Évora Court of Appeal, proc. 290/09.3TMFAR.E1, 01.03.2012

REFERRAL FOR ADOPTION | INSTITUTIONALISATION | EARLY SCHOOL-LEAVING | ROMA ETHNICITY | MINIMUM HYGIENE CARE

 

 

Évora Court of Appeal, proc. 290/09.3TMFAR.E1, 01.03.2012  

 

JURISDICTION: Civil

SUBJECT: Child protection

RAPPORTEUR: Maria Rosa Barroso

RULING: Rejects the appeal and confirms the lower court decision, which had applied the measure of institutionalisation with a view to a future adoption.

DOMESTIC LAW:

Law No. 147/99, of 1 September 1999 (Article 62-A)

Civil Code (Article 1978)

Code of Civil Procedure [Articles 684(3), 685-A, 660(2)]

Supreme Court judgment, proc. 52.08.5TBCMN.G1.S1, 30.06.2011

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Situation of danger; institutionalisation; mandatory schooling regime; Roma poor hygiene habits; white community standards; Roma camping shed; biological family; stateless; ethno-cultural integration; early school-leaving; children educational needs; personal hygiene; minimum social income; shame of being Roma; vaccines; Roma ethnicity; Roma community; best interest of the child; healthy development process; marginalised by his peers; non-Roma individual; lack of self-esteem; family reunification; substitute family framework; affectionate ties specific to filiation; socialisation; internalisation of rules; mistreatment; discriminated; minimum hygiene care; extended family; lay judges; prevalence of the family

COMMENTS:

1. This judgment reviews the decision to apply to a 10-year-old child a measure of institutionalisation with a view to a future adoption. On appeal against the referral for adoption, the child’s mother had made use of cultural arguments, by pointing out that the “Roma poor hygiene habits” had been measured against “white community standards”, and by claiming that the child would become “stateless in terms of his ethno-cultural integration” if he lost contact with her. The Évora Court of Appeal dismissed these arguments, rejecting the idea that the lack of hygiene habits is a Roma trait or that the Roma are not attentive to their children. In the Court’s words: “It should not be claimed that the Roma ethnicity has any relevance when it is known of the ties and care that this ethnicity has for the children”. The Court stresses that the situation of danger is not necessarily the parents’ fault and is even understanding towards the child’s mother, saying that it is probable that she herself was a victim of her relationship with the child’s father, a non-Roma man, long since gone and whereabouts unknown.

 

2. The child had been signalled, together with an older brother, due to early school-leaving. A child protection procedure was initiated on the grounds that the children were not receiving care suited to their personal situation and age. Following the failed attempt to establish a measure of support to the mother, the child was institutionalised for the period of one year, renewable until he reached majority. No measure was applied to the older brother, since he was by then living with an aunt, was no longer covered by the mandatory schooling regime, and was not in a situation of danger. After one year of institutionalisation, the host institution recommended that the child be applied a measure of institutionalisation with a view to a future adoption, which the Public Prosecutor then requested, on the grounds that neither the mother nor any other family member had presented themselves as alternatives to institutionalisation. The lower court established the measure, in a hearing involving the participation of lay judges.

 

3. The child’s mother appealed the decision with the argument that the child’s economic and social needs could be addressed by the institutionalisation, without referral for adoption and without restricting the mother’s parental authority, in order to keep the child’s ties to the biological family. According to the child’s mother, the legal requirements for referring a child for adoption [Article 1978(1)(d)(e) of the Civil Code] were not met, and the “Roma poor hygiene habits, measured by the white community standards”, as well as the living conditions in the Roma camping shed, did not warrant the measure. The mother also alleged that the measure did not ensure the future adoption of the child and that the severance of contacts between her and the child would leave “indelible marks in his personality, making him ‘stateless’ in terms of his ethno-cultural integration”.

 

4. In its assessment of the appeal, the Court starts by listing the established facts, which include, among others, the following: (i) the child did not go to school or attend classes and, in the rare occasions that he went, he did not interact with his colleagues and played alone; (ii) when he went to school, the child was engaged, well behaved and showed cognitive skills, saying that he liked school and wanted to attend, but couldn’t because his clothes were dirty; (iii) the mother had not shown interest in ensuring that her children went to school, nor in taking advantage of the facilities and meals offered by the Almancil Social and Cultural Association; (iv) the shed where the family lived had no conditions for personal hygiene and no separate space for the children; (v) the mother had lost the right to the minimum social income subsidy for failing to meet the corresponding obligations; (vi) “the mother was so careless, that she did not even retrieve her children’s family subsidy”; (vii) the child was fragile and docile, and seemed to be ashamed of being Roma during the mother’s visits to the institution; (viii) the child had been “delighted with his new situation” at the host institution; (ix) the child’s vaccines and health records were not up to date; (x) the child “expressed the wish not to return to his mother”; (xi) the mother’s visits to the institution were increasingly less frequent and, during the visits, the interaction between mother and child was “extremely poor”, with almost no talk and no physical contact or displays of affection; (xii) the child did not know his father and had never been well accepted in the Roma community due to the fact that the father was not Roma.

 

5. The Court starts its assessment of the merits by explaining that child protection procedures do not aim to settle the child’s situation in definitive terms, but instead to remove the child from the danger in which he/she is. In the instant case, even though two years had passed since the child had been institutionalised, “it had not been possible to remove the danger in which the child had been before, so that there was no guarantee that, if he returned to his mother, he would not go back to the previous situation”. According to the Court, neither the mother nor the rest of the family had managed to present themselves as options for the child’s return to his biological family. The Court acknowledges that the “separation of the child from his family must be a measure of last resort”, and that the principle of prevalence of the family “must be carefully considered”, and only set aside when “so required by the best interest of the child”. Here, the situation was “irreversible with regard to family reunification”, since the mother had no plans for the child, and only asked that he remained institutionalised. The best interest of the child required, therefore, that a “substitutive family framework” be found. The child had the right to a family that cared for him and supported him as is proper of filial ties. The Court dismissed the argument that the age of the child would probably make adoption more difficult, holding that, if the adoption were to be proven unviable, the future would dictate the best solution. The Court admitted, in any case, the possibility of reassessing the measure in the future, if exceptional and unforeseen reasons, related to the child and considering only his best interests, so required.

 

6. According to the Court, the mother continued to show “the same incapacity/impossibility of ensuring a healthy development for her child (probably without being to blame)”. Even though the Court recalls several of the mother’s omissions (e.g., lack of basic care with regard to hygiene, education and food, failure to go to her children’s school, failure to retrieve her children’s family subsidy), the Court insists that the referral for adoption is not meant to “punish or blame the parents”, but instead to ensure the promotion of the best interest of the child, which is the key criterion when checking whether the requirements of Article 1978 of the Civil Code are met. Elsewhere, the Court observes that “the child is in danger if he or she does not receive all the care and affection that are suited to his/her age and personal situation, irrespective of the parents’ fault”, and that the measures are not adopted against the parents but for the benefit of the children. The Court also notes that it is not its role to “blame the mother (herself with severe deprivations and limitations)”.

 

7. The Court assumes that the mother’s deprivations are, at least partly, the result of her involvement with a non-Roma man and of having had a child with him. “Probably the mother is also victim of the relationship from which the child was born, that is, the relationship with a non-Roma man”. It was established that the child was never well accepted in the Roma community. The marginalisation of the child within the Roma community seems to be the reason why the extended family did not come forward to take care of him, an attitude which the Court points out as odd among Roma people. “It should be noted that the extended family is also not available to take care of the child, which is unexpected in this ethnicity”.

 

8. Even though the bad living conditions, lack of food and poor hygiene could be said to be enough to establish a situation of danger, the Court paid special attention to the fact that the mother did not take her son to school, when she had the time to do it, equating this omission with a form of mistreatment. “Objectively, it is mistreatment to allow a child to be discriminated, by not providing him a minimum hygiene care, it is mistreatment not to take him to school and making him feel less than others, and it is mistreatment not to be with him and not to fight to have him back, even without a clear understanding of the child’s needs”. On the importance of schooling, the Court further notes: “The school is not just the acquisition of knowledge. The school is the interaction with peers and with adults, which is indispensable for a healthy development process. The requirement of mandatory schooling for children is unquestionable for the contribution of what is learned at school to socialisation and internalisation or rules”.

 

9. This judgment has the merit of explicitly rejecting negative stereotypes about persons of Roma ethnicity (poor hygiene, disregard for the children). At the same time, the Court puts forward a few generalisations about the Roma – their great care for their children, the usual involvement of the extended family in caring for the children, the marginalisation of Roma women who get involved with non-Roma men and of the off-spring of these relations – without it being possible to determine whether these are based on witness or expert testimonies, on consultation of the academic literature or, more likely, on the judges’ life experience.

 

Patrícia Jerónimo

 

Cite as: JERÓNIMO, Patrícia, “[Annotation to the judgment of] Évora Court of Appeal, proc. 290/09.3TMFAR.E1, 01.03.2012”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/.

 

REFERENCES IN THE LITERATURE: n.a.

 

 

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