liens parents enfant sefca Europe

THIRD SECTION

DECISIONNote

IN THE ADMISSIBILITY

motion no 40446/98

presented by Riad NIAZINote

against the FranceNote

The European Court of human rights third section), sitting in chambers on September 28, 1999, in the presence of

Sir Nicolas Bratza, President;
MR. J.-P. Costa,
M ^me f. Tulkens,
Mr. w. Fuhrmann
Mr. k. Jungwiert
Mr. k. Traja
Mr. M. Ugrekhelidze, judges,

m ^I s Dollé, section Registrar.

Having regard to article 34 of the Convention for the protection of the rights of man and the fundamental freedoms;

Having regard to the application lodged on 22 April 1997 by Riad Niazi against the France, and registered on 25 March 1998, under file No. 40446/98;

Having regard to the reports provided for in article 49 of the rules of court;

After having deliberated;

Makes the following decision:

In fact

The applicant is a French national born in 1935 and residing in Aulnay sous Bois. He holds a doctorate in spectroscopy.

The facts of the case, as exposed by the applicant, can be summarized as follows.

A. circumstances of the case

February 13, 1992, Seine Saint Denis child welfare targeted the procureur de la République a reporting concerning family Niazi, already followed since 1990 by social services. This report went on the State of youth Sylvain and older Aurélie disturbances respectively 6 and 3 years. This evil children be resulted, according to the report, parents conflicting relationships caused by the difficult situation knew Mr. and Mrs. Niazi: the first in long unemployment duration for eight years, the second infringement of a debilitating disease (sclerosis).

February 23, 1992, Bobigny children judge ordered an educational action measure was renewed the February 8, 1993, February 28, 1994 and January 25, 1996. It abundantly with various reports during this period that Ms. Niazi, physically diminished by his illness and hindered in performing many acts of daily life, was very reluctant to external interference preventing implementing projects educational; on the other hand, the divisions within the couple aggravated, disagreement is particularly sensitive on money matters and the education of children. In 1993, Ms. Niazi introduced a divorce proceeding, but she does not continued. In this adversarial context, Sylvain and Aurélie began nevertheless a good education. However, according to reports, Sylvain revealed a tendency to confine that Aurélie was described as "very direct writes much what she thought. Educational action in an open environment maintained by judgment of 25 January 1996, it was at the request of the applicants.

From May 1996, Mrs Niazi had to be hospitalized her disease worsening. M. Niazi occurring only with children, had great difficulty to cope with their education. On the other hand, he expressed a misunderstanding in need experienced by children to move out, that increase the evil be thereof (report of July 10, 1996).

By order of 15 July 1996, the children judge decided a temporary placement of two children for a period of one month during the holidays. In September 1996, Ms. Niazi was still hospitalized.

December 16, 1996, judge children of Bobigny, noting that the situation miners remained a serious concern that the State of health of the mother was not improving and hospitalizations thereof were interspersed with home stays marked by conflict and constant insults between parents, ordered the temporary placement of children for the Christmas holiday. At the same time, it considered for the future placement in the longer term; to this end, a hearing should take place on January 3, 1997. However, the interim order was not executed as Aurélie; Sylvain departs only ten days (note social assistance to children of December 30, 1996).

January 3, 1997, juvenile judge confided children in child welfare while now a right tour and accommodation for parents. In his judgment he reported that Mr. Niazi, only to take care of children on a daily basis, was overwhelmed by his task; He confined his children at home and their authorized no openings on their environment; only the newspaper (hygiene, use of money) management was questionable; children were solitary, great suffering and feared, especially Sylvain, physical contact with others, so almost phobic; only the rare moments of presence of the mother at home were only opportunities to revive tensions and non-exempt conflicts of verbal abuse. Mr. Niazi went alone to the hearing and contested block all issues raised; It refused, however, the establishment of a medical examination to verify that her children were as he stated.

This judgment, encountering strong opposition by Mr. and Mrs. Niazi, couldn't be run from February 19, 1997, is a month and a half after its pronouncement. A report from social assistance to children of 3 April 1997 was State of the great adaptation of two children in their place home «the lookout home» Couilly Pont checkers. School child labour remained diligent and efficient. Return to the family is a weekend out of two. Another report of 19 June 1997 describes as "very well-adjusted" and children happy to live among children of their age.

Supporting poorly this placement, Niazi husband appealed from the judgment of 3 January 1997 before the Court of appeal of Paris. By judgment of 24 October 1997, the Court of Appeal affirmed the judgment noting that Mr. Niazi "retained stubbornly opposed any alternative placement and any form of external intervention in the framework of an educational action in an open environment". However, she recognized the profound attachment parents and children were between them.

A new report from social assistance of 16 December 1997 showed an unchanged parental status.

February 5, 1998, the Bobigny juvenile court decided to maintain the placement of the minors starting January 3, 1998 and June 30, 1999, but allowing more frequent returns of children at home. He noted that they profited from their placement, allowing them to benefit from an opening on their environment necessary while their excellent academic performance. It was also within the family context remained the same, marked by extremely precarious health of mother and a concern of the father concerning children. He concluded Ms. consisting of Niazi projects to brighten up weekends and holidays of her children (registration to the scouts, sports activities) were encouraging and who was very strong parent-child attachment should be supported.

Niazi husband appealed again against that judgment before the Court of appeal of Paris, who decided, December 15, 1998, confirm the decision of the tribunal for children in Bobigny. The Court of Appeal felt that the return of children to their parents home would nature to endanger their psychological health even was found clear improvement in their situation. The right to visit and hosting set up sufficiently guaranteed maintenance of the special relationship of the children with their parents; educational action unconfined insufficient to stop the risk of compromising this improvement and would, Furthermore, frustrated having regard to the position of rejection expressed by Mr. Niazi in its collaboration with social services.

B. relevant domestic law

The relevant articles of the civil code are as follows:

Section 375

"If the health, safety or morals of a minor unemancipated are in danger, or if the conditions of his education are severely compromised, educational assistance measures may be ordered by the justice at the request of the father and mother jointly, or one of them, the person or service that the child or guardian of the minor himself or the Crown." The judge may take office on an exceptional basis. (…) »

Article 375-1

"Juvenile judge is competent, dependent of appeal, for everything concerning educational assistance. It must always strive to collect family joining the proposed measure. »

Article 375-2

"Whenever it is possible, the minor must be maintained in its current environment." In this case, the judge shall designate, or a qualified person, either a service observation, education or rehabilitation unconfined by giving mission to provide assistance and advice to family, to overcome the physical or legal difficulties she encounters. This person or this service is responsible for monitoring the development of the child and to report to the judge periodically. (…) »

Article 375-3

"If it is necessary to remove the child from its current environment, the judge may decide to entrust the: (…)".

3 A service or to a health facility or education ordinary or specialized;

4. "A departmental service" social assistance to children. (…) »

Article 375-6

"Decisions of educational assistance can be, at anytime, edited or reported by the judge who rendered either office either at the request of the father and mother jointly, or one of them, the person or service that the child was entrusted guardian, the minor himself or the Crown."

GRIEVANCE

Relying on article 8 of the Convention, the applicant complained of the intervention of social services in his family life and her children placement ensuing; He considers them to be arbitrary because devoid of merit.

LAW

1. The applicant submits that the intervention of social services in his family life and her children placement ensuing resulted in a violation of article 8 of the Convention, which in its relevant portion reads as follows:

"1. Everyone has the right to respect for his private and family life (…)."

2. There may be interference by a public authority in the exercise of this right only to the extent that this interference is prescribed by law and constitutes a measure in a democratic society is necessary (…) to the protection of health or morals, or the protection of rights and freedoms of others. »

The applicant complains first intervention, approximately five years social services and the juvenile judge in his right to respect for family life. Specifically, he argues, on the one hand, the educator which followed the children this period had based its reports on misleading and incomplete information and could never truly know its brief and spaced passage at the home of the applicant, the nature and behavior of children; his findings have even criticized by the teacher of children, by the Director of the school of Aulnay, family physician and the aunt of children. It would have made unhappy children by placing them in a boarding house for five weeks in summer 1993 because they did not understand why they were away from their parents. On the other hand, he alleged that the juvenile judge have followed blindness the recommendations of the educator, without conducting any investigation and without having sought the advice of parents, and have demonstrated a hostile attitude towards it. Secondly, the applicant denounces the placement of children in child welfare and qualified judicial decisions ordering first it and then maintaining arbitrary. He refutes all the points on which the children judge founded to render its decision of 3 January 1997 investment and stresses the immense pain caused by the placement itself and especially to his wife, seriously ill, but also to children who bear ill this separation. He emphasizes the care that it brought her children years both material terms than those of education, and says tensions that existed in the couple (and who served as a part-time basis to support) had disappeared since 1993, the start date of the son of Mrs. Niazi (of another marriage) the parental home.

2. With regard to exhaustion of internal remedies, the Court notes that the applicant has not appealed in cassation against the judgment of the Court of appeal of Paris, December 15, 1998. The applicant explains that failure by the fact that the proceedings before the Court of cassation would be lengthy and result in her case would be uncertain, so that he would have lost two years during which children still had to suffer.

The Court considers unnecessary to pronounce on whether the position le recours en cassation which must in principle be tempted (see, e.g. case Remli v. France April 23, 1996, reports of judgments and decisions 1996-II, at p. 559, § 42) should be in this case, once it finds another ground of inadmissibility of the application (see below).

3. As to article 8 of the Convention, the Court recalls in effect for a parent her child being set represents a cornerstone of family life and support of a child by the public authorities does not end with natural family relations (see, among many others, Margareta and Roger Andersson v. Sweden of 25 February 1992, series A No. 226 - A, p. 25, § 72).

Interim placement measures initially by j. of Bobigny children (July 15 and 16 December 1996), subsequent placement in child welfare (January 3, 1997) and its maintenance in force (February 5, 1998) to analyze in apparent interference in the right applicant to respect for family life.

Such an interference ignores section 8 of the Convention unless, "prescribed by law", it pursues a legitimate purposes (s) to paragraph 2 and appears to be "necessary in a democratic society" to achieve.

Measures ordered by judge Bobigny children were based on articles 375-375-8 of the civil code and 1181 - 1200-1 the new code of civil procedure relating to educational assistance and therefore "prescribed by law" within the meaning of article 8. They tended in addition to a legitimate purpose to paragraph 2 of this article: the protection of rights and freedoms of others, namely children of the applicant.

Remains to see if they were necessary in a democratic society.

The notion of necessity involves the proportionality of the interference to the legitimate aim pursued. In such cases, the right of parents to respect for family life guaranteed by article 8 includes a right to appropriate measures to bring their children (Court Eriksson c. Sweden June 22, 1989, series A No. 156, pp. 26, § 71 and Rieme v. Sweden of 22 April 1992, series A No. 226 - B, p. 71, § 69). Specifically, consider the support of a child as a temporary measure to suspend whenever the situation lends itself and that any act of execution must be consistent with an ultimate goal: unite again the natural parent and the child (Olsson v. Sweden (No. 1) of 24 March 1988, series A No. 130, pp. 36, § 81). In this respect, a balance must be arranged between the interests of the child to remain positioned and parents to live with him. The Court attached particular importance to the best interests of the child which, depending on its nature and severity, can prevail over that of the parent. In particular, article 8 of the Convention cannot allow the parent to see measures harmful to health and the development of children (stop Johansen v. Norway of 7 August 1996, reports of judgments and decisions 1996-III, p. 47, § 78).

First, the Court notes that children of Bobigny judge and the Court of appeal of Paris founded their decisions on bad family situation existing in the parental home, and the impact thereof on the behaviour of the two children: divisions within the couple leading to proceedings for divorce, financial problems related to a State of chronic unemployment of the father, impossibility for the mother to care for her children due to severe and debilitating illness and resulting in more hospitalizations thereof, confinement of children and communication difficulties with children of their age and reluctance of parents to any measure of educational open action.

Secondly, the Court noted the gradual measures decided by the judge of Bobigny children here: the children of the applicant were placed for a month during the school holidays, then the year-end holidays in 1996; but this last measure was only partially executed. With the decision of 3 January 1997 to place children in child welfare, she does apart them not their parents permanently: limited over time (one year from the judgment), it provided a right to visit and hosting. Finally, the decision of 5 February 1998, extending placement until 30 June 1999, insisted on the necessity to allow more frequent returns of children to the parental home. Each time, the children judge found the benefit children pulled from these investments, both in terms of behavior than test scores.

In those circumstances, the Court considers that it was relevant and sufficient reasons: they provided a valid justification the placement and maintenance. In particular, having regard to the margin of appreciation of the authorities on the subject, incriminated interference was not disproportionate to the legitimate aim pursued.

It follows that the query is manifestly ill-founded and must be dismissed in accordance with article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court majority.

DECLARE THE APPLICATION INADMISSIBLE.

S. Dollé n. Bratza

Clerk Chair

Don't forget to block the text with Alt + B to avoid information in shaded areas disappear.

Put only the initials if not public; first name and uppercase, surname; corporate name in uppercase letters; There is no translation of class names.

First letter uppercase country. Put the article according to the normal use of the language.

40446/98 - -

- - 40446/98