EHRM, 10-03-2020, nr. 39710/15

The first and second applicants were born in the Philippines in 1969 and in Norway in 1962, respectively. In September 2008, the first applicant gave birth to their son, the third applicant, X.

On 5 December 2008, when he was two and a half months old, X was placed in an emergency foster home because the first and second applicants were mentally ill and incapable of looking after him. There was at the time a conflict between the first and second applicant and the second applicant wanted the child welfare services to take care of X.

In the spring of 2009 X and the first applicant stayed for four weeks at a parent-child institution. The purpose of the stay was to facilitate the return of X to his parents. The stay had to be terminated, however, because of a negative development in X and deficiencies in the care that the first applicant had provided.

In connection with the centre's decision to terminate the stay, the head of the child welfare services issued a new formal decision on 12 May 2009 to place X in an emergency foster home. The parents lodged an appeal against the decision with the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker). They submitted, notably, that the first applicant had by then essentially overcome her mental issues, which had related primarily to depression. On 29 May 2009 the Board decided not to allow that appeal.

On 23 June 2009 the child welfare services applied to the Board for a care order for X. In a decision of 23 October 2009 the Board allowed the application. It was decided that X would be placed in a foster home and that the first and second applicants should have the right to two contact visits lasting two hours, two times yearly. The extent of the contact rights was set on the basis of, among other things, the assumption that the placement would most likely be long-term.

After an appeal by the first and second applicants, the District Court (tingrett) in its judgment of 9 March 2010 upheld the care order and the contact rights set by the Board. Like the Board, it found that the placement would most likely be long-term. It also took account of X's negative reactions to the contact sessions that had already been carried out, including to the one contact session that had been carried out since the Board's decision.

In January 2012 the first and second applicants lodged an application with the Board to have the care order lifted. The child welfare services, for their part, lodged an application for parental responsibilities to be removed, authorisation to be issued for X to be adopted and the post-adoption contact rights for the first and second applicants to be set.

On 8 June 2012 the Board decided to allow the child welfare services' request. Post-adoption contact was fixed at four hours, twice yearly, under supervision.

After an appeal by the first and second applicants, on 19 June 2013 the District Court gave judgment, largely upholding the Board's decision but setting post-adoption contact at two hours, twice yearly. The District Court had appointed an expert, a psychologist, L.O., to examine whether X had become so attached to his foster home that he could not therefore be returned to his parents; L.O. had confirmed that X had indeed become so attached. The District Court reached the same conclusion, stating, inter alia:

On 20 September 2013 the High Court (lagmannsrett) granted the first and second applicants leave to appeal against the District Court's judgment. It noted on that occasion that it had been unfortunate that the District Court had limited L.O.'s mandate to that of examining the issue of X's attachment to his foster home, instead of that of also examining the first and second applicants' caring skills. The High Court, composed of three professional judges, one psychologist and one lay person, first held a hearing from 4 until 6 March 2014. After hearing the parties' presentation of evidence, the High Court decided to postpone the further hearing of the case because it found it necessary to appoint an expert. A psychologist, E.B., was appointed and delivered her report on 25 May 2014. On the issue of the first and second applicants' caring skills, the report stated, inter alia:

On the basis of X's attachment to his foster home, E.B. advised that the care order should not be lifted, as this would seriously harm his development. On that subject, the report stated, inter alia:

The expert furthermore concluded that both adoption and continued foster care had advantages and benefits that had to be taken into account.

The hearing then resumed on 5 June 2014. In addition to the court-appointed expert, the psychologist L.O., who had been appointed as an expert by the District Court (see paragraph 16 above), attended the hearing and gave evidence as an expert witness. The first and second applicants attended, together with their legal-aid counsel, and gave evidence. Other evidence included the testimony given by a number of witnesses.

In its judgment of 19 June 2014 the High Court decided that the care order had to be upheld because of X's strong attachment to his foster home. In respect of X being adopted by his foster parents, it noted that this could be beneficial to X because it would offer him increased security and stability. It considered, however, that the foster parents would continue to support X even if he were not adopted, and that the first and second applicants would not in the future be likely to use their procedural rights to have his care order and their contact rights revised in a manner that would be harmful to X. Furthermore, adoption would entail X being cut off from his parents and thereby his ties to Philippine culture, and there were no grounds for assuming that the first and second applicants lacked caring skills. The High Court therefore concluded that it would not be correct to authorise X's adoption. The High Court noted that post-adoption contact under section 4-20a of the Child Welfare Act had been decided (see paragraph 38 below), and that adoption would thus not entail X losing all contact with his parents. Such post-adoption contact would be of a very limited extent, however, and in the High Court's view contact to a more traditional extent would be in X's best interests. It set contact rights at three-hour visits, four times yearly.

The child welfare services appealed to the Supreme Court against the High Court's judgment in so far as it concerned parental responsibilities and adoption. The extent of post-adoption contact visits, or contact rights if adoption was not permitted, was not made a topic for examination by the Supreme Court. The first and second applicants did not appeal against the High Court's judgment in so far as it concerned the refusal to lift the care order. During the appeal hearing before the Supreme Court, a video was shown containing footage of several contact sessions between X and the first and second applicants. The video was commented on by a psychologist, T.H., who had been engaged by the second applicant. In other respects, the case heard by the Supreme Court was essentially the same as that which had been heard by the High Court.

In its judgment of 30 January 2015 (Norsk Retstidende (Rt.) 2015 page 110) the Supreme Court stated that it would review all aspects of the case and that the review would take place on the basis of the situation as it stood at the time that it gave its judgment. It also stated that the main question was whether adoption would be in the child's best interests, in accordance with section 4–20 (b) of the Child Welfare Act (see paragraph 38 below). However, what was in the child's best interests was closely linked to the ‘attachment criterion’ specified under 4–20 (a).

As concerned the ‘attachment criterion’, the Supreme Court noted that the Board, the District Court and the High Court had all concluded that it would lead to serious problems for X if he were moved from the foster home. According to the Supreme Court's assessment, no new information had been presented to it that altered that conclusion. It had to be assumed that X had a deep-rooted and secure attachment to the foster home and his foster parents. The Supreme Court also referred to the statement given by the court-appointed expert before the High Court.

Proceeding to the condition that any adoption had to be in the child's best interests, the Supreme Court stated that a forced adoption strongly affected the biological parents. The emotional pain of having a child adopted normally ran very deep. Family ties that were severed by forced adoption were protected by Article 8 of the Convention and by the Norwegian Constitution. Adoption also constituted an invasive measure for children, and, pursuant to the UN Convention on the Rights of the Child Article 21, could therefore only be decided upon if it was in the best interests of the child. On the other hand, under the first paragraph of Article 3 § 1 of the UN Convention on the Rights of the Child and the Norwegian Constitution, the parent's interests had to yield in cases where decisive circumstances in respect of the child indicated adoption to be the best course of action. The Supreme Court also referred to the Court's judgment in Aune v. Norway, no. 52502/07, 28 October 2010.

The Supreme Court then looked at recent parliamentary documents in order to determine whether the legislature had intended to lower the threshold for adoption. It concluded that it had not. Statements in the documents indicated, however, that adoption was a desirable child welfare measure that should be used more often if there was a legal basis for it within the bounds of applicable law and Article 8 of the Convention. The parliamentary documents showed, moreover, that the legislature's wish for a greater use of adoption was grounded in research-based knowledge. The Supreme Court considered that such general experience and knowledge of the effects of adoption were important in connection with a concrete assessment of whether authorisation should be issued for adoption.

The Supreme Court went on to note that in 2010 a provision had been added to the Child Welfare Act (section 4-20a), allowing contact between a child and its biological parents after adoption (what was known as ‘open adoption’). Contact visits were contingent on the consent of the adoption applicants (adoptivsøkerne) and on it being in the child's best interests (see paragraph 38 below).

In several previous cases, the Supreme Court had urged the legislature to introduce such a provision. In its judgment of 1 April 1997 (Rt. 1997 page 534), it had maintained that this ‘would mean that the advantages for the child of being adopted would not have to be weighed against the advantages of a continued right to access for the biological parents’.

While the Supreme Court was not of the opinion that the introduction of legal authority for contact visits had lowered the high threshold for adoption (terskelen for adopsjon), it was of the view that in some cases contact visits would mean that the arguments against adoption would not carry the same weight. The Supreme Court referred to Aune, cited above, § 78.

Proceeding to a concrete assessment of whether adoption was in X's best interests, the Supreme Court noted that the situation at the time of its judgment was that he had lived virtually his whole life in the foster home, and had been only two and a half months old when he had been taken there. According to the expert assessment conducted by E.B., the psychologist, in the High Court's view (see paragraph 17 above), he had a minimal attachment to his biological parents, and his secure base was his foster home. He called his foster parents ‘mummy’ and ‘daddy’. He had a close and good relationship with the foster parents' biological son, who was a little older, with a younger girl who was also a foster child in the family, and with the extended family. It was clear from a memorandum from the child welfare services dated 17 October 2014 that X usually used his foster parents' surname when anyone asked what he was called.

The Supreme Court considered that that obviously strong and deeply-rooted attachment to the foster home should be strongly emphasized and that its view was supported by general knowledge regarding such situations. It noted that the primary attachment of very young children who had been placed in a foster home, as in the present case, was often to the foster parents. That consideration was supported by a White Paper on the protection of children's development (NOU 2012:5: Better protection of children's development (Bedre beskyttelse av barns utvikling)). At the time of the Supreme Court's judgment, X had a minimal attachment to the applicants.

Another factor that in the Supreme Court's view carried strong weight was that X was vulnerable and had a special need for security, stability and a predictable life situation. That factor had been emphasised in all the assessments of him that had been carried out, and, at the time of the Supreme Court's judgment too, he was a child with a special need for security and support. The High Court had referred to the fact that he was described as an insecure child, particularly in new and unfamiliar situations. He had started school by the time that the Supreme Court was considering its judgment, and it had been decided that he should have a special-needs education. The Educational and Psychological Counselling Service (pedagogisk-psykologisk tjeneste — PPT) had referred to ‘the need for an overview and predictability, the security of knowing who will look after him and who he should go to’. It was clear from a statement by X's contact teacher (kontaktlærer) dated 6 November 2014 that he had settled in at school, but that he had problems concentrating and low self-confidence. Within this context, the Supreme Court also referred to a statement by L.O., the psychologist appointed as an expert witness by the District Court (see paragraph 16 above), who had also testified as an expert witness before the High Court (see paragraph 18 above). She had stated:

The Supreme Court also considered that, within this context, it was an important factor (et moment) that, for virtually the whole of X's life, there had been disputes between his biological parents (the first and second applicants) and the municipality, and that new disputes could not be ruled out in future. The Supreme Court did not doubt that the first and second applicants' were motivated by a wish to ensure a good upbringing for X with them, but emphasised that disputes about care did not contribute to providing the necessary stability and calm for him.

The High Court had given decisive weight to the importance of maintaining X's ties with his biological parents, and particularly his ethnic ties to the Philippines through the first applicant. In the Supreme Court's view, those considerations were safeguarded through the contact visits, which the District Court had set at twice a year, each with a duration of two hours. The foster parents had taken a positive attitude to the contact visits, and there was every reason to believe that the visiting arrangement would work as intended. As had been stated by the European Court of Human Rights in the Aune case (see Aune. cited above, § 78), the contact visits meant that X would not be cut off from his roots and his ethnic background.

The first and second applicants had argued that Article 8 of the Convention had been violated by the original care order, and by the child welfare services' not doing more to facilitate reunification. It followed from case-law of the European Court of Human Rights that taking a child into care should normally be seen as a temporary measure, and that the overall purpose of child welfare measures should be reunification.

The Supreme Court stated in response that it based its view on the desirability of achieving family reunification, but that it could nonetheless not agree with the first and second applicants' argument. Their objections to the care order in 2009 — which, among other things, had related to the first applicant having been hampered by language problems and medication — had been rejected by the Board and the District Court. The first and second applicants had had relatively frequent contact sessions with X both before and after the stay at the parent-child institution (see paragraph 10 above), and the purpose of the stay at the institution had been to facilitate reunification. It had turned out, however, that the first and second applicants had been incapable of providing X with the necessary care. Nor could the Supreme Court see that the subsequent treatment could be criticised: the care order and the extent of contact had been stipulated after assessments had been made by experts. Nor was there any information that could give reason to conclude that further measures should have been taken to assist the first and second applicants.

In any event, it was X's best interests at the time of the Supreme Court's judgment that was the decisive factor when assessing whether authorisation for adoption should be issued, and not whether there might have been shortcomings in the authorities' efforts to return the child to his parents at an earlier and (at the time that the Supreme Court examined the case) past, stage.

On the basis of the above, the Supreme Court reached the conclusion that there were especially strong reasons for issuing an authorisation for adoption, and the District Court's judgment was accordingly upheld.

Articles 102 and 104 of the Norwegian Constitution of 17 May 1814 (Grunnloven), as revised in May 2014, read as follows:

Article 102

Article 104

It follows from the Supreme Court's case-law — for instance its judgment of 29 January 2015 (Rt. 2015 page 93, paragraphs 57 and 67) — that the above provisions are to be interpreted and applied in the light of their international law models, which include the Convention and the case-law of the European Court of Human Rights.

The relevant sections of the Child Welfare Act of 17 July 1992 (barnevernloven) read:

Section 4–20 Deprivation of parental responsibility. Adoption

Section 4-20a. Contact visits between the child and his or her biological parents after adoption

Other relevant material relating to domestic and international law is referred to in the Court's recent judgment in the case of Strand Lobben and Others v. Norway [GC], no. 37283/13, §§ 122-139, 10 September 2019, to which reference is made.

The applicants complained under Article 8 of the Convention that their right to respect for their family life had been infringed through the domestic authorities' decisions to deprive the first and second applicants of their parental responsibility for X, to allow the adoption of X and to restrict the applicants' subsequent contact. They furthermore alleged that the domestic authorities had failed to try to reunite the family and that the domestic procedure had been unfair since they had not been sufficiently involved in the process

Article 8 of the Convention reads:

The Government contested that argument.

Article 41 of the Convention provides: