By Evelyn Merckx, teaching assistant and PhD-researcher at Ghent University
King Solomon has proven to be a widely-used character in titles of papers regarding the placement of foster children and adoption. With the risk of becoming repetitive, the following analysis reveals why this case so strikingly reminds the reader of the biblical narrative. Though the facts are very similar, the ultimate plot varies greatly as the judgment of the European Court of Human Rights does not favour the “real” or even the “fake” mother, but the domestic authorities.
The mother in this case is an Iraqi national who followed her husband to Norway. After the birth of their first child, the couple’s relationship deteriorated quickly, revealing a context of extremely violent domestic abuse perpetrated by the father, jeopardising the life of the mother and their two daughters. Since the birth of her first child, the mother lived in and out of crisis centres and struggled to break off contact with her husband.
The authorities decided to impose assistance measures such as parenting guidance, couples therapy, a Norwegian language course for the mother and aggression management therapy for the husband. However, the police alerted the child welfare authorities about the aggressive behaviour of the father when the mother was admitted to hospital during her second pregnancy. The father could not be convicted for the maltreatment of family members, because the mother had withdrawn her statements. After other violent incidents which resulted in the emergency placement of her two children, the mother claimed that she never wanted to return to her husband and the authorities decided to only return the children when she was settled in her own flat. Meanwhile, an application for the children to be taken into care was being investigated by the Board that hired two experts in educational and psychological counselling and the mother moved into her own flat.
Before the Board reached a decision, however, the children were violently abducted during a contact session with the mother, who got paralysed by an electroshock weapon. The children were found the next day and the father admitted that he had staged the abduction. Based on this incident, the Board decided to place the children into care and that there should be no contact between the children and the parents. This judgment was justified by the authorities on the ground that they had doubts concerning the capabilities of the mother to protect the children from their father and the observation that the mother was under control of the father. A year later, the mother was threatened by her own half-brother to move back to Iraq on paid assignment from the father. However, she divorced her husband and criminal charges against him were made. The father was convicted for the violent abduction of the children and sentenced to one year and seven months’ imprisonment, after which he fled back to Iraq. Meanwhile, proceedings were instigated to remove the parents’ parental responsibility and to authorise the foster parents’ adoption of the children. The mother’s ability to take care of the children was uncontested by the authorities, but the High Court found that “the father is violent and represents a threat to the mother.” This finding had to be reconsidered after his move to Iraq. In his assessment regarding the situation, the expert raised concern regarding the risk that the father’s family would abduct the children to Iraq and the practice of honour killings in the Kurdish community, given that children in that culture belong to their father’s family. Based on the antecedents, the expert doubted that the mother would succeed in keeping her whereabouts and that of the children secret.
A commission member reacted to this report, stating that it was not based on concrete knowledge about the situation in the family. The Board however, pointed to the extensive investigation that was needed to determine the risk with a sufficient degree of certainty and found that it had no option but to base its assessment on the known facts. These where that the police still considered the children to be at high risk of being kidnapped. Furthermore, an assessment of the children’s behaviour and care needs was carried out, which established that both children suffered from serious separation anxiety and were very attached to their foster parents. Losing their foster parents would be a traumatic experience for both children and the expert stated that their history had made the children particularly vulnerable with regard to new broken relationships. The eldest child was aware of the fact that she had another mother who loved her, but was nevertheless strongly attached to her foster parents.
Eventually, the Board found that adoption was in the child’s best interests because particularly compelling reasons existed to consent to adoption against the biological parents’ wishes, thereby removing their parental responsibility. They alleged that adoption would give the children a stronger sense of security and belonging. Furthermore, the Board judged that there was little attachment between the mother and her daughters. Moreover, adoption resulted in the children using their new names, which significantly reduced the risk of their identities being exposed and the foster parents were deemed suitable parents. Referring to the children’s age (four and six) and development, the Board decided not to hear them. Finally, the Board found that refusing contact rights for the mother was essential to protect the children. The Board considered that the children could otherwise easily disclose information that would reveal their whereabouts, which could endanger them and their mother. The City Court endorsed those views in a judgment which was appealed by the mother. She stated that she accepted that her children were attached to their foster parents and that they would not be returned to her. Her appeal concerned the removal of her parental authority, the authorisation of the adoption of her daughters. She moreover requested the High Court to grant her visiting rights. The High Court refused to give the parents leave to appeal, because the City Court had considered the children’s best interests in a satisfactory and adequate manner.
Judgment and comments
The ECtHR stresses that decisions regarding child welfare are often irreversible, especially in the context of adoption, which requires a great call for protection against arbitrary interferences. To determine the necessity of the interference, the Court analyses whether the authorities struck a fair balance between the competing interests, taking into account the State’s margin of appreciation and the crucial importance of the principle of the child’s best interests. Even though the State enjoys a wide margin to assess the necessity of taking a child into care, the Court stresses that stricter scrutiny is called for when further limitations are being imposed, such as restrictions placed on parental rights of access. Furthermore, a decision to take a child into care should be regarded as a temporary measure, and the ultimate aim should consist of reuniting the natural parents and the child. The Court states that “the positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child.” The decision to replace a care arrangement with adoption should only happen in exceptional circumstances if it is motivated by an overriding requirement pertaining to the child’s best interests. In this context, the Court referred to the Gnahoré v. France judgment, where the Court found that the family had proved particularly unfit to raise their children. However, in the present case, the mother had only been declared unfit to raise her daughters because of the traumatic experiences they had experienced. This situation might be resolved with the aid of therapeutic intervention.
Furthermore, the Court analyses whether the domestic courts conducted an in-depth examination of the entire family situation. The Court also finds that “when a considerable period of time has passed since the child was first placed in care, the child’s interest in not undergoing further de facto changes to its family situation may prevail over the parents’ interest in seeing the family reunited.” The Court stresses that domestic authorities are not required to make endless attempts at family reunification. The question arises to what extent endless attempts have been made in casu, given that Norway stopped those attempts altogether after the failed abduction.
In its analysis, the ECtHR considers the reasons the authorities stated to initially take the children into care, even though this reality is no longer challenged by the mother. It is beyond doubt that the vulnerability of the children requires them to stay where they are. However, Norway did not explain why this vulnerability would last indefinitely and whether allowing contact rights with the mother would do them harm. Finally, neither the domestic authorities nor the Court sufficiently explain why adoption is the best outcome for the children. In custody cases, the Court recommends phased measures in order to gradually reunite children with an alienated parent. This begs the question why ordering similar measures in this case is not expected of the State as well.
In the ultimate comparison to the Judgment of Solomon, the Court uses the mother’s resignation concerning the placement of her children as an argument to prove the children’s attachment with their foster parents. However, contrary to the biblical story, this unconditional act of love in which the mother places her children’s needs before her own, is not recognised as such by the Court. The Court seems to neglect the request of the mother for visiting rights by focussing on the importance not to remove the children from their foster families. When the issue of contact rights is touched upon, the Court uncritically repeats the findings of the domestic authorities that the parents would probably never make use of their parental responsibility again and that the situation was permanent. The Court hereby neglects the strict margin of appreciation that is granted to Norway when a member State denies parents a right to access to their children. Needless to say, the authorities did not take any measures to re-establish a minimum level of contact between the biological mother and her children after the abduction and confronted them with a fait accompli. The attachment of the children to their foster family, which in itself does not necessarily jeopardise contact of the children with their biological mother, is adduced as the ultimate argument to reject the mother’s request. The Court also follows the authorities’ statement that visits from the mother could not be implemented due to safety reasons, whichever security measures be put in place. Regrettably, the Court does not question how this analysis was made and which security measures were contemplated, even though the Court’s case-law stipulates that the member State should take all relevant measures that could reasonably be expected to preserve contact between a parent and his or her child. The Court also blindly accepts the arguments that adoption offers children a higher degree of security along with their belief that in this case, the child’s best interests were sufficiently protected by the State. Specifically, the Court stressed that the authorities paid attention to individual factors, such as their age and maturity and that the effects of the decisions with regard to their cultural background and their relationship with relatives was discussed. However strikingly, the interests of both siblings in enjoying family life with each other is not mentioned, even though this is an important consideration in divorce and separation cases.
The Court refers to the father’s domestic violence and abuse in order to justify that the adoption was ordered due to exceptional circumstances. Furthermore, the Court stresses the children’s need for stability and predictability and refuses to re-examine the authorities’ assessment of the abduction risk. Unanimously, the Court found that no violation of article 8 ECHR had occurred.
Unfortunately, the ECtHR neglects to incorporate the context of violent domestic abuse in its assessment of the positive obligations that rest upon the member State. Dramatically lacking is an answer to the question whether Norway has taken all necessary measures to protect the children and the mother from domestic abuse, whilst preserving contact between them and whether less restrictive means were available to protect the interests of the children. It seems like Norway decided to neglect its negative obligation under article 8 ECHR in order to avoid spending time, energy and resources on the protection of the family. This gamble paid off, as it can be argued that the Court places the interests of the State above those of the family. The Court justifies this decision on the grounds of the best interests of the child, though the children were not heard, were not given the possibility to gradually renew contact with their biological mother, nor to cultivate a sibling bond. Furthermore, the child’s interests in the short term seem to have taken precedence over their interests in the long term. Considerable attention is paid to the fact that the children are no longer attached to their biological mother, but the responsibility of the State was conveniently overlooked. Lastly, the benefits of adoption are stressed by overvaluing the importance of stability that this institution provides, though this presumes that a child is capable to cognitively distinguish between the precise legal nature of a care-arrangement and adoption. Finding paternalistic arguments of perceived stability and hypothetical safety “particularly weighty reasons” that justify such an intrusive measure, constitutes a dangerous precedent indeed, as it completely denies a child the love of her biological mother and of the other sibling.