October 01, 2019
By Kartica van de Zon, assistant professor of Family Law, Leiden Law School, the Child Law Department
On 9 April 2019, the ECtHR delivered its judgement in the case V.D and others v Russia. The case concerned a seriously disabled boy who had been in the care of his foster mother for nine years. Typically in cases on long term foster care and adoption, parents complain about their loss of parental authority, or the fact that the child has not returned to their care. In this case, however, it was the foster mother who complained that the child did return to the care of his biological parents. This poses the Strasbourg Court with a difficult dilemma. On the one hand, the Court has often stated that the reunification of children and their parents is the primary goal of child protection measures. On the other hand, the family life between children and their foster parents also deserves protection under Article 8 of the Convention. Granting foster parents a right not to be separated from foster children might come in conflict with the primary goal of child protection measures. Thus how far does the protection of foster parents right to family life reach?
The first applicant is an experienced paediatrician with qualifications in medicine. She is the foster mother of the second to eight applicants and has also been a foster parent to R. who was diagnosed with multiple serious health conditions at birth in 2000. After spending the first eight months of his life in hospital, the parents agreed that R. was to be put in the care of the first applicant, as the parents felt unfit to take care of R. By decision of the District Court in Astrakhan, guardianship over R. was transferred to the first applicant. Although R.’s parents did not maintain contact with R., they did provide the first applicant with financial and material support to take proper care of R. In 2007, the health condition of R. improved and his parents expressed their wish to take him into their care. The first applicant refused this, after which she brought a claim against R.’s parents requesting them to be deprived of their parental responsibility. According to an expert report provided for by the child-care authority, the parents did not show any interest in R. and should be deprived of their parental responsibility. The District Court, however, rejected the claim and urged the parents to change their attitude towards R.’s upbringing including an increase of their financial support. After this, the parents started legal proceedings to have their son returned home which was rejected in February 2009 as R.’s return home would not be in his best interests.
In May 2009, contact rights between R. and his parents were determined, setting their contact-rate to two visits a week. Psychological reports on the contact-sessions described the attitude of the parents towards R. as loving and caring. The health condition of R. was described as very serious, which greatly limited his interaction with the outside world. In May 2010, after the parents had been in regular contact with R. for a year, the District Court allowed a renewed claim of R.’s parents to return him into their care. They rejected the childcare authorities argument that the transfer should be gradual. According to the District Court, this gradual integration would have a negative impact on R’s psychological state. The decision of the District Court was upheld on appeal after which R was transferred to his parents in July 2010.
Legal attempts of the first applicant on behalf of herself and on behalf of the other applicants to gain access to R. after he was transferred to his parents care, were unsuccessful as the Russian law only grants contact rights to an exhaustive list of family members which does not include guardians.
The Courts reasoning
The first applicant complained before the Court on behalf of herself as well as on behalf of her foster children that their rights under Article 8 were violated due to both the decision to return R. to his parents as well as the denial of contact rights between them. Although the first applicant also lodged the application on behalf of R, the Court ruled that she did not have standing to act on his behalf. Although the Court had granted standing before to parents to act on behalf of their children after they lost parental authority, the Court stated that in this case the first applicant is not biologically related to R. As R’s parents were now the ones exercising parental authority over the boy, they could represent his interests. Due to R’s serious condition he could not express himself on the issue.
Regarding the alleged violation of Article 8 the Court first established that the relationship between both the first applicant and R, as well as the relation between the second to eight applicants and R constituted family life within the meaning of article 8 of the Convention.
Concerning the decision to return R. to his biological parents the Court reiterated that although the best interest of the child must be paramount, the interests of the parents remain a factor at stake. According to the Court’s well-established case law, family ties may only be severed in very exceptional circumstances. The Court noted that in this case the domestic authorities were faced with the difficult task of finding a proper balance between the interests of the applicants, who at the time were R.’s de facto family, and R.’s biological parents. At the same time, they also had to bear in mind that R. was a particularly vulnerable child due to his medical condition. Regarding these points, the Courts notes three considerations to be relevant. Firstly, it states that R. had spent the first nine years of his life in the applicants care. However, this factor alone could not, according to the Court, rule out the possibility of reunification. Secondly, the Court points out that R.’s parents never formally lost parental authority over their son. Although they did not have contact with him during the first eight years of his life, they had supported him both financially and materially. Also, they renewed contact with him in 2009. Under these circumstances, the first applicant according to the Court ‘could not have realistically assumed that R. would have remained in her care permanently’. The third consideration of the Court related to the assessment of R.’s interests by the domestic authorities, which the Court noted as carefully balanced.
Based on these considerations as well as the fact that the domestic authorities had the benefit of direct contact with all those concerned, the Court was satisfied that the Russian authorities acted within their margin of appreciation. The Court then adds that the authorities provided relevant and sufficient reasons for the decision and that the decision-making process had been fair, which led to the conclusion that the reunification of R. with his parents did not constitute a violation of the applicants’ rights under Article 8 of the Convention.
Concerning the denial of contact between the applicants and R., the Court refers to its previous case law in which it stated that due to the great variety of possible family relations, Article 8 imposes an obligation on member states to examine on a case-by-case basis whether contact-rights are in the best interests of the child. In previous case law (Nazarenko v Russia) the Court had already expressed its concerns regarding the inflexibility of Russian law concerning contact rights which only grants contact rights to a limited set of persons. The Court notes that, as in the previous case, the domestic automatically ruled out any possibility of contact-rights between the applicants and R. without considering the circumstances of this individual case. This lack of individual consideration led the Court to conclude that on this issue there has been a violation of the applicant’s rights under Article 8 of the Convention
This is not the first case in which the Court acknowledges the existence of family life between former foster parents and their foster children (see Moretti and Bendetti v. Italy and Kopf and Liberda v. Austria). What makes this case interesting, however, is the fact that the applicants complain that the child in this case was returned to his biological parents. In comparable cases before the Court it is typically the parent who complains that the child did not return to their care. As the ties between children and their biological parents are well protected under Strasbourg case law, decisions of domestic Courts concerning the severance of family ties are not easily approved of by the ECHR. Only in exceptional circumstances, where the biological parents have proven to be particularly unfit, the measure can be justified under Article 8 of the Convention. The margin of appreciation awarded to member states in such cases is therefore limited. The reunification of children with their parents is thus the primary goal of child care measures. Granting protection to foster parents’ rights to family life with their foster children is in conflict with this goal and this explains the very wide margin of appreciation the Court leaves to the member state in this particular case.
In this case, as opposed to cases in which the parents complained about severance of their family ties (see for example Y.C. v. the United Kingdom, par. 134), the Court does not go into the identification of the interests of the child. It merely checks whether the domestic authorities have made a careful assessment of the interests of the child. The assessment made by the domestic authorities did not refer to interest the child has in the continuity of care. It is however precisely this interest that can determine the outcome of a case. For example, in Haase v. Germany (par. 103) the Court stated that
‘Experience shows that when children remain in the care of youth authorities for a protracted period, a process is set in motion which drives them towards an irreversible separation from their family. When a considerable period of time has passed since the children were first placed in care, the children’s interest in not undergoing further de facto changes to their family situation may prevail over the parents’ interest in seeing the family reunited. The possibilities of reunification will be progressively diminished and eventually destroyed if the biological parents and the children are not allowed to meet each other at all’.
In Haase, the Court thus argues that the child’s interest in stability, might lead to a situation in which it is not in a child’s interest to return to their biological parents.
This seems to be quite contradictory to the outcome of this case where the de facto ties between R. and the first applicant were undeniably strong. The ties between the child and his biological parents were, on the contrary, very limited as he did not have contact with them for eight years. Instead of pointing to these ties, the Court, however, states that the applicant ‘could not have realistically assumed that the child would have remained in her care permanently’. In my opinion, it should be questioned whether expectations – realistic or not – are relevant at this point. Family bonds are formed apart from expectations. Children will attach to their carers despite possible future changes in care. The reference to justified expectations is at all quite uncommon in the Court’s case law on child protection measures (‘unlike questions of expectations regarding lawful residence in the host country in the Courts family migration cases under Article 8 ECHR, see Nunez v Norway and Butt v. Norway)
The case thus leaves former foster parents with limited protection under Article 8, as the protection of their family life does not protect them from separation, even when the child has spent almost a decade in their care. Based on this ruling the Court does not acknowledge the possibility that the child might over time develop ties with the foster family, which can lead to a situation where reunification is no longer in the best interest of the child. Furthermore from a children’s rights perspective it seems unfortunate that the Court did not grant the applicant standing to act on behalf of R. The mere fact that R. was not able to express himself on the matter does imply that he doesn’t have a clear preference as to where he wanted to live. In this case, it is not unlikely that R. would have wanted to stay with his foster family. After all he had lived with them since he was eight months old and the expert evidence cited by the Court in the case all proves of the strong and loving bond between the first applicant and R. The expert evidence regarding the bond R. had with his biological parents is not as convincing. A report dated 29 December 2009 (four months prior to R’s return) for example states that the parents had an insufficient understanding of their son’s emotional state and interests, the particularities of his psychological condition and his capabilities. Therefore according to the report, R. constantly needed the presence of the first applicant.
If we would assume however that R. disapproved of his transfer to his biological parents, the Court’s decision to not grant the first applicant standing on his behalf leaves him virtually unprotected. Due to his medical condition he is unable to complain on his own behalf and it would be absurd to expect his biological parents to complain on R.’s behalf about his return to foster care. Moreover, as a consequence of the wide margin of appreciation the Court has allowed in this case, his interests – in particular, the interest he has in the continuity of care – is not acknowledged in this case. The outcome of this case therefore, in my opinion, is quite unsatisfactory.