Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 10/21/2008

Subject: The 12 applicants are Italian nationals. In March 1995, following accusations of sexual abuse and rape made by Mr Lucanto’s niece, then a minor, he and five other members of his family were committed for trial. In November 1995, as the complainant, X, had said she feared her cousin Y had also been subjected to sexual abuse and rape by the same persons, the Milan Children’s Court ordered that Y be taken into the care of the social services and placed in a children’s home. The court also decided to break off her contacts with her parents and her brother. In April 1997, with a view to securing a stable family environment for her and basing its decision partly on an expert’s report and partly on the parents’ conduct, the court decided to put Y up for adoption. In the face of the parents’ objections and even though Mr Lucanto had been acquitted in June 2001, the decision to put Y up for adoption became final in November 2002. The applicants relied in particular on Article 8 (right to respect for private and family life). The Court declared the application admissible as regards the first four applicants and inadmissible as regards the other eight. The Court considered that the use of the urgent procedure in order to take Y away from her family was a measure which the Italian authorities were perfectly entitled to take in cases of sexual abuse. This was incontestably an odious type of offence which did great damage to the victims. The criminal background could reasonably have led the authorities to believe that keeping Y in her home might cause her harm. Consequently, the Court considered that taking Y into care and removing her from her family could be regarded as proportionate measures “necessary in a democratic society” for the protection of her health and her rights, and held that there had been no violation of Article 8 in that respect. The Court noted that the Italian civil courts had put Y up for adoption while the criminal proceedings against her father were still pending. After his acquittal, when ruling on the family’s objections to the decision to put Y up for adoption, they had given judgment against the parents. The Court considered that the reasons given by the domestic courts for the decision to put Y up for adoption were insufficient in relation to the child’s interest, which required that a decision resulting in a breaking of family links should be ordered only in quite exceptional circumstances, and that everything should be done to maintain personal relations and, where appropriate, at the right time, to “reconstitute” the family. In the present case no programme to draw Y and her natural family back together had been set up, even though the mother had not faced any criminal charges. The Court emphasised that after being taken into care Y had never been able to meet any member of her natural family and that the breaking of every link with them had been total and final. The Italian authorities had not tried to take any steps calculated to maintain links between Y and her family, particularly her mother and her brother, or help the family overcome any difficulties in their relations with Y and reconstitute the family. Consequently, the Court held unanimously that there had been a violation of Article 8 as regards the lack of contact between Y and her natural family while she was in care and the decision to put her up for adoption. By five votes to two it awarded EUR 20,000 to each of the applicants for non-pecuniary damage.

Parties: Clemeno e altri c/ Italia

Classification: Freedoms - Art. 7 Privacy