EHRM, 22-12-2020, nr. 64639/16

The applicant maintained that the reasons adduced to justify the adoption of her child had not been relevant and sufficient, and not supported by sufficiently sound and weighty considerations. In her view, the Government had not realistically considered any options other than a permanent severance of the ties between her and her child and had not sought any alternatives to adoption.

Furthermore, the applicant submitted that the domestic authorities had not made a thorough assessment of the case comprising a comprehensive balancing of the opposing interests. Nor had they shown any understanding of the fact that the case concerned far-reaching intrusions into family and private life.

The foster mother had been hostile to the applicant throughout the proceedings and the adoption had been authorised in order to ease the foster parents' situation and stop the applicant's rights to have the case tried judicially. The hearing in the domestic courts had not been fair.

In sum, the applicant maintained that the domestic authorities had not performed an adequate balancing of interests, as mandated by the Court in its case-law; the domestic authorities had failed in their positive duties under Article 8 of the Convention; the applicant had not been given a fair trial; and the interference had not been necessary (as required by the second paragraph of Article 8).

The Government did not dispute that there had been an ‘interference’ with the applicant's right to respect for her family life, as guaranteed by Article 8 § 1 of the Convention. They asserted that the interference had pursued a legitimate aim and been in accordance with the law, under the second paragraph of that provision.

In the Government's view, the decision to allow X's foster parents to adopt her had been ‘necessary in a democratic society’ and proportionate under Article 8 § 2 of the Convention. The Government broadly agreed with the general principles set out in the Grand Chamber's judgment in the case of Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 202-13, 10 September 2019), but argued that the considerations relating to the best interests of the child, as outlined in that judgment, should be developed further. Among other things, the Government invited the Court to develop its view as to how to reconcile the positive duty to adopt measures to facilitate family reunification with the duty to ensure that a child is protected against harm being inflicted by his or her parents.

The Government also argued that the Grand Chamber in the case of Strand Lobben and Others (cited above) had adopted a balancing approach between conflicting interests of the child in question and those of the parents that had not taken sufficient account of the supremacy of the child's interest in being protected. Moreover, such a balancing approach might also, the Government maintained, not readily correspond with the respondent State's obligations pursuant to the United Nations Convention on the Rights of the Child.

In the instant case, the reasons given for the impugned measures — in particular the combination of the applicant's weak abilities in respect of providing emotional care and the child's particular vulnerability and sensibility — had clearly been relevant and sufficient. The measures had pertained to the child's best interests and the criterion prescribed by the Court's case-law of ‘very exceptional circumstances’ for acceptance of a definite severance of family ties had been met. It had been in the child's best interests to ensure stability, and only adoption could provide the requisite stability in her particular case. The Government recognised that the ultimate goal of reunification had been given less consideration in the early stages of the instant case, but setting that goal aside had at that point undeniably been in the best interests of the child.

The Government also maintained that the decision-making process had been fair and had afforded due respect to the applicant's rights. They emphasised, inter alia, in that regard that experts had been involved in the case at its different stages and that an updated report by a specialist psychologist, which had taken into account any developments in respect of the applicant's circumstances, had been delivered one month before the District Court's judgment.

In sum, the impugned interference had corresponded to a ‘pressing social need’ and been ‘proportionate to the legitimate aim pursued’.

The general principles applicable to cases involving child welfare measures (including measures such as those at issue in the present case) are well-established in the Court's case-law, and were extensively set out in the case of Strand Lobben and Others (cited above), to which reference is made. The principles have since been reiterated and applied in, inter alia, the cases of K.O. and V.M. v. Norway, no. 64808/16, §§ 59–60, 19 November 2019; A.S. v. Norway, no. 60371/15, §§ 59–61, 17 December 2019; Pedersen and Others v. Norway, no. 39710/15, § 60–62, 10 March 2020; and Hernehult v. Norway, no. 14652/16, § 61–63, 10 March 2020.

For the purpose of the present analysis, the Court reiterates that, in so far as the family life of a child is concerned, 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. 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 Strand Lobben and Others, cited above, § 204).

The Court reiterates, moreover, 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 of the Convention. Accordingly, in the event of the imposition of a public care order that restricts family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible. Moreover, any measure implementing such temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the relevant authorities with progressively increasing force 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. The ties between members of a family, and the prospect 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 (ibid., §§ 205 and 208). It is crucial that the contact regime, without exposing the child to any undue hardship, effectively supports the goal of reunification until — after careful consideration, and taking account of the authorities' positive duty to take measures to facilitate family reunification — the authorities are justified in concluding that the ultimate aim of reunification is no longer compatible with the best interests of the child. Family reunification cannot normally be expected to be sufficiently supported if there are intervals of weeks, or even months, between each contact session (see K.O. and V.M. v. Norway, cited above § 69).

Furthermore, the Court reiterates that 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. Moreover, family ties may only be severed in ‘very exceptional circumstances’ (see Strand Lobben and Others, cited above, §§ 206 and 207).

The Court also reiterates that the margin of appreciation to be accorded to the competent national authorities will vary according to 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 that 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. 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 the 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 will effectively be curtailed (ibid., § 211).

Starting with the decision-making process, the Court observes that the municipality's application for the applicant's parental responsibilities in respect of her daughter to be removed and the foster parents' application for adoption approved was first considered by the County Social Welfare Board, which held a meeting over two days that was attended by the applicant and her legal-aid lawyer, who gave testimony and presented other evidence. Several witnesses were heard by the Board, which was again composed of a jurist qualified to function as a professional judge, an expert and a lay person (see paragraph 34 above). Its decision contained lengthy and detailed reasoning (see paragraphs 35–40 above). The District Court, sitting as a bench of a similar composition, carried out a fresh examination of the case as a whole upon another meeting over several days, during which the applicant was given the same opportunity to present her case (see paragraph 42 above). The District Court also appointed an expert, who presented a report and evidence during the hearing (see paragraphs 41–42 above); the District Court then delivered a lengthy and detailed judgment (see paragraphs 43–46 above). That judgment was subsequently reviewed during leave-to-appeal proceedings, which were in turn briefly reviewed in the course of appeal proceedings before the Supreme Court (see paragraphs 47 and 48 above).

In the light of the above, the Court considers that the domestic decision-making process was comprehensive and that the applicant was afforded the requisite protection of her interests and was fully able to present her case. It is also satisfied that the authorities conducted an in-depth examination of the factors relevant to the case.

Turning to the question of whether the domestic authorities provided relevant and sufficient reasons for the impugned measures, the Court firstly notes that although the matter before it relates to the proceedings in which the domestic authorities decided to replace foster care with adoption (see paragraph 75 above), it is nonetheless incumbent on the Court to place those proceedings into context, which inevitably means that it must to some degree have regard to the earlier proceedings and decisions (see Strand Lobben and Others, cited above, § 148). The Court's consideration of the reasons cited for the measures brought before it must also be conducted in the light of the case as a whole (ibid., § 203). Furthermore, the Court observes that the District Court's judgment of 22 December 2015 became the final judgment on the merits after the applicant's attempts to lodge a further appeal had proved fruitless. While also taking into account the reasons cited by the County Social Welfare Board (with which the District Court expressly concurred — see paragraphs 35–40 and 43 above), the Court will therefore centre its examination on that judgment.

In its judgment, the District Court stated that it found it likely that the applicant, on the basis, inter alia, of her poor cognitive functioning, would be permanently incapable of providing her daughter with adequate care. Her poor cognitive functioning was also deemed to be coupled with other shortcomings (see paragraph 43 above). In addition, the District Court found that the applicant's daughter had become so attached to her foster home and foster parents that removing her from them could lead to serious problems for her. Moreover, the girl was considered to be a sensitive and vulnerable child who had displayed strong reactions to visits from the applicant. The applicant's poor caring skills were also noted in the part of the judgment that addressed the difficulties that would likely arise if her daughter were to be removed from her foster parents (see paragraph 44 above).

As to the child's best interests, the District Court stated that the issue was whether it was better for the applicant's daughter to be adopted than to grow up as a foster child. In its view, the girl had a strong need for her care situation to be clarified. She was sensitive and vulnerable and had displayed strong reactions to visits from the applicant (see paragraphs 44–45 above). The District Court also attached importance to (i) the applicant being unable to accept that she would be unable to regain the care for her daughter and (ii) the fact that there were grounds to believe that, were the girl not adopted, the applicant would institute further proceedings to have her returned or her contact rights extended. Moreover, although the District Court noted the importance of the ‘biological principle’, the bonds between the applicant and her daughter were already very limited. It was also assumed that the adoptive parents, while resisting an open adoption, would be open to contact between the applicant and her daughter if and when the daughter should so wish (see paragraph 45 above).

In the Court's view, the above reasons advanced by the District Court to justify the adoption were relevant to the question of necessity, according to its case-law (see, for example, Pedersen and Others, cited above, § 64, with further references to Johansen v. Norway (dec.), no. 12750/02, 10 October 2002, and Aune v. Norway, no. 52502/07, §§ 76–78, 28 October 2010).

As to whether the reasons provided by the District Court were also sufficient to justify the impugned measures, the Court firstly reiterates that it has previously refrained from attempting to untangle the opposing considerations inherent in questions concerning whether adoption or long-term foster care may be in the best interests of a child in a specific case (see, in particular, P., C. and S. v. the United Kingdom, no. 56547/00, § 136, ECHR 2002-VI; and Pedersen and Others, cited above, § 65), and is not inclined to take a different approach in respect of the instant case.

The Court finds reasons to stress, however, that an adoption will as a rule entail the severance of family ties to a degree that according to the Court's case-law is only allowed in very exceptional circumstances (see paragraph 80 above). That is so since it is in the very nature of adoption that no real prospects of 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, for example, R. and H. v. the United Kingdom, no. 35348/06, § 88, 31 May 2011). This is why stricter scrutiny is necessarily required in respect of such decisions (see paragraph 81 above). By contrast, domestic authorities are given a wide margin of appreciation in respect of care orders (see paragraph 81 above), as they are in principle temporary measures and do not in themselves entail a complete deprivation of family life. The Court observes that an essentially corresponding distinction is maintained in domestic law (see the Supreme Court's judgment of 15 September 2020 cited in paragraph 56 above). It is another matter that care orders may also be supplemented by other measures, such as extensive restrictions on contact between the parent and the child, or measures that completely deprive the biological family of their family life and are inconsistent with the aim of reuniting them to the effect that stricter standards must apply to them (see, for example, A.S. v. Norway, cited above, § 62; and Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996-III).

In the instant case, a complete severance of family ties de jure and de facto was at issue; proceeding to the question of whether the authorities proved that the circumstances had been so exceptional that measures with that effect had been justified, the Court notes, firstly, that it has no basis for calling into question the District Court's evidentiary assessments that the applicant's daughter was vulnerable or that she had settled well into the foster home. The Court considers, however, that the District Court provided no indications that those factors, while clearly relevant to the case, amounted to anything exceptional that could justify severing all ties between the applicant and her daughter in the instant case.

Furthermore, the Court observes that the District Court noted that importance should be attached to ‘the biological principle’ in general terms, but stated that the attachment between the applicant and her daughter was, however, very limited (see paragraph 45 above). In the Court's view, in so far as the applicant's daughter was placed in care when only nine days old and that very severe restrictions were placed on the applicant's contact rights when her daughter was in foster care, it could nonetheless not be overlooked that the applicant and her daughter were never given the opportunity to develop any real attachment.

In that regard the Court notes in particular that when the Board first issued a care order, it only granted the applicant the right to contact with her child four times yearly — each time for a period of only two hours (see paragraph 23 above). The extent of the contact rights was further reduced by the District Court on appeal (see paragraph 25 above). The very limited extent of the contact rights was due to the Board having deemed — owing to its consideration that the applicant's difficulties in providing emotional care were anchored in her mental functioning and personality traits — that the care order would be long-term, and the District Court also proceeded on that assumption (see paragraphs 22–23 and 25 above).

Neither has any indication been given to the Court that the domestic authorities took any real steps towards reconsidering that very restrictive contact regime during the time when the applicant's daughter was in foster care. The Court notes that when the applicant applied to have the contact regime reassessed, both the Board and the District Court continued to proceed on the basis that it was a matter that related to a long-term care order (see paragraphs 30 and 32 above). Nor are there any signs that the domestic authorities, at any point in time after the issuance of the care order, attempted in other ways to take positive measures in order to prevent the applicant and her daughter ending up permanently and completely estranged from each other. The Court acknowledges that domestic authorities, after careful consideration and also taking account of their positive duty to take measures to facilitate family reunification, may be justified in concluding that the ultimate aim of reunification is no longer compatible with the best interests of the child. However, in the instant case that goal appears effectively to have already been abandoned when the County Social Welfare Board first issued the care order in 2011 (see paragraphs 20–23 above). The level of contact was — apparently as a pure reflection of the overall conclusion that the placement would be long-term — kept at a minimum, and it transpires that the authorities did not make any genuine efforts to increase it by way of an attempt to seek the development of a family relationship between the applicant and her daughter. Indeed, the limited nature of the contact arrangements in the present case rendered impossible the development of any meaningful relationship whatsoever between the applicant and her daughter (compare Pedersen and Others, cited above, § 70).

The Court reiterates in connection with the above that, in addition to the general observation that 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 paragraph 79 above), it has emphasised more specifically that arrangements in which weeks — and even months — pass between the times that the parent and the child are allowed to meet cannot generally be considered to support the aim of reunification (see paragraph 79 above). In the instant case, the applicant and her daughter were — in contrast to the general starting point for the assessment of contact rights under Article 8 of the Convention — for several years allowed to meet for only two hours — in 2012 for only one hour — every three months (see paragraphs 23, 25 and 92 above).

Furthermore, the Court also has reservations regarding the emphasis placed by the District Court on the need to pre-empt the applicant from resorting in future to legal remedies by which to have the care order re-examined, or even merely to have the contact rights schedule revised (see paragraph 45 above), given the restrictions on contact that had been imposed until then. Although there might indeed be instances when repeated legal proceedings, owing to the particular circumstances of a case, may harm the child concerned and therefore be taken into account, a biological parent's exercise of judicial remedies cannot automatically count as a factor in favour of adoption (see Strand Lobben and Others, cited above, §§ 212 and 223). The Court notes in this regard that biological parents' procedural rights, including their right to have access to proceedings in order to have a care order lifted or restrictions on contact with their child relaxed, form an integral part of their right to respect for their family life afforded by Article 8 of the Convention. It also observes that any need to limit biological parents' futile or damaging use of legal remedies may be dealt with as a procedural issue. That is, for example, already demonstrated by domestic law in respect of applications for care orders to be lifted, where there are particular procedural conditions regarding the use of such remedies (see paragraph 51 above).

In its assessment of the above, the Court bears in mind the fact that the adoption decision brought before it was essentially grounded in an assessment of what would be in the best interests of the applicant's daughter in the future; it was therefore the fact that ties between the applicant and her daughter were minimal at the time of the adoption application — and not the reason for those limited ties — that formed the basis of the District Court's argument in favour of authorising the adoption. It has in this context also noted the Supreme Court's considerations in the order (HR-2020-661-S) of 27 March 2020, referred to above (see paragraph 55), and reiterates, moreover, that the proceedings complained of did not concern a claim to have the care order lifted. The issue to be decided by the District Court was thus limited to whether the girl's foster care should be replaced by adoption.

Within that context, the Court has no basis for casting doubt on the validity of the general observation that the lack of any real ties between the child and his or her biological parent may often reduce the negative factual and emotional consequences of adoption, both for the child and the parent. However, in the light of the very limited contact rights that were granted and the complete absence of any other attempts over the years of foster care to counter the risk that the biological family would end up permanently broken, the Court nonetheless does not consider in the instant case that the domestic authorities could — in the sense that the respondent State nevertheless acted in accordance with its positive obligations under Article 8 to take measures to preserve family bonds to the extent reasonably feasible — have based the adoption decision on the absence of bonds between the parents and the child (see, mutatis mutandis, Pontes v. Portugal, no. 19554/09, §§ 92 and 99, 10 April 2012). It notes in that respect that the option of an ‘open adoption’ — one in which post-adoption contact visits could be provided for — was not on offer, as the foster parents had not consented to it (see paragraph 45 above).

The Court is mindful that its approach to cases such as the instant one — namely its practice of considering each case within its own context, in the light of the case as a whole and in retrospect (see paragraph 84 above) — may systemically differ from the approach followed by domestic child care services and authorities (including the domestic courts), which have to decide what to do with the child (and his or her family) on the basis of the child's and the family's situation at the time at which the decision in question is taken and with an eye primarily on the future (see, for example, Hernehult, cited above, §§ 75–76). This is a consequence of the distinctive perspectives attached to each respective role — the role of the Court being to assess, within the scope of the application lodged with it, whether the organs of the respondent State acted in accordance with the State's obligations under the Convention. The Court therefore also fully concurs with the emphasis placed by the Supreme Court in its decision cited above (see paragraph 55) on the crucial importance, from the very outset, of the child welfare services, the County Social Welfare Board and, thereafter, the domestic courts, considering all the relevant requirements under Article 8 of the Convention, in order to avoid errors and shortcomings that cannot readily be repaired at a later stage.

On the basis of the above, the Court considers that the proceedings through which the adoption of the applicant's daughter was ultimately authorised and the reasons advanced for the measures decided in those proceedings reflected the fact that (i) insufficient importance was attached to the aim that placement in care be temporary and an affected family be reunited, and (ii) insufficient regard was paid to the positive duty to take measures to preserve family bonds to the extent reasonably feasible.

For those reasons, the Court concludes that there has been a violation of Article 8 of the Convention.