EHRM, 10-09-2019, nr. 37283/13

On 29 April 2011 the first applicant applied to the child welfare services for termination of the care order or, in the alternative, extended contact rights with X.

On 13 July 2011 the municipal child welfare services forwarded the request to the County Social Welfare Board. The municipality proposed that it be rejected; that the first applicant's parental responsibilities for X be withdrawn (transferred to the authorities), and that X's foster parents, with whom he had resided since he was taken into care (see paragraph 22 above), be granted permission to adopt him. The identity of X's biological father was still unknown to the authorities. In the alternative, the municipality proposed that the first applicant's contact rights be removed.

During a contact session on 6 September 2011 the supervisor noticed that the first applicant was pregnant and asked when the baby was due, to which the first applicant, according to the supervision notes, answered that she thought it was around New Year's Eve. According to the notes, the contact session went well.

On 13 September 2011 the first applicant's counsel engaged a specialist in clinical neurology to test her abilities and to map her cognitive capacities.

In letters of 14 September and 28 October 2011, in the course of the proceedings before the Board, the municipality asked for further information about the first applicant's husband, in order to be able to make contact with him and talk to him about his future role in the first applicant's life.

Meanwhile, on 18 October 2011, the first applicant gave birth to Y. She had married the father of Y in the summer of that year. The new family had moved to a different municipality. When the child welfare services in the first applicant's former municipality became aware that she had given birth to another child, they sent a letter expressing concern to the new municipality, which started an investigation into her parenting abilities.

Also on 18 October 2011, the specialist in clinical neurology engaged by the first applicant's counsel (see paragraph 84 above) produced his report. His conclusion read as follows:

In response to a request for follow-up, he wrote to the first applicant's counsel on 27 October 2011 stating as follows:

On 8 November 2011 the first applicant's counsel sent a copy of a medical journal dated 2 November 2011 to the Board. It appeared from the copy that a doctor had agreed to give evidence by telephone during the upcoming case and that the doctor could not see that there was anything connected with the first applicant's epilepsy or cognition that would indicate that she was not capable of taking care of her child.

On 28, 29 and 30 November 2011 the County Social Welfare Board, composed of a lawyer, a psychologist and a lay person, held a hearing at which the first applicant was present together with her legal representative. Twenty-one witnesses were heard.

On 8 December 2011 the Board decided that the first applicant's parental responsibilities for X should be withdrawn and that X's foster parents should be allowed to adopt him. The Board found that there was nothing in the case to indicate that the first applicant's parenting abilities had improved since the High Court's judgment of 22 April 2010 (see paragraphs 65–75 above). Therefore she was still considered incapable of giving X adequate care. Moreover, the Board stated:

In addition, the Board had especially noted the conclusions of the expert M.S. (see paragraph 63 above). They had been quoted by the High Court in its judgment of 22 April 2010 (see paragraphs 65–75 above). The Board found that this description of the first applicant was still accurate. In any event, it was decisive that X had established such a connection to his foster family that removing him would result in serious and permanent problems for him.

The Board further stated:

The Board went on to make another reference to the Supreme Court's (Høyesteretts) decision in Norsk Retstidende (Rt.) 2007, page 561 (see, also, paragraph 125 below) and found that the reasoning underlying the following passage from that judgment — reiterated in Aune v. Norway (no. 52502/07, § 37, 28 October 2010) — was also pertinent in the present case:

The Board considered these general reflections to be an accurate description of X's situation as well. An adoption would be in X's best interests. The condition in letter (b) of the third paragraph of section 4–20 of the Child Welfare Act (see paragraph 122 below) was deemed to be met.

Furthermore, the foster parents had been X's emergency foster parents and later his foster parents since his emergency placement when he was three weeks old. The Board stated that it had been documented that they had provided X with excellent care and that the attachment between them and X was good and close. The foster parents had a strong wish to adopt X. In the Board's opinion, the foster parents had demonstrated that they were suited to raise X as their own child. The conditions set out in letter (c) of the third paragraph of section 4–20 of the Child Welfare Act Section 4–20 (see paragraph 122 below) were deemed to be met.

In conclusion, the adoption would be in X's best interests. The Board took Article 8 of the Convention into consideration when making its decision.

On 19 December 2011 the first applicant appealed against the decision, claiming that the Board had made an incorrect evaluation of the evidence when deciding that she was unable to give X adequate care. She considered that it would be in X's best interests to be returned to her and argued that her situation and her caring skills had changed. She was now married and the couple had a baby. She submitted that the child welfare services in their new municipality assisted them in taking care of the baby. Moreover, in her view, removing X from the foster home would cause him problems only in the short term; no long-term problems could be expected. X had only stayed in the foster home for a short time, and it had not been the foster parents who had expressed a wish to adopt the child but the child welfare services who had taken that initiative. The first applicant also claimed that the visits between her and X had worked satisfactorily; if the child welfare services considered the contact sessions to be inadequate it was for them, as the stronger party, to take action to ensure that they be made satisfactory.

The municipality opposed the appeal and submitted in their response that X, who was then three years and four months old and had lived in the foster home since he was three weeks old, had become attached to the foster home. They maintained that it would cause serious and long-lasting problems for him if he were returned at the present time. He had no recollection of the period when he had been in his mother's care. In the municipality's view, the first applicant's ability to care for X had not changed since the High Court's judgment of 22 April 2010. The visits between X and the first applicant had not worked well. She had had outbursts during the visits and had left before the time was up. Afterwards X had reacted negatively. The first applicant and her mother had manifested a very negative attitude towards the child welfare services. The first applicant had claimed that the child welfare services assisted them in taking care of the baby, whereas the truth was that they had denied the child welfare services access to their home and, accordingly, no assistance measures had been implemented. It had, admittedly, been the child welfare services that had taken the initiative to petition for adoption, but this was their duty in a case such as the present. It was better for X to be offered the firm attachment to the foster home that an adoption would give him. The municipality stressed that it was not the first applicant's epilepsy or her IQ that gave reason to take measures, but her immaturity and actual lack of caring skills. The psychologist, K.M., engaged by the first applicant (see paragraph 98 below) should not be allowed to give evidence. He had videotaped a contact session without the parties' agreement; refused to send the video to the child welfare services; had never provided anything in writing, nor anything that had been quality-checked such as was the ordinary procedure for expert reports; the municipality had already reported him to the health supervision authorities and the Ethics Council of the Psychologists’ Association.

On 22 February 2012 the City Court, composed of one professional judge, one psychologist and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 133 below), upheld the decision after having held a hearing which lasted from 13 to 15 February 2012 and during which twenty-one witnesses were heard. Among the witnesses called by the child welfare services were the persons responsible for supervision of the foster home and the contact sessions, S.H. from the Children's and Young People's Psychiatric Out-Patient Clinic, expert psychologists B.S. and M.S. (see, inter alia, paragraphs 58, 61, 62 and 63 above) and the family consultant from the parent-child institution (see, for example, paragraph 24 above). Among the witnesses called by the first applicant were members of her family, her husband and members of his family, the medical director at the hospital where the first applicant had undergone surgery in 2005 (see paragraph 72 above) and specialist in psychology K.M. (see paragraph 97 above). The first applicant was present together with her legal aid counsel.

As a preliminary point in its judgment the City Court stated that during the hearing some time had been spent shedding light on the circumstances existing prior to the decision ordering X to be taken into care. The City Court stated that it would only examine the situation prior to the placement decision in so far as necessary to assess the situation at the time of its judgment appropriately.

The City Court went on to note that the first applicant's situation in some areas had improved during the last year. She had married in August 2011, her husband had a permanent job and they had a daughter, Y. It also noted that the child welfare services in the couple's current municipality were conducting an ongoing inquiry concerning the mother's ability to care for Y. A staff member of the child welfare services in that new municipality had testified at the oral hearing, stating that they had not received any reports of concern other than the one from the child welfare services in the first applicant's former municipality. As part of their inquiry they had made observations at the first applicant's home. They had observed many good aspects but also that the parents might need some help with routines and structure. The City Court found that this indicated that the child welfare services in the municipality to which the first applicant had moved considered that the parents could give Y adequate care if assisted by the child welfare services. Y was not a child with any special care needs.

However, on the basis of the evidence the situation was different with regard to X, whom several experts had described as a vulnerable child. The City Court referred in particular to a statement from a professional at the Children's and Young People's Psychiatric Out-Patient Clinic explaining that, as late as December 2011, X was easily stressed and needed a lot of quiet, security and support. If his emotional development in the future were to be sound, the carer would have to be aware of that and take it into account. When the first applicant gave evidence in court, she had clearly shown that she did not realise what challenges she would face if X were to be moved from the foster home. She could not see his vulnerability, her primary concern being that he should grow up ‘where he belonged’. The first applicant believed that returning him would be unproblematic and still did not understand why the child welfare services had had to intervene when he was placed in the emergency foster home. She had not wished to say anything about how she thought X was developing in the foster home. In the City Court's view, the first applicant would not be sufficiently able to see or understand X's special care needs, and if those needs were not met, there would be a considerable risk of abnormal development.

The City Court also took account of how the foster parents and supervisor had described X's emotional reactions after contact sessions with his mother, namely, his inconsolable crying and need for a lot of sleep. During the contact sessions X had repeatedly resisted contact with the first applicant and, as the sessions had progressed, reacted with what had been described as resignation. The City Court considered that a possible reason for that was that the boy was vulnerable to inexpedient interaction and information that was not adapted to his age and functioning. The first applicant's emotional outbursts in situations during the contact sessions, for example when X had sought out his foster mother and called her ‘Mummy’, were seen as potentially frightening (skremmende) and not conducive to X's sound development.

The City Court held that the presentation of evidence had ‘clearly shown’ that the ‘fundamental limitations’ (grunnleggende begrensningene) that had existed at the time of the High Court's judgment still existed. Nothing had emerged during the City Court's consideration of the case to indicate that the first applicant had developed a more positive attitude to the child welfare services or to the foster mother, beyond a statement made by her to the extent that she was willing to cooperate. She had snubbed the foster mother when she had said hello during the contact sessions and had never asked for information about X. The first applicant had left in frustration forty minutes before the last visit had been scheduled to end. Everyone who had been present during the contact sessions had described the atmosphere as unpleasant. The City Court considered that one possible reason why the first applicant's competence at contact sessions had not improved was that she struggled so much with her own feelings and with missing X that it made her incapable of considering the child's perspective and protecting him from her own emotional outbursts. An improvement was contingent upon her understanding X and his needs and on her being willing to work on herself and her own weaknesses. The first applicant had not shown any positive developments in her competence in contact situations throughout the three years she had had rights of contact. The fact that her parents had a remarkably negative attitude to the municipal child welfare services did not make it any easier for her.

The first applicant had claimed in court that she was a victim of injustice and that she would fight until X was returned to her. To shed light on her own situation, she had chosen to post her story on the Internet in June 2011 with a photograph of herself and X. In that article and several comments posted during the autumn of 2011, she had made serious accusations against the child welfare services and the foster parents — accusations which she had admitted in court were untrue. The first applicant did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term.

The City Court noted that the psychologist K.M. (see paragraphs 97–98 above), who had examined and treated the first applicant, had testified that she did not meet the criteria for any psychiatric diagnosis. He had counselled her in connection with the trauma inflicted on her by having her child taken away. The goal of the treatment had been to make the first applicant feel like a good mother. He believed that the previous assessments of the first applicant's ability to provide care had at that time been incorrect, and argued before the City Court that the best outcome for X would be to be returned to his biological mother. However, the City Court stated that the psychologist K.M.'s arguments had been based on research conducted in the 1960s, and found them to be incompatible with recent infant research. It noted that the other experts who had testified in court, including the psychologists B.S. and M.S., had advised against returning X to his mother, as this would be very harmful for him.

In conclusion thus far, the City Court agreed with the County Social Welfare Board that the first applicant had not changed in such a way as to indicate that it was highly probable that she would be able to provide X with proper care. It endorsed the Board's grounds, holding that the first applicant's clear limitations as a carer could not be mitigated by an adapted transitional scheme, assistance measures or support from her network. It did not find reason to consider other arguments regarding her ability to provide care in more detail, as returning X to her was in any case not an option owing to the serious problems it would cause him to be moved from the foster home. The City Court agreed at this point with the Board in its finding that X had developed such an attachment to his foster parents, his foster brother and the general foster home environment that it would lead to serious problems if he had to move. X's primary security and sense of belonging were in the foster home and he perceived the foster parents as his psychological parents. On those grounds the care order could not be revoked.

Turning to the issues of withdrawal of parental responsibilities and consent to adoption, the City Court stated at the outset that where a care order had been issued, it was in principle sufficient for removal of parental responsibilities that this be in the child's best interests. At the same time, it had been emphasised in several Supreme Court judgments that removal of parental responsibilities was a very invasive decision and that therefore strong reasons were required for making such a decision (see, inter alia, paragraph 125 below). The requirements in respect of adoption were even more stringent. However, the questions of withdrawal of parental responsibilities and consent to adoption had to be seen in conjunction, since the primary reason for withdrawing parental responsibilities would be to facilitate adoption. The court also took into consideration that if the first applicant retained her parental responsibilities, she might engage in conflicts in the future about the rights that such responsibility entailed, such as exposing the child on the Internet.

The City Court went on to declare that adoption could only be granted if the four conditions in the third paragraph of section 4–20 of the Child Welfare Act were met (see paragraph 122 below), and endorsed the Board's grounds for finding that such was the case regarding the criteria in letters (a), namely that it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, removing him could lead to serious problems for him; (c), namely that the persons applying for adoption had been X's foster parents and had shown themselves fit to bring him up as their own child; and (d), namely that the conditions for granting an adoption under the Adoption Act (see paragraph 132 below) were satisfied; as to letter (d), further documents had also been submitted to the court. In the present case the decisive factor was therefore whether adoption was in X's best interests under letter (b), and whether consent for adoption should be given on the basis of an overall assessment. Regarding that assessment, several Supreme Court judgments had stated that strong reasons must exist for consenting to adoption against the will of a biological parent. There must be a high degree of certainty that adoption would be in the child's best interests. It was also clear that the decision must be based not only on a concrete assessment, but also on general experience from child-psychology research. Reference was made to the Supreme Court's judgment in Rt. 2007, page 561 (see paragraph 125 below).

Applying the general principles to the instant case, the City Court first noted that X was at that time three and a half years old and had lived in his foster home since he was three weeks old. His fundamental attachment in the social and psychological sense was to his foster parents, and it would in any event be a long-term placement. X was moreover a vulnerable child, and adoption would help to strengthen his sense of belonging with his foster parents, whom he regarded as his parents. It was particularly important to a child's development to experience a secure and sound attachment to its psychological parents. Adoption would give X a sense of belonging and security in the years ahead for longer than the period a foster-home relationship would last. Practical considerations also indicated that persons who had care and control of a child and who in reality functioned as its parents should carry out the functions that derived from parental responsibilities.

The City Court noted that adoption meant that the legal ties to the biological family were severed. In its opinion, X, despite spending the first three weeks of his life with his mother and having many contact sessions, had not bonded psychologically with her. That had remained the case even though he had been told at a later stage that the first applicant had given birth to him.

Furthermore, the court took account of the fact that even if no further contact sessions were organised, the foster parents had taken a positive view of letting X contact his biological parent if he so wished.

Based on an overall assessment, the City Court found that it would be in X's best interests for the first applicant's parental responsibilities to be withdrawn and for the foster parents to be allowed to adopt him. The court believed that particularly weighty reasons existed for consenting to adoption in the present case.

The City Court stated, lastly, that since it had decided that X should be adopted, it was unable to decide on contact rights for the first applicant, since that question would be up to the foster parents to decide. It mentioned that section 4–20a of the Child Welfare Act provided a legal basis for determining rights to contact subsequent to adoption (see paragraph 122 below, where that provision is reiterated, and paragraph 128 below, on the ‘open adoption’ system). The City Court was not competent, however, to examine or determine such rights since its competence was dependent on a party to the case having made a request to that effect. In the instant case, neither of the parties had done so.

The Court observes that the applicants' application lodged with the Court on 12 April 2013 expressly targeted only the decision to withdraw the first applicant's parental responsibilities in respect of X and to authorise the latter's adoption by his foster parents (see the City Court's decision in paragraphs 107-12 above), not the concurrent conclusion reached on the same occasion that the conditions for lifting the care order concerning X had not been met (see paragraphs 99–106 above).

The Chamber considered that the decision not to lift the care order was nonetheless intrinsically related to the decision to deprive the first applicant of her parental responsibilities for X and to authorise the latter's adoption, and accordingly reviewed the former decision on the merits (see paragraphs 113-17 of the Chamber's judgment) regardless of the applicants' having focused expressly on the latter decision in their application and submissions before the Chamber.

The Grand Chamber notes that, while the respondent Government did not express disagreement with the Chamber's approach in this regard, the applicants made submissions before it indicating that their complaint also encompassed the decision not to lift the care order taken in the same proceedings.

The Grand Chamber observes that the refusal to lift the public care order is so closely related to and intertwined with the decision to remove the first applicant's parental responsibilities and to authorise adoption that it must be considered to be an aspect of her initial complaint to the Court. Indeed, as follows from the terms of section 4–20 of the Child Welfare Act (see paragraph 122 above), it was a prerequisite for application of that provision that public care continued to be justified. The Grand Chamber will therefore, as was done by the Chamber, include the decision not to lift the care order in its examination of whether the applicants' Article 8 rights have been violated.

The Chamber, emphasising that the complaint concerned the decision to deprive the first applicant of her parental responsibilities for X and to authorise his adoption — which resulted in the former losing legal guardianship over X — rather than facts subsequent to that decision, concluded that the first applicant was competent to lodge a complaint on behalf of the second applicant, X.

By way of preliminary objection before the Grand Chamber, the Government argued that the first applicant did not have standing to lodge an application on behalf of X. His adoptive parents would have had standing, but had not done so. The Court's acceptance of the mother's lodging of an application on her child's behalf in Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII, had been due to the particular circumstances of that case. In the instant case X's interests were also represented by his adoptive parents, who had intervened before the Court.

The applicants submitted that, according to the Court's established case law, a biological parent whose parental responsibilities had been withdrawn could submit a complaint against that withdrawal on behalf of the child in question. The first applicant accordingly had an unquestionable right to represent X in the instant case.

The Court observes that the disputed deprivation of parental responsibilities and the authorisation of adoption decided by the County Social Welfare Board on 8 December 2011 and upheld by the City Court on 22 February 2012, against which leave to appeal was refused by the appellate courts, undoubtedly led to the severance of the legal ties between the first and second applicants. The Court has held that this factor is not decisive for whether a parent may have locus standi to lodge an application on behalf of the child before the Court (see, for example, A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013). In that judgment, the Court further stated:

Since X was adopted, his only representatives under national law in respect of any issues concerning facts that occurred after the adoption had become final would be his adoptive parents. However, in respect of the adoption proceedings, conducted at a time when the first applicant still had full responsibilities for X, according to the Court's case-law, it is in principle in a child's interests to preserve family ties, save where weighty reasons exist to justify severing those ties (see, for example, A.K. and L. v. Croatia, cited above, § 49). In addition, on several occasions the Court has accepted in the context of Article 8 of the Convention that parents who did not have parental rights could apply to it on behalf of their minor children (see Scozzari and Giunta, cited above, §§ 138-39), the key criterion for the Court in these cases being the risk that some of the children's interests might not be brought to its attention and that they would be denied effective protection of their Convention rights (see mutatis mutandis, Lambert and Others v. France [GC], no. 46043/14, § 94, ECHR 2015 (extracts)).

Where an application has been lodged before it by a biological parent on behalf of his or her child, the situation may nonetheless be that the Court identifies conflicting interests between parent and child. A conflict of interest is relevant to the question of whether an application lodged by one person on behalf of another is admissible (see, for example, Kruškić v. Croatia (dec.), no. 10140/13, §§ 101-02, 25 November 2014). The Government have objected on such grounds in the instant case.

The Court considers that the question of a possible conflict of interest between the first and second applicants overlaps and is closely intertwined with those which it is called upon to examine when dealing with the complaint, formulated by the first applicant on her own behalf and on behalf of the second applicant, of violations of their right to respect for family life under Article 8. It discerns no such conflict of interest in the present case as would require it to dismiss the first applicant's application on behalf of the second applicant. Accordingly, the Government's objection must be dismissed.

The applicants submitted that in its judgment the Chamber had failed to take account of the particular context concerning Norway, namely that there was widespread criticism both nationally and internationally of the Norwegian child welfare system, indicating a serious systemic problem.

Under the Court's case-law, the margin-of-appreciation concept was, in the applicants' opinion, characterised by its casuistic nature. The margin to be accorded to the competent national authorities would vary in the light of the nature of the issues and the seriousness of the interests at stake. It was well established that in cases relating to placement of children in public care and adoption, the domestic authorities enjoyed a wide margin of appreciation. However, the Court tended to hide behind the margin-of-appreciation concept in a way which could to some extent undermine its control and functions.

Given the nature and seriousness of the interference at stake, the margin of appreciation ought to have been particularly narrow even in regard to the first child-welfare measures that had been taken. The Chamber majority had, moreover, not addressed the grounds for the extremely limited contact rights that had been granted from the beginning.

It was clearly established in the Court's case-law that the protection of the biological family was a priority. The instant case concerned a very young child; in such cases the authorities could act only on extraordinarily compelling grounds. X's particular vulnerability referred to by the domestic authorities in their decisions had never been supported by concrete and tangible evidence. Nor had his special care needs ever been explained, as pointed out by the minority in the Chamber.

Contact rights in Norway were notably restrictive and had been denounced by the Court in several cases. Considering that limited contact rights had a particularly detrimental impact in the first weeks, months and years of an infant's life, the facts of the instant case were particularly shocking. The first applicant's contact rights had been drastically limited without objective reasons and over a very short space of time. The imposition of extremely restricted access rights had destroyed any chance of family reunification and had made it impossible for X to forge natural bonds with the first applicant. Since the domestic authorities were directly responsible for the family breakdown, the argument that X had had no psychological bonds with his mother was unacceptable.

There had been a conflict between the first applicant, the foster mother and the child welfare services; a conflict of that nature was hardly exceptional and was readily understandable. The authorities had done absolutely nothing to pacify the first applicant's relations with the authorities and the foster mother. On the contrary, the foster mother had been present during all contact sessions, even though this had not been ordered or permitted by any of the domestic decisions. The positive obligation incumbent on the authorities under Article 8 of the Convention required that they proposed altering the terms of the contact rights or took decisions to that effect. The County Social Welfare Board and the City Court had focused only on the short-term consequences of a separation of X from his foster parents and had failed to consider the long-term impact on him of a permanent separation from his biological mother. The domestic authorities should have resorted to less intrusive measures.

The domestic authorities had not dealt with the case in good faith, quite the contrary. The alleged lack of caring skills on the part of the first applicant was firmly contradicted by the case-material. She could not be blamed for having asked the same questions several times when at the parent-child institution, and the institution's staff had threatened her with taking X into public care. While the expert reports contained global formulas such as ‘a severe lack of the abilities that are required in the mothering role’, ‘problems with emotional regulation’ and ‘inadequate basic parent skills’, these had not been substantiated. There had been no concrete and tangible evidence to justify the alleged fundamental limitations of the first applicant and her caring skills.

Old and new research on infant attachment suggested that the domestic authorities had failed to abide by basic and fundamental attachment principles to support reunification. They had not proved that returning X to the first applicant would cause him serious problems.

Overall, the Government invited the Grand Chamber to follow the approach of the Chamber majority, which had been correct and exemplary both in interpretation and application of Convention law. In contrast, they cautioned against the Chamber minority's attempt to carry out a ‘forensic examination of the facts’: reassessing facts that had been established by the national courts many years ago risked making the review arbitrary and was contrary to the Court's fourth-instance doctrine.

The Government argued that the domestic decision-making process had been fair and capable of safeguarding the applicants' rights under Article 8 of the Convention. The case had been reviewed independently and impartially by several levels of court.

The child's best interests, which had changed over time, were paramount. The first applicant sought to assert her right to family life, but although she had submitted a claim that had to be assessed under Article 8 of the Convention, it was in essence not so much a claim for the protection of existing ‘family life’, as an assertion of a biological right even under circumstances involving little or no actual attachment. The second applicant, X, also had a right under Article 8 to have his family life protected. The question therefore arose as to whether his ‘family life’ consisted of his biological ties to the first applicant or of the only family life that he had known, namely with the persons who had assumed care for him since he was three weeks old and who, in his mind, were his actual parents.

The case involved competing interests, but there was no consensus among the Contracting States as to the extent to which public authorities could interfere with family life in the interests of the well-being of a child, which suggested that they should be accorded a wider margin of appreciation. In the case under consideration, the reasons given by the domestic authorities for the impugned decisions had been relevant and sufficient. X had been subjected to very serious neglect during the first weeks of his life. The first applicant had subsequently failed to show any development with regard to her approach to him. X was vulnerable to a repetition of the same pattern of disturbances and reactions. If his care needs were not met, there was a risk of retraumatisation and a reversal of positive development with regard to his functioning. The first applicant had continued to appear ‘completely devoid of any such empathy and understanding’ that would be called for should X be returned to her.

The domestic authorities had complied with their positive obligations. The first applicant had not accepted help from the child welfare services. The authorities had also taken note of her recent marriage and second child, but those developments had not been sufficient to outweigh the necessity of the impugned measures. The Chamber minority had erroneously assumed that the inquiry made by the child welfare services in the municipality to which the first applicant had moved had disclosed ‘no shortcomings’.

The Chamber minority had disregarded Article 35 § 1 of the Convention and had ‘reopened’ earlier cases. In doing so, the minority had wrongfully applied the standard of a ‘stricter scrutiny’, not merely to the adoption decision, but also to the prior decisions relating to the taking into care of X. In addition, the minority had erred with respect to the facts. There had been a previous order awarding the minimum legal contact rights; further contact had not been precluded had this been in X's best interest. However, three experts had concluded that there had been no positive development whatsoever in the relationship between X and the first applicant. Rather than availing herself of the supportive measures, the first applicant had continued to use the contact sessions as an arena for cultivating her opinion that she had been a victim of injustice, instead of focusing on X. It had been primarily in the first applicant's and her family's view that there had been a ‘conflict’ between the first applicant, the child welfare services and the foster mother.

In short, the circumstances had been exceptional and the impugned decisions had clearly been motivated by an overriding requirement pertaining to X's best interests. The City Court had succeeded in its difficult and sensitive task of striking a fair balance between the relevant competing interests in a complex case.

The Government of Belgium stated that, while perceptions varied as to what manner of intervention with respect to child welfare was appropriate, Belgian legislation did not allow for adoption contrary to the biological parents' wishes. They further submitted that domestic authorities in cases such as the present one had to balance the best interests of the child against the interests of the biological parents. The Belgian Government went on to express a number of considerations as to the facts as they had been restated in the Chamber judgment, and highlighted that these differed from those in the case of Aune, cited above.

The Government of Bulgaria submitted that the child welfare case should be reviewed in its entirety because earlier decisions such as on placement in care and contact rights were intrinsically linked to the adoption proceedings. The Contracting Parties had a wide margin of appreciation when deciding on placement in public care, but a stricter scrutiny was called for in respect of any further limitations. When further limitations were involved, the Court was called upon not only to examine the procedural aspects of the decision-making process, but to go beyond the form, if necessary, and assess the substance of the case. Furthermore, the Bulgarian Government emphasised the positive duty to make concrete efforts to facilitate family reunification as soon as reasonably feasible and stressed that it was not enough to show that a child could be placed in a more beneficial environment for his upbringing.

The Government of the Czech Republic focused mainly on the approach of the respective authorities after emergency or permanent placements of children in foster care, since, they submitted, immediate active work with the biological families after the placement as well as the frequency of contact between the children and their biological parents appeared to be crucial factors in maintaining original family ties.

They further stressed that when assessing the compliance of authorities with their obligations under Article 8 of the Convention, the situation of all members of the family must be taken into account. There was a broad consensus, including in international law, that in all decisions concerning children, their best interests must be paramount. However, the ‘best interests’ principle was not designed to be a kind of ‘trump card’. Article 8 covered both the best interests of the child and the right of the parents to be assisted by the State in staying or being reunited with their children. The child welfare systems should not disregard the existence of the biological parents' rights, which should be duly taken into account and balanced against the best interests of the child, rather than minimised to the point of being ignored.

In addition, the Government of the Czech Republic emphasised the importance of contact between biological parents and their child in public care and other measures to reunite the family, inter alia, in order to ensure that a taking into care remained a temporary measure: restrictions on contact could be the starting point of the child's alienation from his or her biological family and, thus, of the impossibility for the family to reunite. In order for the effort to reunite the family to be serious, contact would have to occur several times a week, even under supervision or with assistance, and increase in time up to daily visits. If that were the case, it would be possible to talk about a slow establishment of a bond between the child and their biological parents. Speedy procedures were also required.

As to adoption, they maintained that the Court must strike a balance between the rights of the biological and the adoptive parents. The best interests of the child had to be assessed on an ad hoc basis that sometimes conflicted with other interests involved: there were other rights that had to be taken into account when determining whether or not a child should be considered adoptable.

The Government of Denmark argued that the domestic authorities had made a comprehensive and thorough evaluation of the matter, and the Court's assessment should be limited to an assessment of the decision-making process. The Court should not, as had the Chamber minority, carry out a ‘forensic examination of the facts’ and substitute its own assessment for that of the domestic courts, who had undertaken a balancing exercise in conformity with the criteria laid down in Article 8 of the Convention and the Court's jurisprudence.

The Chamber majority had made a correct assessment of the matter and there were no strong reasons why the Court should reassess the facts of the case as a fourth-instance tribunal several years after the incidents and based on documentary evidence presented to the Court. Reference was made to paragraph 28(c) of the Copenhagen Declaration. By expressing a dissenting opinion implying an entirely new assessment, the Chamber minority had attempted to don the mantle of a fourth-instance tribunal. The domestic authorities had clearly demonstrated that they had made a thorough assessment of the matter comprising a comprehensive balancing of opposing interests and had shown an understanding of the fact that the case concerned far-reaching intrusions into family and private life, and had also taken into account Article 8 of the Convention and loyally applied the criteria laid down in the Court's jurisprudence.

The Government of Italy submitted that the first applicant's interests did not necessarily align with those of X. If the Court wanted to ensure that X's interests were looked after, it could indicate to the respondent Government that counsel should be appointed for him. Moreover, the Italian Government argued that the decisions taken prior to that concerning X's adoption had become final and if the Court were to re-examine them now in connection with the complaint against the adoption decision, this would run counter to Article 35 of the Convention. Those prior decisions were only facts and ought to be treated as such.

In addition, the Italian Government emphasised that there was no European consensus on the topic of protecting parents and children's rights to respect for their family life; the Contracting Parties had a wide margin of appreciation. There were examples in the Court's jurisprudence of cases that had been approached in contradiction to the general principles usually set out by the Court, cases where the Court had taken on a fourth-instance role and examined whether there existed circumstances justifying the removal of the child — which was linked to the idea of a ‘forensic examination of the facts’ mentioned in the dissenting opinion in the Chamber judgment — as well as cases in which the Court had assumed that the best interests of the child coincided with those of his or her biological parents.

As to the best interests of the child, the Italian Government emphasised that in the relevant international materials a child was considered to be neglected when the parents did not maintain the necessary relations for his or her upbringing or development, or provide psychological and material assistance. In that connection the Italian Government raised issues with long-term care; children in care lived in limbo between biological parents and substitute carers, with resulting problems such as loyalty conflicts. References were made to Barnea and Caldararu v. Italy, no. 37931/15, 22 June 2017 and Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24 January 2017. Specialists and experts had emphasised that it was not a rule that biological family ties should be preserved, and that should only be the case where it represented a benefit to the child in the specific case. Only the national decision-makers could carry out the necessary assessment of that individual question. The Court did not have the necessary tools to be a fourth-instance tribunal and carry out a ‘forensic examination of the facts’.

The Government of Slovakia submitted that the Court's case-law was perfectly clear in that it primarily protected the biological family. Placing a child in foster care was an extreme measure and domestic authorities were required to adopt other measures if such were able to achieve the pursued aim. In particular, where a decision had been explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established. Simultaneously, taking a child into care should be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measure of implementation should be consistent with the ultimate aim of reuniting the natural parent with his or her child.

The Slovakian Government made further comments on a case in which Slovak citizens had been affected by child welfare measures and on international concern about child welfare measures adopted in the respondent State.

The Government of the United Kingdom submitted that in cases such as the present the Court ought in principle to focus on the adequacy of the procedures and sufficiency of the reasons adopted by the domestic authorities, rather than undertake a de novo analysis of the facts.

The Court had enumerated a number of identifiable factors that were likely to be relevant in a case such as the present. The UK Government noted, in particular, that permanency was an inherent part of any adoption decision, and that a balancing of interests was required, but guided by the paramountcy of the best interests of the child. The child's bonds to his or her de facto family were therefore to be considered, and Article 8 of the Convention did not require that domestic authorities make endless attempts at family reunification.

With respect to subsidiarity, the UK Government pointed to paragraph 28 of the Copenhagen Declaration. In cases such as the present, account should be taken of the relative expertise and involvement of the domestic authorities compared with the Court, the level of participation of the parties affected by the domestic process, and the level of consensus amongst Contracting States. The seriousness of the intervention at issue was also relevant, but a closer scrutiny could not entail a fresh assessment of the facts and particularly not if considerable time had elapsed since the decision under review. The Chamber minority could be understood as seeking to establish that the Court should undertake its own assessment of the underlying facts, rather than reviewing the decisions, particularly by its reference to the need for ‘a forensic examination of the facts’ and by indications that the dissenting judges envisaged that the Court itself should render a ‘substantive’ decision. The Grand Chamber was invited to reject this approach; as had been stated by the Chamber majority, the Court was required to consider whether the domestic authorities had adduced relevant and sufficient reasons for their decisions, but only the domestic authorities were in a position to determine what was in the child's best interests.

ADF International submitted that family was internationally recognised as the fundamental group of society and of particular importance to children. According to the Court's case-law, the Contracting Parties were required to organise their child welfare services in a manner aimed at facilitating family reunification, unless there was clear evidence of danger to the child's welfare. Furthermore, ADF International emphasised the duty to maintain contact between parents and children and to provide practical assistance to families.

The AIMMF emphasised the importance of personal participation of the natural parent, with legal assistance, before the domestic authorities, as had been the case for the first applicant. In addition to making some comments on the emergency decision, the organisation also highlighted the need for the child to have legal assistance in order to ensure that his or her best interests be protected.

Furthermore, the AIMMF submitted that the multi-disciplinary composition of the County Social Welfare Board and the City Court was a particularly important aspect that had also been highlighted by the Court in Paradiso and Campanelli, cited above, § 212. Decision-makers with multi-disciplinary competences formed a crucial aspect of a justice system adapted for children.

Moreover, the organisation emphasised the importance of bearing in mind that this case concerned X specifically, and solutions had to be found for him in the light of his vulnerability and history, including the experiences with contact sessions and his ties to the foster parents. Based on the Chamber judgment, the Chamber majority had shown a greater understanding of X's needs than what was reflected in the dissenting opinion. It was precisely on the basis of X's individual circumstances and history that the domestic authorities had arrived at the conclusion that it was in his best interests to strengthen his relations with the foster parents.

The AIRE Centre invited the Court to reiterate that the Convention was a ‘living instrument’ and that the evolving nature of children's rights under the Convention on the Rights of the Child had to be taken into account.

As to the assessment of the child's best interests, the organisation emphasised the importance of family unity and the child's right to be heard, as protected by Article 12 of the Convention on the Rights of the Child. With respect to the thresholds for removal and adoption of a child, the organisation reiterated the principles relevant to the questions of necessity and proportionality. It further pointed to the need for both legal certainty and flexibility, and highlighted ‘adoption simple’ or long-term fostering as alternatives to a ‘closed’ adoption. While it could be that in very exceptional circumstances it would not be in a child's best interests to retain contact with the birth parents (for example, when those parents had been operating a paedophile ring or engaging in child trafficking or serial child abuse), this conclusion should not flow automatically from the decision that the child needed a stable, permanent home that was not with the birth parents.

The AIRE Centre further submitted that children of parents with intellectual disabilities were commonly taken away as infants, with neglect such as slow weight gain, general failure to thrive, and lack of understanding of children's needs, as the primary concern. Parents with intellectual disabilities had the right to support and, inter alia, General Comment No. 14 (2013) to the Convention on the Rights of the Child stressed this positive obligation.

X's adoptive parents submitted that his representation before the Court raised a crucial question in the case. The principle of the best interests of the child had also to be applied to the procedural rules of representation. Under the Court's case-law, the rules relating to representation of children had been flexible and applied so as to ensure that all relevant interests would be brought to the Court's attention. Allowing the natural parents to represent a child who had a protected family life with foster or adoptive parents did not ensure an effective protection of the child's rights under the Convention.

According to the Court's case-law, ‘family life’ was essentially a question of fact. Striking a fair balance between the public interest and the many different private interests at play had been emphasised by the Court as particularly important in a case where the child had developed family ties with two different families. Reference was made to, inter alia, Moretti and Benedetti v. Italy, no. 16318/07, 27 April 2010. Due regard also had to be given to other ties that had formed, for instance with siblings.

Furthermore, the Court's case-law had established the principle of the best interests of the child as the paramount consideration and the decisive factor in cases relating to the placement in public care and adoption of children. The Grand Chamber should seek to combine the case-law concerning family life between the child and the foster parents and that concerning the paramountcy of the best interests of the child in the instant case.

The first paragraph of Article 8 of the Convention guarantees to everyone the right to respect for his or her family life. As is well established in the Court's case-law, the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by this provision. Any such interference constitutes a violation of this Article unless it is ‘in accordance with the law’, pursues an aim or aims that is or are legitimate under its second paragraph and can be regarded as ‘necessary in a democratic society’ (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII; and Johansen, cited above, § 52).

In determining whether the latter condition was fulfilled, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli, cited above, § 179). The notion of necessity further implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (ibid., § 181).

In so far as the family life of a child is concerned, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child's interests must come before all other considerations (see Jovanovic, cited above, § 77, and Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX).

At the same time, it should be noted that regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible (K. and T. v. Finland, cited above, § 178).

In instances where the respective interests of a child and those of the parents come into conflict, Article 8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see, for instance, Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003-VIII (extracts)), and the references therein).

Generally, the best interests of the child dictate, on the one hand, that the child's ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to ‘rebuild’ the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child's interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development (see, among many other authorities, Neulinger and Shuruk, cited above, § 136; Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII; and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). An important international consensus exists to the effect that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child (see Article 9 § 1 of the United Nations Convention on the Rights of the Child, recited in paragraph 134 above). In addition, it is incumbent on the Contracting States to put in place practical and effective procedural safeguards for the protection of the best interests of the child and to ensure their implementation (see the United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, paragraphs 85 and 87, quoted at paragraph 136 above).

Another guiding principle is that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see, for instance, Olsson v. Sweden (no. 1), 24 March 1988, § 81, Series A no. 130). The above-mentioned positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child (see, for example, K. and T. v. Finland, cited above, § 178). In this type of case the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live (see, inter alia, S.H. v. Italy, no. 52557/14, § 42, 13 October 2015). Thus, where the authorities are responsible for a situation of family breakdown because they have failed in their above-mentioned obligation, they may not base a decision to authorise adoption on the grounds of the absence of bonds between the parents and the child (see Pontes v. Portugal, no. 19554/09, §§ 92 and 99, 10 April 2012). Furthermore, the ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other (see Scozzari and Giunta, cited above, § 174; and Olsson (No. 1), cited above, § 81). However, when a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited (see K. and T. v. Finland, cited above, § 155).

As regards replacing a foster home arrangement with a more far-reaching measure such as deprivation of parental responsibilities and authorisation of adoption, with the consequence that the applicants' legal ties with the child are definitively severed, it is to be reiterated that ‘such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests’ (see, for example, Johansen, cited above, § 78, and Aune, cited above, § 66). It is in the very nature of adoption that no real prospects for rehabilitation or family reunification exist and that it is instead in the child's best interests that he or she be placed permanently in a new family (see R. and H. v. the United Kingdom, no. 35348/06, § 88, 31 May 2011).

In determining whether the reasons for the impugned measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the care of children and the rights of parents whose children have been taken into public care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, K. and T. v. Finland, cited above, § 154; and Johansen, cited above, § 64).

The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (see, for example, K. and T. v. Finland, cited above, § 155; and Johansen, cited above, § 64). However, this margin is not unfettered. For example, the Court has in certain instances attached weight to whether the authorities, before taking a child into public care, had first attempted to take less drastic measures, such as supportive or preventive ones, and whether these had proved unsuccessful (see, for example, Olsson (no. 1), cited above, §§ 72–74; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013, § 86; and Kutzner v. Germany, no. 46544/99, § 75, ECHR 2002-I). A stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K. and T. v. Finland, cited above, ibid., and Johansen, cited above, ibid.).

In cases relating to public-care measures, the Court will further have regard to the authorities’ decision-making process, to determine whether it has been conducted such as to secure that the views and interests of the natural parents are made known to and duly taken into account by the authorities and that they are able to exercise in due time any remedies available to them (see, for instance, W. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121, and Elsholz, cited above, § 52). What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see, for example, W. v. the United Kingdom, cited above, § 64; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001-V (extracts); Neulinger and Shuruk, cited above, § 139; and Y.C. v. the United Kingdom, no. 4547/10, § 138, 13 March 2012). From the foregoing considerations it follows that natural parents' exercise of judicial remedies with a view to obtaining family reunification with their child cannot as such be held against them. In addition, in cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. Equally, effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere effluxion of time (see W. v. the United Kingdom., cited above, § 65).

Whether the decision-making process sufficiently protected a parent's interests depends on the particular circumstances of each case (see, for example, Sommerfeld, cited above, § 68). With a view to its examination of the present instance, the Court observes that in the aforementioned case it was called upon to examine the issue of ordering a psychological report on the possibilities of establishing contact between the child and the applicant. It observed that as a general rule it was for the national courts to assess the evidence before them, including the means to ascertain the relevant facts (see Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B). It would be going too far to say that domestic courts are always required to involve a psychological expert on the issue of awarding contact to a parent not having custody, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sommerfeld, cited above, § 71).

It is common ground between the parties, and the Court finds it unequivocally established, that the impugned decisions taken in the proceedings instituted by the first applicant on 29 April 2011 (see paragraph 81 above), starting with the Board's decision of 8 December 2011 and ending with the Supreme Court Appeals Board's decision of 15 October 2012, entailed an interference with the applicants' right to respect for their family life under the first paragraph of Article 8. It is further undisputed that they were taken in accordance with the law, namely the Child Welfare Act (see paragraph 122 above), and pursued legitimate aims, namely the ‘protection of health or morals’ and ‘rights and freedoms’ of X. The Court sees no reason to hold otherwise. The interference thus fulfilled two of the three conditions of justification envisaged by the second paragraph of Article 8. The dispute in the present case relates to the third condition: whether the interference was ‘necessary in a democratic society’.

Bearing in mind the limitations on the scope of its examination as described in paragraphs 147 to 148 above, the Court will centre its examination on the City Court's review as reflected in its judgment of 22 February 2012, which ultimately gained legal force on 15 October 2012 when the Supreme Court Appeals Board dismissed the first applicant's appeal (see paragraphs 98–113, 118 and 121 above).

At the outset the Court notes that the City Court's bench was composed of a professional judge, a lay person and a psychologist. It held a three-day hearing that the first applicant attended together with her legal-aid counsel and in which twenty-one witnesses, including experts, gave testimony (see paragraph 98 above). In addition, the Court notes that the City Court acted as an appeal instance and that proceedings similar to those before that court had previously been conducted, and similarly extensive reasons given, by the County Social Welfare Board, which had also had a composition similar to that of the City Court (see paragraphs 89–95 above). The City Court's judgment was subject to review in leave-to-appeal proceedings before the High Court (see paragraphs 114-18 above), which were in turn examined by the Supreme Court Appeals Board (see paragraphs 119-21 above).

In its judgment the City Court decided not to lift the care order for X, to deprive the first applicant of her parental responsibilities for him and to authorise his adoption by his foster parents, in accordance with sections 4–21 and 4–20 of the Child Welfare Act respectively (see paragraph 122 above). While observing that the City Court relied on several grounds in order to justify its decisions, the Court notes that under the aforementioned provisions a central condition for the imposition of the impugned measures related to the natural parent's ability to assume care. Thus, pursuant to section 4–21, a precondition for revoking the care order was the high probability that the parent would be able to provide the child with proper care. Under section 4–20, consent to adoption could be given if it had to be regarded as probable that the parent would be permanently unable to provide the child with proper care.

The City Court assessed that issue primarily in the part of its reasoning devoted to the applicant's request to have the care order lifted, which can be summarised as follows. Her situation had improved in some areas (see paragraph 100 above). However, X was a vulnerable child who had shown emotional reactions in connection with the contact sessions (see paragraphs 101-02 above). The evidence adduced had clearly shown that the first applicant's fundamental limitations at the time of the High Court's judgment in the previous set of proceedings still persisted. She had not improved her ability to handle contact situations; she had affirmed that she would fight until the child was returned to her; and she had stated that she did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term (see paragraphs 103-04 above). Moreover, the experts who had testified in court, other than K.M., had advised against returning X to his mother (see paragraph 105 above). There was no reason to consider in further detail any other arguments regarding the first applicant's ability to provide care, since returning X to her was in any event not an option owing to the serious problems it would cause him to be moved from the foster home (see paragraph 106 above).

In deciding on the child welfare services' application for removal of the first applicant's parental responsibilities in respect of X and authorisation of the latter's adoption, the City Court endorsed the Board's reasoning regarding the alternative criteria in letter (a) of section 4–20 of the Child Welfare Act, namely that it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, removing him could cause him serious problems (see paragraph 108 above). In so far as the question of caring skills is concerned, the following findings of the Board are noteworthy in this context. There was nothing to indicate that the first applicant's caring skills had improved since the High Court's judgment of 22 April 2010. She had not realised that she had neglected X and was unable to focus on the child and what was best for him. Whilst note had been taken of the information that the first applicant had married and had had a second child, this was not decisive in respect of her capacity to care for X. He was a particularly vulnerable child and had experienced serious and life-threatening neglect during the first three weeks of his life. The Board had also taken account of the experience during the contact sessions. Moreover, since X had lived in the foster home for three years and did not know the first applicant, returning him to her would require a great capacity to empathise with and understand him and the problems that he would experience. Yet the first applicant and her family were completely devoid of any such empathy and understanding (see paragraph 90 above).

The Court is fully conscious of the primordial interest of the child in the decision-making process. However, the process leading to the withdrawal of parental responsibilities and consent to adoption shows that the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and his biological family (see paragraphs 207 and 208 above), but focused on the child's interests instead of trying to combine both sets of interests, and moreover did not seriously contemplate any possibility of the child's reunification with his biological family. In this context, the Court, in particular, is not persuaded that the competent domestic authorities duly considered the potential significance of the fact that at the time when the first applicant applied to have the care order lifted or, in the alternative, to be granted extended contact rights she was going through substantial changes in her life: in the same summer and autumn as the impugned proceedings commenced she married and had a second child. In this regard, as the City Court's decision was largely premised on an assessment of the first applicant's lack of capacity to provide care, the factual basis on which it relied in making that assessment appears to disclose several shortcomings in the decision-making process.

The Court notes that the decisions under consideration had been taken in a context where there had only been very limited contact between the first applicant and X. The Board, in its decision of 2 March 2009, and the High Court, in its judgment of 22 April 2010 (overturning the City Court's judgment of 19 August 2009), had relied on the consideration that it was most likely that the foster care arrangement would be a long-term one, and that X would grow up in the foster home (see paragraphs 31, 43 and 75 above). The High Court stated that contact sessions could thus serve as a means of maintaining contact between the mother and son, so that he would be familiar with his roots. The purpose was not to establish a relationship with a view to the child's future return to the care of his biological mother (ibid.). As regards the implementation of the contact arrangements, the Court also notes that these had not been particularly conducive to letting the first applicant freely bond with X, for example with regard to where the sessions had been held and who had been present. Although the contact sessions had often not worked well, it appears that little was done to try out alternative arrangements for implementing contact. In short, the Court considers that the sparse contact that had taken place between the applicants since X was taken into foster care had provided limited evidence from which to draw clear conclusions with respect to the first applicant's caring skills.

Furthermore, the Court regards it as significant that there were no updated expert reports since those that had been ordered during the previous proceedings between 2009 and 2010 relating to the taking into public care. Those were the report by psychologist B.S. and family therapist E.W.A, ordered by the child welfare services and concerning X's reactions to the contact sessions in the beginning of September 2009 (see paragraph 58 above), and the report by psychologist M.S., who had been appointed by the High Court on 15 November 2009 (see paragraph 61 above). The former dated back to 20 February 2010 and the latter to 3 March 2010 (see paragraphs 62 and 63 above respectively). When the City Court delivered its judgment on 22 February 2012, both reports were two years old. Indeed, alongside other witnesses such as family members, psychologists B.S. and M.S. also gave evidence during the hearing held by the City Court in 2012 (see paragraph 98 above). However, the two psychologists had not carried out any examinations since those prior to their reports dating back to early 2010 and only one of the reports, the one by psychologist M.S., had been based on observations of the interplay between the applicants, and then only on two occasions (see paragraph 63 above).

The Court does not overlook the fact that the child welfare services had sought information from the first applicant concerning her new family that she apparently refused to provide (see paragraphs 85 and 115 above). At the same time it notes that counsel for the first applicant had expressly requested that a new expert assessment be made but that the High Court dismissed the request (see paragraphs 114 and 118 above). Nor had the City Court ordered a new expert examination proprio motu in the course of the proceedings before it. While it would generally be for the domestic authorities to decide whether expert reports were needed (see, for example, Sommerfeld, cited above, § 71), the Court considers that the lack of a fresh expert examination substantially limited the factual assessment of the first applicant's new situation and her caring skills at the material time. In those circumstances, contrary to what the City Court seems to suggest, it could not reasonably be held against her that she had failed to appreciate that repeated legal proceedings could be harmful for the child in the long run (see paragraphs 104 and 218 above).

In addition, from the City Court's reasoning it transpires that in assessing the first applicant's caring skills it had paid particular regard to X's special care needs, seen in the light of his vulnerability. However, whereas X's vulnerability had formed a central reason for the initial decision to place him in foster care (see, for instance, paragraphs 31 and 42 above), the City Court's judgment contained no information on how that vulnerability could have continued despite the fact that he had lived in foster care since the age of three weeks. It also contained barely any analysis of the nature of his vulnerability, beyond a brief description by experts that X was easily stressed and needed a lot of quiet, security and support, and stating his resistance to and resignation toward having contact with the first applicant, notably when faced with her emotional outbursts (see paragraphs 101 to 102 above). In the view of the Court, having regard to the seriousness of the interests at stake, it was incumbent on the competent authorities to assess X's vulnerability in more detail in the proceedings under review.

Against this background, taking particular account of the limited evidence that could be drawn from the contact sessions that had been implemented (see paragraph 221 above), in conjunction with the failure — notwithstanding the first applicant's new family situation — to order a fresh expert examination into her capacity to provide proper care and the central importance of this factor in the City Court's assessment (see paragraphs 222-3 above) and also of the lack of reasoning with regard to X's continued vulnerability (see paragraph 224 above), the Court does not consider that the decision-making process leading to the impugned decision of 22 February 2012 was conducted so as to ensure that all views and interests of the applicants were duly taken into account. It is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake.

In the light of the above factors, the Court concludes that there has been a violation of Article 8 of the Convention in respect of both applicants.