January 03, 2018
By Amy McEwan-Strand and Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)
In a case of adoption without parental consent – Strand and Lobben v. Norway – the Fifth Section of the European Court of Human Rights (the Court) did not find a violation of Article 8 of either the mother or the child. The outcome of this case may well be surprising to many, since the last few years have seen a massive uproar and negative media attention on child protection interventions internationally, with Norway having a prominent place in this spotlight. In 2015, the Norwegian child protection system received harsh criticism from the Czech president, and the Norwegian embassy in Lithuania even felt it necessary to engage public relation consultants to handle the pressure. The Norwegian word for child protection, “barnevern” is now a term associated with draconian interventions into the family sphere in certain European circuits.
The paradox is that Norway is considered to have a good child protection system when compared to other States’ systems, and Norway is ranked second both on the KidsRight Index and on the UNICEF´s child well-being index in rich countries (2013).
We believe an important explanation to this paradox is the changes in the role and place children have in societies. Strong child centrism in a state creates tensions between groups of citizens, and between States, because children´s rights challenge the traditional understanding of families, and the relationships between the family and the State. Thus, it follows that a child centric state strengthens its protection of children´s rights and challenges parental and family rights.
In Strand and Lobben v. Norway, the Court touches exactly on this conundrum, balancing parental rights vs child rights; biological parents vs psychological parents; de jure vs de facto termination of relations; and, temporary measures vs permanency for the child. The majority of four place an emphasis on the child’s best interest and permanency for the child before the interest of parents, and the minority of three emphasise legal bonds and the negative effects of cutting biological ties.
In several states, policy has increasingly favoured adoption as a child protection measure in recent years, based on research finding adoption is the better option for children in long term care (cf. R and H v the United Kingdom, para 79, cf. Strand Lobben v Norway, para. 71). This is in direct contrast to the jurisprudential principle that care orders should be regarded as temporary, with a positive duty on the state to ensure reunification as soon as circumstances permit. Begging the question of how appropriate this jurisprudential principle is in light of research on child protection and the stability and security of children in public care.
The first applicant, the mother, first came into contact with the child welfare authorities during pregnancy as she applied for a late abortion in her sixth month pregnancy. When her child was born September 2008, she was without a permanent home and agreed to stay in a mother and baby care unit. When she later withdrew consent to stay at the care unit, the baby was placed in foster care. Care proceedings were initiated due to concerns for the baby´s welfare. During their stay at the care unit, the mother needed to be consistently reminded to feed the baby; she showed a lack of understanding of her son’s needs and empathy towards him; and was deemed herself to be vulnerable and in need of care.
The County Social Welfare Board granted a care order March 2009. The mother appealed the decision of the care order to the City Court, and the decision was overturned. The child welfare authorities appealed to the High Court, the decision was again overturned, and the care order was upheld.
When the boy was three years old the foster parents were given permission by the County Social Welfare Board to adopt the boy. The mother appealed, but the City Court upheld the decision on adoption, and further appeals to the High Court and then the Supreme Court were denied.
Complaint before the ECtHR
The mother lodged a complaint before the ECtHR on behalf of herself and the boy, submitting there had not been any reason to authorize adoption of her son. Adoption is an extreme and irreversible measure, and can only be applied in truly exceptional circumstances. The state submitted that even far-reaching measures such as adoption can be justifiable when motivated by the over-riding principle of the child’s best interest. Emphasis was placed on the vulnerability of the child. All necessary steps to ensure reunification had been taken, and the decision had been assessed in relation to the child’s best interest several times and balanced against the mother’s legitimate interests. The boy had now lived with his foster parents since he was three weeks old, and had an interest in not having his family situation changed.
Judgment and analysis
The majority of the Court deems, as a whole, that the proceedings in this case were fair and capable of protecting both applicants’ rights under Article 8. The Court reiterates its case law that states enjoys a wide margin of appreciation in this area. States are closest to its citizens and best placed to assess the facts of these cases. Nevertheless, the guiding principle on care orders is they should be regarded as temporary measures with the ultimate aim of reunification if possible. Adoptions are irreversible measures and thus stricter scrutiny is applied (para. 102).
The decision provides an extensive descriptions of children´s rights, the child and his situation, and that his de facto psychological parents are his foster parents and that he did not have an attachment to his mother. The Court states that when considerable time has passed since the child was taken into care, the child’s best interest may best be protected by not changing the child’s family situation. This consideration would override parental rights and the aim to seek reunification. The domestic decision to authorize adoption was taken in the child’s best interest and fell within the state’s margin of appreciation. An adoption would strengthen the child’s bonds to his foster parents and provide him with more security. The alternative to adoption was in any case long-term foster care. Even though adoption would mean a cutting of the child’s de juris ties to his biological family, the foster parents had been positive to contact between the child and his birth mother. On this background, the Court was “satisfied that there were such exceptional circumstances in the present case as could justify the measures in question and that they were motivated by an overriding requirement pertaining to [the Child’s] best interests” (para 129).
While the dissenting opinion finds the care order of the child is justified and in keeping with the applicants’ Article 8 rights, adoption is not. Neither legally nor factually. At the heart of the issue is the irreversibility of adoption and an emphasis on biological ties. The requirement of “exceptional circumstances” is not fulfilled as a “…need to establish particularly weighty reasons, to limit the breaking of de facto and de jure ties to exceptional circumstances and to apply stricter scrutiny when the latter occurs” (para. 27). Specifically, the factual evidence related to the assessment of the child´s vulnerability; the mother’s abilities as a parent; and the impact of the mother´s negative attitudes, were disputed by the minority. In their opinion, the Court must consider how the child’s rights under Article 8 and best interest are affected by the severing of all ties – de facto and de juris – between the boy and his birth mother. A promise from the foster parents to allow contact without a legal security was no guarantee of contact.
The underlying principle driving the minority, is the importance of the long-term effects of cutting de facto and legal ties with the biological mother:
“The Court has repeatedly held that severing such ties cuts a child off from its roots, which is a measure which can be justified only in exceptional circumstances. Regarding the preservation of such roots, it has in other circumstances held that domestic authorities could legitimately deprive a minor, against the latter’s will, of his filiation with the person who he considered to be his father and with whom he had a strong emotional bond, in order to recognize the minor’s filiation with his biological father as the child’s interests lay primarily in knowing the truth about his origins.” (para. 4)
The decision comes at a time when the Norwegian child protection system is under massive pressure both nationally and internationally. The conflicting values and interests are in our views clearly reflected in Strand and Lobben v. Norway. Although the Court is not unanimous in its ruling, we do see this decision to be in line with recent child-centred trends from the Court. The reasoning of the Court seems markedly child-centric, placing the child’s best interest before any other interests in the case. This was also clearly formulated in the case of YC v the United Kingdom in which “(t)he Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount…” (para. 134, cf. Strand Lobben v Norway, para. 108).
An underlying current of this development is the modernisation processes throughout democratic states, and them bearing with human rights developments and the recognition of marginalised groups. Children have increasingly become a direct concern of the State. The traditional view on children, that they are the property of the father (pater) or the family, is under pressure and replaced with a notion that children are individuals with their own interests. When the obligations of States are to also secure children´s rights, then a direct relationship between children and the State is established and requires a shift in the balancing of parental rights versus children´s rights. In the R and H v the United Kingdom, the Court made this balancing act evident: “If it is in the child’s interests to be adopted, and if the chances of a successful adoption would be maximized by a freeing order, then the interests of the biological parents must inevitably give way to that of the child.” (para. 77).
When states take a strong responsibility for children´s rights, there will be potential for stronger conflicts and more tensions around the child protection system. We believe this explanation sheds light on the apparent legitimacy problems of the child protection systems in Norway and other countries – and the criticism they are currently under.
The question is also if and how children´s rights and research evidence on children´s developments challenge the jurisprudential principles that the Court derives from the European Human Rights Convention. Specifically, the principles that care orders should be regarded as temporary measures and the high threshold for terminating legal ties between a child and a birth parent. The majority and the minority in Strand Lobben v Norway interpret the importance of the biological principle differently, and we read this as a weighting of children´s right versus parents’ rights. From observation, much of the criticism towards the child protection system comes from parent groups. Typically, state interventions that limit parental rights are considered the problem, not the lack of protection of children´s rights.
Evidently, there is a lack of European consensus in this field, clearly illustrated by the dissent in this case. With societies and states at a crossroad in how children are treated and how their rights are respected and protected, we anticipate the Court will increasingly direct its jurisprudential standards to accord with children´s rights, further developing and clarifying the principle of the child’s best interest.
Amy McEwan-Strand is a legal scholar and works as a research assistant on an ERC Consolidator project at the Centre for Research on Discretion and Paternalism, University of Bergen, Norway.
Marit Skivenes is a professor in political science, research director for the Centre for Research on Discretion and Paternalism, University of Bergen, Norway.
 Burns, K. Pösö, T. & Skivenes, M. (eds.) (2017) Child Welfare Removals by the State: A Cross-Country Analysis of Decision-Making Systems. New York, NY: Oxford University Press.
 KidsRight Index (2017) http://kidsrightsindex.org/Portals/5/The%20KidsRights%20Index%202017.pdf?ver=2017-05-11-124125-077
 UNICEF´s child well-being index in rich countries (2013). https://www.unicef-irc.org/publications/pdf/rc11_eng.pdf
 Cf. Skivenes, M. & Søvig, K. (2016.). “Judicial Discretion and the Child´s Best Interest – The European Court of Human Rights on Child Protection Adoptions” in E. Sutherland & L. Macfarlane (eds.) Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being. Cambridge: Cambridge University Press.
Wow unbelievable (I read the judgement.) I do hope that the applicants successfully request a referral to the Grand Chamber, and that the judgment subsequently gets overruled. I like less and less the decisions emanating from the Fifth Section.
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