By Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)
The backdrop for the Grand Chamber case, is the dissenting Chamber judgment of 2017 – Strand Lobben vs. Norway – about a boy that had been adopted from foster care. Here, the Chamber concluded it had not been a violation of the mother´s right to respect for family life under Article 8 due to the Chamber’s strong emphasis on the child’s best interest and his de facto family situation, as well as his need for permanency. The dissenting minority of three judges argued for the importance of legal (de jure) bonds and the negative effects of cutting biological ties. In the Grand Chamber judgment, a majority of 13 judges concluded that Norway had violated the applicants’ right to family life on procedural grounds – not on the merits of adoption from care. By this, the Court bypassed a discussion on the tensions and challenges children´s strong position as right bearers implies for the traditional relationships between family and the state.
Although, the Grand Chamber judgement is a disappointment for some and a relief for others, I believe that from a child´s rights perspective there are three important messages that should be addressed:The first message relates to the Court´s requirement that use of evidence and information in decision making must be updated and relevant. This should be uncontroversial in all systems throughout Europe. The second message, is that the Court calls for more information about the child´s situation and circumstances. This is in my view necessary to improve in the Norwegian system as well as in most European child protection systems. And, lastly, the third message pertains to the Court´s blindside on children´s participation – a boy that is 10 years old at the time of the hearing – having no real voice, in other words no legal representation of his own interests – in the case. This must be changed!
The first applicant, the mother, first came into contact with the child welfare authorities when she applied for a late abortion in her sixth month of pregnancy. When her child, the second applicant, 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 a 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 of the City Court 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 Chamber – Strand Lobben v. Norway 2017
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 consistently since he was three weeks old, and according to the domestic authorities it was his in best interest to not have his family situation changed.
The majority of the Court (4-3) concluded, as a whole, that the proceedings in this case were fair and capable of protecting both applicants’ rights under Article 8, and 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). The minority of three found the care order was justified and was in accordance with the applicants’ Article 8 rights, but adoption was neither legally nor factually in accordance with their Article 8 rights. At the heart of the issue was the irreversibility of adoption and an emphasis on biological ties.
Complaint before the Grand Chamber Strand Lobben v. Norway 2019
A majority (13:4) of the Grand Chamber concluded that there had been a violation of Article 8 of the Convention in respect to both the mother and the boy. However, while the discussion in the Chamber case was about adoption from care, parental rights, the boy´s best interests and his rights; the Grand Chamber decision centred around procedures. Specifically, the Court points out shortcomings in the evidence used for the decision making.
“Against this background, taking particular account of the limited evidence that could be drawn from the contact sessions that had been implemented (see paragraph 221 above), in conjunction with the failure – notwithstanding the first applicant’s new family situation – to order a fresh expert examination into her capacity to provide proper care and the central importance of this factor in the City Court’s assessment (see paragraphs 222-3 above) and also of the lack of reasoning with regard to X’s (child’s) continued vulnerability (see paragraph 224 above), the Court does not consider that the decision-making process leading to the impugned decision of 22 February 2012 was conducted so as to ensure that all views and interests of the applicants were duly taken into account. It is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake.” (para 225)
However, the Grand Chamber judgment included four dissenting judges who did not consider this a violation of Article 8. Furthermore, within the majority, a fraction wanted to turn to the merits of the case and they expressed scepticism about adoptions from foster care – echoing the minority arguments from the Chamber judgment. The two concurring dissenting opinions criticized the majority’s lack of attention to the fact that the child’s best interests should be the guiding principle in child rights cases, and questioned whether the mother should have the right to represent the child.
For critics of the Norwegian child protection system, within and outside Norway, this decision might well have been a huge disappointment. The long-awaited Grand Chamber judgment does not reverse its support for children´s best interests and does not change the existing order on adoptions from foster care. Although the Grand Chamber judgment is not straight forward to interpret (with its many annexed opinions), I believe that there are a few strong and clear messages that should be brought home to the child protection systems of Europe and Norway. The learning potential from an ECtHR judgment is important to utilize. In particular, the Norwegian government must use this opportunity to identify how the child protection system can be improved.
The first important lesson from this case is a simple one, to include updated knowledge in every stage of the proceedings. It goes without saying, that updated knowledge and facts must be the basis for any decision making when the state intervenes in the family. Norwegian law requires, indisputably, that it is the ‘here and now’ situation that shall be assessed in child protection cases. Thus, the Grand Chambers critique of using outdated and old testimonies from experts is a reminder to all decision makers to not only look back on persons past behaviour, but to keep in mind that circumstances may change. This criticism from the Grand Chamber is important and to the point, but also very specific to the proceedings in this case. Research on removal proceedings in Norway compared with other systems, display a high regard to due process and rule of law. It is possible that practice in Norwegian County Boards and Norwegian courts are sloppy in this regard, but I cannot substantiate that there is in fact a widespread disorder in the Norwegian system on this matter. Regardless, it should be blatantly clear that evidence and knowledge must always be updated.
The second learning point, related to the first, is to secure a child-centric approach to decision making in child protection cases. This point needs a bit more elaboration and a look back to the Chamber case. In January 2018 we posted a blog titled “Child-Centered Court of Human Rights?” as a comment to the Chamber judgment. Our choosing of the title reflected the fact that the majority of the Court placed a strong emphasis on the child’s best interest and his de facto family situation, as well as his need for permanency. In the Grand Chamber case, it is another dimension of child centrism that is displayed, namely the importance of having information about the child.
“However, whereas X’s vulnerability had formed a central reason for the initial decision to place him in foster care (see, for instance, paragraphs 31 and 42 above), the City Court’s judgment contained no information on how that vulnerability could have continued despite the fact that he had lived in foster care since the age of three weeks. It also contained barely any analysis of the nature of his vulnerability, beyond a brief description by experts that X was easily stressed and needed a lot of quiet, security and support, and stating his resistance to and resignation toward having contact with the first applicant, notably when faced with her emotional outbursts (see paragraphs 101 to 102 above). In the view of the Court, having regard to the seriousness of the interests at stake, it was incumbent on the competent authorities to assess X’s vulnerability in more detail in the proceedings under review. (para 224).”
The premise the Grand Chamber underscored in the judgment is that a fair and justified decision cannot be made without having correct information about the persons involved. The child is the main person in any child protection case, and thus none of the decision makers – be they child protection staff or judiciary decision makers – can neglect their obligation to ensure that the specific child´s circumstances is well known before a decision is made. This critique from the Court, is closely related to the fact that children´s participation and involvement in their own case is often neglected in child protection cases –a fact that is also telling for the Court´s practice and brings me to my last point.
The third message that must be given attention, is the 10 year old boys absence in the Grand Chamber judgement. The boy is not independently represented in the proceedings but is instead seen as the second applicant and thus his interests are to be assumed to align with his biological mother’s (the first applicant). Clearly children are humans and have a right to complaint to the Court, but in practice they do not have individual rights to personally petition the Court. This has been the parent’s right and responsibility, and this was also how it is done in Strand Lobben in both the Chamber and in the Grand Chamber. In itself, this is problematic, but in child protection cases where children are placed with other caregivers this is highly problematic as consequently children´s interests are not properly protected. The concurring dissenting opinion – Judges Koskelo and Norden – discuss the lack of representation and the disadvantages with the boy being lumped in with the mother in the considerations of their interests:
“It is high time for the Court to reconsider its approach and practices regarding the issue of permitting a natural parent to act on behalf of his or her child even where the circumstances of the case indicate an actual or potential conflict of interests between them. If the Court is genuinely to embrace, in line with the Convention on the Rights of the Child, the idea of children as subjects of distinct individual rights and the need to regard the best interests of the child as a primary consideration, it appears necessary to make changes also in the procedural practices. (para 17].
Clearly, from a normative point of view, it cannot be a premise in a child protection case that the interests of the birth parents and their child´s interests align. Children´s representation in ECtHR has been called for by researchers, academic lawyers, non-governmental organizations, and Children´s Ombudsmen to mention just a few. A decision about adoption from care or a care order, cannot be legitimate and justified if the child has not been involved and been included as a participant. This general insight has been accepted and incorporated in many countries’ child protection legislation (Skivenes and Sørsdal 2018).
Children´s participation touches upon the debate on whom should be involved and included as parties in a case. From a child perspective in child protection cases, foster parents and adoptive parents must be included in discussions about a child´s family life who are the child´s de facto family; a point that recently was brought before the Court when foster parents claimed protection of their right to family.  Recently, the Court explicitly mentioned the combination of de jure and de facto family in its latest judgement on the issue (S.S. v. Slovenia (2018)), stating that for a child being integrated into the de facto family weighed particularly heavily when balancing with the biological parent’s wish to retain legal ties. Furthermore, the Court acknowledges the value of securing a de facto placement with de jure bonds, and that the alternative in these cases is not birth family versus adoptive parents, but foster home versus adoptive family which also is mentioned in the Chamber judgment of Strand Lobben v. Norway.
The Grand Chamber case is concluded, but the judgment, with its various concurring and dissenting opinions, is a showcase for the controversies and the tensions in the field of child protection – ready to feed into the debates on the responsibilities in the family-state-child triangle. Today societies and states are at a crossroad in how children are treated and how their rights are respected and protected, but I am not confident on the directions taken in Europe. What is clear it that when children are not participating in their own case, it is very difficult for any decision maker to reach a correct decision about a child´s best interests. The boy that has been on the side line in this case, may feel disrespected and of little value for the Court. He is bearing the burden of these proceedings (together with his adoptive family) with the massive media attention, having his home address published on social media, and pressure groups in Norway and internationally using his case and this Grand Chamber conclusion to show how the child protection system supposedly has failed. I believe this case may well be the tipping point for child centrism in the Court, and that it will have significant implications for the place of children in child protection systems of Europe that respond to the European Court of Human Rights.
 In April 2019, the ECtHR decided in the case V.D and others v Russia, on the protection of foster parent’s right to family and the best interests of the child. See blogpost on Strasbourg Observers: https://strasbourgobservers.com/2019/10/01/the-protection-of-foster-parents-right-to-family-and-the-best-interests-of-the-child/