June 2016

Newsletter archive:

June 2016
February 2016


EU Directive 2016/800 of 11 May 2016 establishes procedural safeguards for children who are suspects or accused persons in criminal proceedings. It was published in May 21st on the Official Journal of the European Union.

EU Directive 2016/343 of February 12th, 2016 strengthens certain aspects of presumption of a child's innocence and of children's right to be present at the trial in criminal proceedings. It was published on March 11th, 2016 on the Official Journal of the European Union.


In the case M. G. C. v. Romania (no. 61495/11), the ECHR found that there had been a violation of Article 3 and 8 for failing to effectively prosecute the sexual abuse of a child. Although the claimant was just 11 years old at the time of the events, the Romanian courts decided that there was no evidence that the claimant had refused her consent to the sexual acts. In fact, the national law requires a lack of consent on the victim’s part, which had been impossible for the child to prove because there had been no signs of violence on her body.  


Law 13/XIII of 13th May 2016 protects families from execution processes to pay debts by excluding the houses used as permanent residence. 

Parliament Act nr. 26/XIII of 13 May 2016 extends the opportunity to access medically assisted procreation to same sex partners and to women, irrespective of their marital status or sexual orientation.

The approval of Parliament Act nr. 27/XIII of 13 May 2016 establishing the right to surrogate pregnancy was rejected by the Portuguese President on 7th June 2016 on the basis of the insufficient protection of child rights. The national Parliament will have to amend the text in order to present the act again for approval. 

Case Law

Constitutional Court judgment nr. 193 of 4th April 2016, in the case of a mother deprived from the custody of her seven children, decided that the trial shall be repeated as a consequence of ECtHR decision of February 16th, 2016 which declared that Portuguese law violates the mother's right to respect for private and family life and provided no effective involvement in the decision-making process. The European Court also had held that the authorities should take appropriate measures in the children’s best interests (application no. 72850/14). 


The Special Educational Needs and Disability (Northern Ireland) Act 2016 amends the Education (Northern Ireland) Order 1996.  It increases the recognition of children's right to participating in decisions by stating that authorities shall have regard to the views of the child and shall prepare annual proposals on how authorities plan to respond to these requirements. Additionally, section 13 provides a pilot scheme for children to appeal any decisions made by the authorities which may breach their fundamental rights. Specifically, 13(b) gives children the right to make a claim to the Tribunal. 

The Children and Social Work Bill which is currently going through the House of Lords makes provision for looked-after children, strengthens the obligations pertaining to the welfare of children generally and makes provisions about the regulation of social workers. This not only promotes the best interest principle (section 1(1)(a)) as well as the autonomy of the child (section 1(1)(b)), but also mandates local authorities in England to take into account these matters when making decisions which affect the child.

Case Law

Local Authority X v HI and Others [2016] EWHC 1123 (Fam) 
A High Court of Justice's injunction preventing information regarding the 15-year-old being disclosed to his parents during care proceedings was continued. The court refused the parents' request on the basis of I’s Article 8 ECHR right to respect for private life by considering that there was a clear risk that the consequences of disclosure may result in the young man's disengagement from the professionals who had provided him with guidance and support since his reception into care. 

FK v ML [2016] EWHC 517 (Fam)  
This case concerns a request for return (under the Brussels II bis Convention) by the father of a 13 year old boy, A, who had been living with him in Dublin from 2011, but who had failed to return from a trip to stay with his mother in London over Christmas and the new year 2016. A objected to the return, alleging that he had been physically beaten by his father and arguing that the return would give rise to a grave risk that he would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation (Article 13(b) Hague 1980 exception). Nevertheless, the judge asserted that the nature and strength of a child’s objections to return (under Art 11 Brussels IIBis) has to be weighed against the objective evaluation of what is in the child’s best interests (para 38). The court held that in this case, bearing in mind the serious nature of the mother’s mental health and personality disorder, that it was in the child’s best interests to be returned to his father. 

Ciccone v Ritchie (No 2) [2016] EWHC 616 (Fam) 
In the legal dispute in relation to the custody of a 15 year old son who had expressed the wish to remain with his father in England, the court concluded that any withdrawal of proceedings under The Hague Convention on the Civil Aspects of International Child Abduction (1980) required the permission of the court, and that such decisions should be guided by the best interests of the child. The decision is noted for the judge’s final word of caution to the parents that “The court should always be the option of very last resort when parents cannot agree matters in respect of their children. Whilst the law provides a mechanism for the resolution of disputes between parents in respect of their children it is but a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved.”


Supreme Court, Criminal Division, judgement of December 10th, 2016 nr.  5809
The Supreme Court considered it valid and legitimate to condemn for crime of exhibitionism and child sexual abuse (cybergrooming) using the data obtained from the  personal profile  of a child in a social network. The Supreme Court observed that the parents should access their child's stored messages in the social network. The child's right to privacy gives way when a crime is being committed.

Confidentiality of children´s data and police records of children in criminal procedure
The Spanish Ombudsman intervened to ensure the respect of the confidentiality of an 18-year-old boy's personal data regarding his previous conviction and his detention for an 'educational measure' in a detention center for juvenile offenders. When his application for a residence permit was refused on the basis of this information, the Ombudsman secured the boy's right to data confidentiality and the obligation for for immigration authorities to respect that right during the immigration process. 

The Spanish Constitutional Court in judgement of April 11th, 2016 nr. 65 granted the appeal by a mother to regain custody of her children and recognised that her right to a fair trial (effective acces to justice), based on the ECtHR judgment in the case R.M.S. v. Spain (of June 18th, 2013, Case 28775/12). The Court held that the Spanish authorities had violated Article 8 by breaking up the family instead of setting up supporting measures. The separation of family members was a measure of last resort to be applied only in the most serious cases. 


Parliament Act of March 16th, 2016 nr. 30 ratified the CoE Convention on  preventing and combating violence against women and domestic violence. The final documents were deposited at the Secretariat of the Convention in Strasbourg on May 23rd. 

On April 13th, 2016, the Ministry of Justice published a draft law on the protection of victims of crime updating the law on the state’s responsibilities towards victims of crime (Parliament Act no.211/2004). The draft law aims to harmonize national legislation with the EU victims’ rights package including EU Directive 2012/29.  The main changes proposed refer to the victims' right to be duly informed about their rights, to the obligation of judicial bodies to provide victims with a written notice about the course of their case, as well as the obligation of judicial bodies to translate the cassation orders or similar documents. 

Case Law

High Court of Cassation and Justice, judgment of May 16th, 2016 nr. 5 (not yet published)
The High Court affirmed that it is unlawful for detention courts to order biological tests of convicted children serving educative measures under the new Penal code, aimed at obtaining and storing the genetic profile in the National Judicial Genetic Data System. The action was initiated by the General Prosecutor and the High Court's decision represents a needed clarification on the application of the law, and particularly of the clash between Parliament Act nr. 76/2008, which refers to cases where a criminal punishment is applied, and the new Penal Code (February 2014) eliminating punishments applicable to criminally liable minors in favour of educative measures.

District Court of Bihor, judgment of April 21st, 2016 nr. 2. 366/A/2016
The Court confirms the appealed decision of a local court (Judecatoria Oradea) granting a protection order in a case of domestic violence. Although the acts of violence had only targeted the mother and the Romanian law does not grant victim status to children witnesses of domestic violence, both courts granted the protection measures to both the mother and the minor daughter. 


On January 20th, 2016 Legislative Decree of December 15th, 2015 nr. 212 entered into force implementing EU Directive 2012/29 on the rights, support and protection for victims of crime. The decree amends Italian Criminal Code and the Criminal Process Code to enhance the level of protection and assistance for the access and participation to criminal proceedings, and independently from a trial.

Act of Law of October 19th, 2015 nr. 173 amends the national regulation on adoption of by favoring the adoption of children by their foster parents. The judge shall decide based on the assessment of social services and upon due consideration of the child's opinion when twelve years old, or younger "if the child is capable of judgement."

Case Law

Supreme Court, judgment of June 22nd, 2016 nr. 12962
The Court gives relevance to the legal ties established in time and affirmed that it is in the best interest of the child to be adopted by her parent's homosexual partner to preserve the child's emotional and educational continuity with the adopter. 

Supreme Court, judgment of June 8th, 2016 nr. 11782
Children must have a legal representative from the very start of the adoption process, being the minor age person a fully-fledged part of the process. National law must be interpreted in a way to ensure every child a legal representative at every stage, in lack of which the whole process is void and has to be repeated. 

Relevant evolution in Italian case law
The most recent Supreme Court case law on child abuse and use of child pornography highlights the need to protect both the child as a witness or victim of abuse and the need to rigorously assess the accused to prevent the conviction of innocents. 


Newsletter edited by  Lara Olivetti, Save the Children Italy