. The mother has prevented and delayed meetings, and the national authorities in Italy have been slow to enforce arrangements for meetings. A question has also been up about whether the child should be placed with other people than the parents. Independent of this element of something in the direction of child protection (the social services are present at meetings), the Court makes some points which are very interesting to those of us who are primarily concerned about abuse by the social services against family life.
I quote some parts of the judgment, which is in French. I append a translation into English; it is partly taken from Google's automatic translation program, but I have modified it in a few places where the translation is obviously wrong (automatic translation does not, for instance, necessarily capture the applicant's (the father's) sex nor that of the child).
What I quote is by and large of clear relevance for Norway, but I also try my hand as an analyser of some points. I am no jurist, but law – especially human rights law – is certainly about ordinary people's ordinary life, and should be understandable and meaningful for everyone affected by it.
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"27. Le 27 septembre 2012, les experts répondirent aux observations des parties. Ils relevèrent que le requérant n’avait pas d’expérience de la paternité en raison de l’absence de relation continue avec sa fille et que leur relation devait dès lors être développée et renforcée."
"27. On 27 September 2012, the experts replied to the observations of the parties. They noted that the applicant had no experience of paternity due to the lack of an ongoing relationship with his daughter and that their relationship should therefore be developed and strengthened."
Here, then, we have Italian experts saying that because the father has not previously had the opportunity in acquiring experience of what it is to be a father, one has to see to it that this is done through developing and strengthening the ties father - daughter! Bravo! Exactly the opposite of what Norway's collected psycho-babble cadre claims: that if a parent does not have any experience of close family ties already, their child should be taken from them!
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"43. La Cour rappelle que, pour un parent et son enfant, être ensemble représente un élément fondamental de la vie familiale (Kutzner c. Allemagne, no 46544/99, § 58, CEDH 2002) et que des mesures internes qui les en empêchent constituent une ingérence dans le droit protégé par l’article 8 de la Convention (K. et T. c. Finlande [GC], no 25702/94, § 151, CEDH 2001‑VII)."
"43. The Court reiterates that, for a parent and his child, being together is a fundamental element of family life (Kutzner v. Germany, no. 46544/99, § 58, ECHR 2002) and that internal measures preventing them Constitute an interference with the right protected by Article 8 of the Convention (K. and T. v. Finland [GC], No. 25702/94, § 151, ECHR 2001-VII)."
Important that the ECtHR points to this judgment against Finland; K and T v. Finland was a child protection case, in which the social services took a baby away although there was no danger – the baby and the mother were at that time in the hospital. It is a judgment that should be used against Norwegian authorities every time our child protection services rush into maternity wards and take newly born babies, allegedly to prevent "development of attachment" between mother and child (in itself quack speculation from "attachment theory").
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"44. La Cour rappelle aussi que l’article 8 de la Convention tend pour l’essentiel à prémunir l’individu contre des ingérences arbitraires des pouvoirs publics et qu’il peut engendrer de surcroît des obligations positives inhérentes à un « respect » effectif de la vie familiale."
"44. The Court also recalls that Article 8 of the Convention is essentially intended to protect the individual against arbitrary interference by the public authorities and that it may also give rise to positive obligations inherent in an effective "respect" family life."
In other words: The authorities shall not only abstain from interfering in family life without justification; situations also exist in which the authorities have a positive obligation to see to it that "respect" for family life is effective.
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"52. ... Or un respect effectif de la vie familiale commande que les relations futures entre parent et enfant se règlent sur la seule base de l’ensemble des éléments pertinents, et non par le simple écoulement du temps"
"52. ... Effective respect for family life requires that future relations between parents and children be regulated solely on the basis of all relevant factors, and not simply by the passage of time"
Indeed, one is not to delay, or passively let the time drag out, and then claim that it is now too late to let the child acquire any relationship to the parent(s).
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"54. Pour la Cour, un surcroît de diligence et de rapidité s’imposait dans l’adoption d’une décision touchant aux droits garantis par l’article 8 de la Convention. L’enjeu de la procédure pour le requérant exigeait un traitement urgent, car le passage du temps pouvait avoir des conséquences irrémédiables sur les relations entre l’enfant et son père, qui ne vivait pas avec elle."
"54. In the Court's view, there was a need for greater diligence and speed in the adoption of a decision on the rights guaranteed by Article 8 of the Convention. The issue of the proceedings for the applicant required urgent treatment, as the passage of time could have irremediable consequences on the relationship between the child and her father, who was not living with her."
"57. Du fait des carences constatées dans le déroulement de cette procédure, la Cour ne saurait donc considérer que les autorités italiennes ont pris toutes les mesures nécessaires que l’on pouvait raisonnablement exiger d’elles afin d’assurer au requérant le maintien d’un lien familial avec son enfant, dans leur intérêt à tous les deux."
"57. As a result of the deficiencies in the procedure, the Court can not therefore consider that the Italian authorities took all the necessary measures which could reasonably be required of them in order to ensure the applicant A's family bond with his child, in the interest of both."
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"58. Au vu de ce qui précède, la Cour conclut à la violation de l’article 8 de la Convention."
"58. In the light of the foregoing, the Court finds that there has been a violation of Article 8 of the Convention."
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Compare also
Sanchez Cardenas v. Norway 4 October 2007
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