EHRM, 10-12-2021, nr. 15379/16

The case originated in an application (no. 15379/16) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Somali national, Ms Mariya Abdi Ibrahim, on 17 March 2016.

The applicant, who had been granted legal aid, was represented by Ms A. Lutina, a lawyer practising in Oslo. The Norwegian Government (‘the Government’) were represented by their Agent, Mr M. Emberland, of the Attorney General's Office (Civil Matters).

The applicant alleged that the fact of depriving her of parental responsibility in respect of her son, X, who had been placed in foster care with a family holding different religious beliefs to hers, and of authorising X's adoption by that family, had entailed violations of Articles 8 and 9 of the Convention.

On 20 September 2016 the application was communicated to the Government. Leave was granted to the Government of the Czech Republic to intervene in the written procedure, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.

On 17 December 2019 a Chamber of the Second Section, composed of Robert Spano, President, Marko Bošnjak, Valeriu Griţco, Egidijus Kūris, Ivana Jelić, Arnfinn Bårdsen and Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, unanimously considered that all of the applicant's grievances fell to be examined under Article 8 of the Convention; declared the complaint under Article 8 admissible, and held that there had been a violation of that provision.

On 17 March 2020 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. She also requested that the Chamber's judgment be revised.

On 21 April 2020 the Chamber dismissed the request for revision of its judgment.

On 11 May 2020 the panel of the Grand Chamber granted the request for referral to the Grand Chamber.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.

The applicant and the Government each filed observations (Rule 59 § 1) on the merits of the case.

The President of the Grand Chamber granted leave to the Governments of Denmark and Turkey, to the AIRE Centre and to X's adoptive parents to intervene in the written procedure. The Government of the Czech Republic were informed that the leave granted to intervene before the Chamber continued before the Grand Chamber. The said third-parties made submissions before the Grand Chamber.

A hearing took place in public in the Human Rights Building, Strasbourg, on 27 January 2021 (Rule 59 § 3); on account of the public-health crisis resulting from the Covid-19 pandemic, it was held via video-conference. The webcast of the hearing was made public on the Court's Internet site on the following day.

There appeared before the Court:

The Court heard addresses by Ms Lutina and Mr Emberland and their replies to questions put by the judges.

The applicant was born in Somalia in 1993. In 2009 she left home, unaccompanied, while pregnant with a child, X, whose father came from the same city as the applicant. They were unmarried and he did not acknowledge paternity. The applicant went to her uncle's home in Kenya and in November 2009 she gave birth there to her son, X, in traumatic circumstances. She was herself still a minor when she became pregnant and gave birth.

In February 2010 the applicant left Kenya with X. They went first to Sweden, before entering Norway and applying for asylum there that same month. The applicant was granted a temporary residence permit with refugee status in Norway by a decision dated 4 June 2010. She has two cousins in Norway.

In order for the applicant to be assisted in caring for X, she and X moved into a residential parent-child centre (‘the parent-child institution’) on 21 September 2010. On 28 September 2010 the institution sent a ‘notification of concern’ (‘bekymringsmelding’) to the child welfare services, as it considered X to be at risk of harm in the applicant's care. The notification concluded as follows:

According to the institution, the applicant had been informed of these concerns via an interpreter on the previous day.

It emerges from records of phone calls contained in the child welfare service's case file that various enquiries were made to ascertain whether there were any Somali families available which could act as foster parents, both before the applicant and X entered the parent-child institution and when their stay there ended.

X was then placed in emergency foster care with a Norwegian woman, having spent a week in the parent-child institution. The minutes of a meeting held on 11 October 2010 in the emergency foster home indicate that the foster care services were due to meet with a Somali woman whom the applicant described as her sister and who wished to act as a foster parent for X. The minutes also indicate that the foster care services were to clarify whether another childless Somali couple could be candidates. They further state that these services would establish whether there were any Somali families in the relevant region of Norway who had completed the ‘PRIDE’ course (‘Parents, Resources, Information, Development, Education’ — a training programme for, among others, persons who wished to become foster parents) and who would be willing to consider the task of acting as foster parents for X. The Government have in addition presented to the Court a document of 13 August 2020, explaining that the child welfare services had also examined the possibility of placing X with an Afghan Muslim family which had completed the ‘PRIDE’ course, but that they had become aware of major cultural differences between Somalians and Afghans and had decided not to do so.

The above-mentioned meeting with the Somali woman was held on 14 October 2010. The foster care services' subsequent report notes that she gave the impression of being a mother who took good care of her two children. However, her accommodation was considered unsuitable for an additional child, and the foster care services was unsure that she had the additional time and energy that a foster child would need, given that she was a single mother with two young children.

On 6 November 2010 the municipality applied to the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) for a care order. The applicant opposed the application and lodged alternative claims for X to be placed in her cousin's home or in a Somali or Muslim foster home.

In its decision of 10 December 2010, the Board found it clear that the conditions for issuing a care order in respect of X had been met. It also found that the decision about which foster home X should be placed in was to be left to the authorities.

With regard to the care order, the Board considered that it had been substantiated with a high degree of probability that, at the time of its decision, X was a child with abnormal psychological development, and that he suffered from an attachment disorder caused by the applicant's inability to meet his need for physical and psychological security. The evidence showed that X was an emotionally damaged child who had not developed a secure relationship with his mother, and that he was, at the time, a psychologically vulnerable child with exceptional care needs. The applicant had been provided with considerable help and guidance, but none of it had had any significant effect on her competence as a caregiver. In the Board's view, the case clearly involved gross neglect that could be deemed unacceptable by any reasonable standard, regardless of ethnicity, culture and language. In the Board's view, assistance measures as an alternative to taking X into care had to be deemed inexpedient in terms of protecting him from further neglect, as the Board found it established that the applicant had proved unreceptive to guidance (lite veiledbar) and had made it clear that she would not cooperate with the child welfare services unless the boy was first returned to her care.

In respect of contact rights, the Board held that four short contact sessions a year would be appropriate. It had noted a statement from the emergency foster mother to the effect that X had been very agitated at night after the sessions with his mother; he had not slept well, had woken up and cried intensely, had seemed scared, and it had been difficult to re-establish contact with him and calm him down. She stated that this behaviour could continue for two or three nights, and the Board found it likely that this corresponded to the anxiety that the staff at the parent-child institution (see paragraph 15 above) had observed in X when the applicant was present. The Board deemed it important to avoid such reactions after contact sessions, and stated that it was necessary to ensure that X's development in the foster home was not delayed by the fact of requiring him constantly to attend contact sessions which left him very disturbed; nor should the contact sessions be too long. Moreover, in the Board's view, supervision during contact sessions was definitely necessary in order to guarantee X's physical and mental security. The child welfare services were therefore authorised to supervise the contact sessions in the manner they considered most appropriate.

With regard to the choice of foster home, the Board considered that the primary goal had to be to find a home in which X's extraordinary need for psychological security and for a stable life could be met. The Board held that the emotional damage suffered to date by X was such that an ‘enhanced’ foster home (an arrangement whereby the foster home was given extra assistance and support) would probably be required, and his age and developmental stage indicated to the Board that it was urgent that a foster home be found in which his needs could be fully met. The Board noted that X should be moved as soon as possible from the emergency foster home to a foster family to which he could develop the best possible attachment, and that the longer he stayed in the emergency foster home, the more stressful that subsequent move would be.

The Board considered that X's negative attachment to the applicant was an argument against placing him with her cousin. Experience with the applicant to date implied that she would not understand the purpose of limited contact if her son were to stay with a relative, and the Board presumed that it would hinder X's positive development if the applicant were not kept away from the foster home. In addition, the cousin had had no contact with the applicant until very recently and already had substantial care duties, as she was a single parent with two children.

Although section 4–15 of the Child Welfare Act stated that due account should be taken of a child's ethnic, religious, cultural and linguistic background when choosing a placement (see paragraph 61 below), the Board considered it more important in the present case that the primary consideration mentioned in that same section be addressed. Specifically, the point of departure of the Child Welfare Act was that a placement should be chosen on the basis of the child's distinctive nature and need for care and training in a stable environment. As the Board had already mentioned, X was by all accounts an emotionally damaged child and consideration of his best interests indicated that starting the essential work of rectifying this state of affairs in a new care situation should be the main priority.

The Board stated that it would be ideal if the child welfare services, in cooperation with the Office for Children, Youth and Family Affairs (Barne-, ungdoms- og familieetaten — Bufetat), managed to find a foster home that could be deemed suitable for this task and that could also correspond to the specific ethnic, religious, cultural and linguistic considerations in the case. Thus, the Board expected this option to be explored in so far as time would permit but left the further work of choosing a placement to the child welfare services. If an ethnically Norwegian foster home was chosen, efforts had to be made to give X a desirable knowledge of his mother's — the applicant's — language, culture and religion, as far as this could be done without it being an obstacle to his positive development in the foster home.

X was placed in care with a Norwegian, Christian, family, members of the Mission Covenant Church of Norway and the Norwegian Missionary Society, on 13 December 2010. Records from a meeting with the applicant three days later, on 16 December 2010, contain the following notes:

The applicant appealed against the Board's decision to the District Court. During the hearing before that court she dropped the alternative claim for X to be placed in a Somali or Muslim foster home, should her principal claim, contesting the care order, be unsuccessful.

In its judgment of 6 September 2011, the District Court upheld the Board's decision in respect of the care order but altered the decision on contact rights, fixing these at one hour, six times per year. It based its decision with regard to contact rights on, inter alia, the need for X to keep in touch with his cultural background and its opinion that, at the relevant time, it was uncertain whether the applicant's care skills would improve and, accordingly, whether the care order would be long-term. At the same time, it found that X's vulnerability and need for peace and stability in his care situation did not suggest that frequent contact should be granted. There is no information about the applicant having appealed against the District Court's judgment.

On 27 June 2012 a meeting was held between the applicant and the child welfare services. The minutes of that meeting include the following information:

On 3 October 2012 the child welfare services sent a letter to the applicant, stating:

On 11 September 2013 the child welfare services applied to the County Social Welfare Board for an order to withdraw the applicant's parental responsibility in respect of X, and for consent to his adoption by the foster parents. An alternative request, that the applicant be refused contact with X, was also lodged.

In connection with the foster parents' application for adoption, the child welfare services prepared a report on the adoption applicants, dated 11 October 2013. Under the heading ‘Motive for adopting’, the following information, inter alia, was included:

The Board, composed of one lawyer qualified to act as a professional judge, one psychologist and one lay person, heard the case from 27 to 28 February 2014. The meeting was attended by the municipality's representative and its counsel, and by the applicant and her counsel. Testimony was given by twelve witnesses and an expert, K.P.

In its decision of 21 March 2014 the Board granted the child welfare services' principal request. It found that X had become so attached to his foster parents that removing him from their home could lead to serious problems; it also found that the applicant would be permanently unable to provide him with proper care. Based on an overall assessment of the general and individual factors in the case, the Board found that there were particularly compelling reasons for granting consent to the foster parents to adopt X. In its view, adoption would be in X's best interests, in that it would create stability and security for him. Adoption would also be more effective than long-term foster placement in contributing to his recovery at the personality level (tilheling på det personlighetsmessige plan). X's rights would be strengthened through adoption and he would gain a stronger identity as a member of a caring family.

The Board stated that it considered it very important for the development of X's identity, and for his understanding of his own life situation, that he be given information about his biological family in due course. The foster parents had expressed their willingness to contribute to providing X with information about his biological mother and her culture when he showed sufficient maturity to be able to benefit from such information. X's identity would not be kept hidden from him, nor would the foster parents try to hide him should they happen to meet the applicant in the street.

Furthermore, the Board stated that X had already been placed in an ethnically Norwegian foster home. The foster parents were active Christians. He had lived in this environment for more than three years, and this was where he would grow up. His relationship with his mother had been broken off so early that one could not say that the placement had entailed a break with his culture and religion. It had involved a break with his cultural and religious heritage, however. Contact with his mother in the years ahead could potentially help to promote identity-forming values related to ethnicity in X. However, this factor could not be given decisive weight as an argument against adoption. Since contact with the applicant reactivated dysfunctional responses in X, the importance of the cultural aspect had to be deemed as being of secondary importance in relation to safeguarding X's fundamental personality development.

In addition, the Board considered that adoption would place X on an equal footing with the foster parents' four biological children, in particular one of them who still lived at their home and with whom X was accordingly growing up. Equal status with the latter could promote X's feeling of equality, and this was an important consideration in favour of allowing the foster parents to adopt him.

Following an appeal by the applicant against the Board's decision, the District Court appointed a psychological expert, S.H.G. In his report of 13 October 2014, the psychologist stated, inter alia, under the heading ‘The present situation’:

In a chapter entitled ‘Report on interviews with and observation of the mother, child, foster parents, and information from collateral sources’, the following information, inter alia, was included under the heading ‘Visit to the foster parents' home’:

The expert recommended that the District Court withhold consent to the adoption, and that the amount of access between the applicant and X should be gradually increased.

The District Court held a hearing from 4 to 6 November 2014. The court's bench was composed of one professional judge, one psychologist and one lay person. Eight witnesses were called. The court-appointed expert attended and was present throughout the hearing and testified after the other evidence had been presented.

In its judgment of 21 November 2014, the District Court upheld the Board's decision. The District Court endorsed the Board's grounds for depriving the applicant of parental responsibility and granting consent for adoption, and referred to the Board's reasons, but with some clarifications and additions. The District Court concurred with the assessments of psychologist K.P., who had been appointed as an expert before the Board (see paragraph 34 above), and not with those of S.H.G., who had been appointed as an expert by the District Court (see paragraph 39 above).

Within the reasons as to why the District Court concluded that an adoption would pertain to X's best interest, the judgment stated, inter alia, that X had already been placed in an ethnically Norwegian foster home with a family of practising Christians. He had lived in that foster home for almost four years, and this was relevant to the District Court's assessment as to where he would grow up. The District Court considered that the break with X's cultural heritage had occurred when he was first taken into care.

On a further appeal by the applicant, the High Court held a hearing from 12 to 13 May 2015. The High Court's bench comprised three professional judges, one psychologist and one lay person. The applicant attended, together with her counsel. Eight witnesses gave evidence, of whom four, including psychologists S.H.G. and K.P., gave expert testimony. Before the High Court, the applicant acknowledged that X had become so attached to his foster parents that a return to her would be difficult. She also accepted that X had reacted badly to the contact sessions and accepted that contact should possibly be avoided at certain periods in the future. However, she would not apply for his return and she argued that at that specific moment it could not be concluded with certainty that any contact with her in the future would be against X's best interests. In particular, she argued that his need to keep in touch with his cultural and religious roots indicated that the possibility for future contact should be kept open.

In its judgment of 27 May 2015 the High Court stated that the parties agreed that X had become so attached to his foster parents that removing him could lead to serious problems, and that the High Court bench agreed unanimously with the parties on this point. It went on to reiterate that X had been placed with the foster parents when he was one year old and had, at the time of its judgment, been with them for four and a half years. Before this, he had spent two and a half months in an emergency foster home. He had lived with his biological mother for only the first ten months of his life. He regarded the foster parents as his parents and all the available information indicated that he was strongly attached to them.

In addition, X was a vulnerable child with special care needs. It had to be assumed that he would be at particular risk of serious harm if he were removed from the environment he was used to and placed in the care of his biological mother, with whom he had only had sporadic contact. Since a return to the applicant was in any event not being envisaged (ei tilbakeføring under alle omstende [er] uaktuell), it was unnecessary to decide on whether the applicant would be permanently incapable of providing appropriate care for him.

The decision in the case rested on an assessment of whether adoption would be in X's best interests. A majority in the High Court concluded that it would, and generally agreed with the grounds given for this finding in the Board's decision and the District Court's judgment.

In the majority's view, there were several risk factors relating to the applicant's ability to provide proper care. In addition, many (fleire) persons had observed that the applicant had had serious difficulties caring for X during the first year in Norway. By the time of the High Court judgment, the applicant was older and seemed more mature. Given her age and history, it was understandable that she had experienced considerable challenges in caring for X. Her son had to be regarded as a child with special care needs and was possibly suffering from early attachment disorder. The majority found that he had been subjected to gross neglect, both physically and emotionally. The parent-child institution had indicated that he had been in physical danger several times while the applicant and X were staying there. Another witness, M.L., had also been concerned about the applicant's ability to care for X on a practical level. In the High Court's view, the most important aspect of the neglect nonetheless appeared to be the lack of emotional contact and security.

The High Court's majority stated that these findings might reflect the applicant's psychological functioning and her life circumstances during the pregnancy, birth and postnatal period, but that this had nevertheless created a serious situation for X and his development. He had displayed trauma reactions on seeing his mother again. These reactions following contact sessions could, for instance, include screaming for several hours at a time, or being agitated and anxious for several days. Similar reactions had also been noted at the kindergarten. His reactions had been observed both during and after the contact sessions. The hospital had also made a statement about them. The majority disagreed with psychologist S.H.G., who had considered that X's reactions could be related to his emergency placement in care in 2010, as it found it unlikely that a separation from his biological mother when X had been ten months old could give rise to such reactions later in his life.

X had become calmer after the contact sessions had been discontinued in 2013. Since then, he had apparently only met the applicant twice. He had found these emotional outbursts after contact sessions with the applicant to be very stressful. He was still vulnerable to noise, large crowds and too many stimuli. This indicated that he was highly sensitive, which was to be expected in someone who was displaying reactions to trauma.

In the majority's view, X needed to feel as secure as possible in his relationships. He needed stability, calm and continuity in the place where he lived at the time, namely in the foster home. The stronger the psychological development that could be secured, the better equipped he would be to deal with any identity issues that might arise during adolescence. All the available information suggested that X had a strong and fundamental attachment to his foster parents and foster family. Great emphasis had to be placed on this relationship, in line with the case-law of the Supreme Court.

The considerations of ensuring that a particularly vulnerable child would have a continued attachment to an environment in which he was deeply rooted had to be weighed against other relevant weighty considerations. The High Court reiterated that, in all cases, adoption entailed a breach of the biological principle, which was a major element in any decision. In the instant case, the foster parents had been unwilling to accept an ‘open adoption’, with future contact visits foreseen for the applicant, and there were additional aspects in the case related to ethnicity, culture and religion, and religious conversion. The fact that the applicant was a Muslim and the intended adoptive parents Christian raised special issues, which were further highlighted by the fact that the latter were active Christians who intended to baptise the adopted child.

An expert witness — N.S., a specialist in religious studies — had stated before the High Court that in Islam, the children of Muslims were regarded as Muslims as long as they had not been, for example, baptised. The parties had referred to a White Paper from a Government-appointed committee (NOU 2012: 5 Bedre beskyttelse av barns utvikling), containing an assessment of adoption from a cultural and Islamic perspective. The White Paper stated that religion could be an obstacle to adoption for practicing Muslim families, since Islam had a general prohibition against adoption in the sense of making children born to other biological parents one's own. Elsewhere, the White Paper had noted that various Muslim countries and Muslim schools of law had differing views on adoption, but they all had a prohibition against breaking the ties with the adoptive child's biological family. The White Paper had concluded that the child welfare services faced a particular challenge when considering adoption as a child welfare measure for Muslim children. One of the members of the committee which drafted the White Paper had testified as an expert witness before the High Court, and stated that the committee had not wished to make recommendations one way or another with regard to the above observations; she had emphasised that each case was to be assessed on the basis of the child's needs.

Based on international law sources, the High Court had not found that any prohibition could be inferred against the adoption of children from a Muslim background in Norway. Article 20(3) of the United Nations Convention on the Rights of the Child stated that when possible solutions, including adoption, were assessed, ‘due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background’ (see paragraph 73 below). The best interests of the child should be a primary consideration in all actions and decisions concerning children, pursuant to Article 3(1) of the United Nations Convention on the Rights of the Child and the second paragraph of Article 104 of the Norwegian Constitution (see paragraphs 73 and 59 below, respectively). In adoption cases, the child's best interests should be the paramount consideration, under Article 21 of the United Nations Convention on the Rights of the Child (see paragraph 73 below).

The High Court noted that the County Social Welfare Board had commented, in the context of the care order, on the choice of foster home, based on ethnic, cultural and religious considerations. Further information about which assessments had been carried out by the child welfare services when X had been placed in a foster home with ethnically Norwegian parents had not emerged during the presentation of evidence, but the High Court assumed that there had been no available foster parents with a more similar cultural background. It was known that there was a serious shortage of foster parents from minority backgrounds. Regardless of how the choice of foster home was otherwise evaluated, the initial placement had a bearing on the assessment of what was in the best interests of X at the time of the High Court's judgment.

In the foster home, X had been brought up in accordance with his foster parents' values. It had to be assumed that it was these values that he regarded as his own and with which he identified at the time of the High Court's assessment. In this situation, consideration of the ethnicity, culture and religion of the biological family had to carry less weight than it would otherwise. In the event of a further foster home placement, X would also be exposed to the values of those foster parents. There was nonetheless an important distinction between being a foster child and an adopted child, since the parents, if the child were adopted, planned to baptise him and change his name. The applicant would experience this step as a final break with the religious values held by her and would find it difficult to accept. It was possible to feel that a more flexible solution would be to postpone the baptism until the child himself could decide on the matter when he turned fifteen, but nonetheless the majority could not see that these circumstances carried decisive weight against adoption.

The High Court's majority considered that a further foster home placement could give rise to problems in connection with, for example, the applicant's wishes that X be circumcised, attend Koranic school and follow Muslim food traditions. Her statement in the High Court that she had considered it best for X to remain with his foster parents had not been called into question, but the High Court was somehow uncertain (noko usikker) as to how permanent this opinion would be, and whether demands for X to be returned to her care would be made in future. A vulnerable boy such as X required a calm and stable situation. Adoption would create clarity, strengthen the development of X's identity and make him an equal member of the family. In the light of the above considerations, the majority of the High Court bench found that there were particularly compelling reasons for authorising the adoption and thus voted to dismiss the applicant's appeal.

The minority, one of the lay judges, found that the reasons for allowing the adoption were not sufficiently compelling, but that there were reasons for refusing to grant the applicant contact rights for the time being. The minority viewed the applicant's ability to provide care in a slightly more positive light than the majority and emphasised that, for the moment, a continued foster home arrangement would be more flexible than adoption. Greater weight should also be placed on ethnic, cultural and religious considerations in the overall assessment of what would be in X's best interests at the given time; this was highlighted in particular by the fact that adoption would entail religious conversion.

On 23 September 2015 the Supreme Court's Appeals Leave Committee (Høyesteretts ankeutvalg) refused the applicant leave to appeal.

Holds, unanimously, that there has been a violation of Article 8 of the Convention;

Holds, unanimously,

Dismisses, by fourteen votes to three, the remainder of the applicant's claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 10 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Prebensen

Deputy to the Registrar

Jon Fridrik Kjølbro

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

J.F.K.

S.C.P.

We fully agree with the judgment in so far as it concludes that there has been a violation of Article 8 of the Convention. We also agree with the award of (at least) 30,000 euros [EUR] as reimbursement of the costs and expenses incurred by the applicant.

To our regret, however, we are unable to join the majority in concluding that no further just satisfaction is to be awarded (see point 3 of the operative provisions). In our opinion, the Court should have awarded compensation in respect of non-pecuniary damage. Moreover, we believe that the costs and expenses should have been reimbursed in a more generous way.