October 23, 2019
In the recent judgment of Strand Lobben and Others v. Norway, the Grand Chamber found a violation of Article 8 ECHR (the right to respect for family life) on account of shortcomings in the decision-making process leading to the adoption of a boy who had been placed in foster care. The Grand Chamber in particular took issue with the fact that this decision had been taken without up-to-date expert evidence on the mother’s capacity to provide proper care and on her son’s vulnerability. As the case has already been discussed by Marit Skivenes on this blog, this post will only focus on a particular aspect of the case: the side-stepping of the important substantive issues in favour of a purely procedural review of the case, despite strong mobilization by third party interveners around the former. This certainly fits within the broader trend seen in the case law where there is an increasing reliance on procedural review, often associated with the idea of Strasbourg having entered the “Age of Subsidiarity”, a term coined by Judge Spano. It is argued that, by micromanaging domestic processes rather than providing guidance on substantive issues, at a moment in time in which no useful decision can still be made for the families affected, the Court risks making itself redundant in addressing human rights concerns in the area of child protection.
Third party interventions
In her blog post, Skivenes described the judgment as “a disappointment for some and a relief for others”. That the stakes were high is evident from the number of third party interventions (TPI’s) submitted in this case: besides the adoptive parents (whose TPI will not be further discussed), seven governments and three NGO’s intervened. While it is not entirely clear to me why so many actors suddenly took an interest in the case – almost reminiscent of the mobilization around the Lautsi case – a reading of the TPI’s summarized in the judgment indicates a strong disagreement on the desirability of permanently severing the ties between child and biological family.
On the one hand, there’s a group of TPI’s that clearly argues against such severance, except perhaps in the most exceptional circumstances. A strong preference for a solution that respects the integrity of the biological family is most evident in the TPI’s by the Czech Republic, Slovakia and ADF International (a faith based legal advocacy organisation). While Slovakia emphasizes that “the Court’s case-law was perfectly clear in that it primarily protected the biological family”, ADF International submits that “family was internationally recognized as the fundamental group of society and of particular importance to children.” The Czech Republic in turn argues that the “‘best interests’ principle was not designed to be a kind of ‘trump card’” and that child welfare systems should therefore “not disregard the existence of the biological parents’ rights, which should be duly taken into account and balanced against the best interests of the child, rather than minimised to the point of being ignored.” A bit more prudently, Bulgaria emphasized the need for strict scrutiny in respect of these kinds of far-reaching measures, requiring the Court to assess the substance of the case as well. In this respect, Bulgaria stressed that “it was not enough to show that a child could be placed in a more beneficial environment for his upbringing.” In a similar vein, the AIRE Centre argued that
“It could be that in very exceptional circumstances it would not be in a child’s best interests to retain contact with the birth parents (for example, when those parents had been operating a paedophile ring or engaging in child trafficking or serial child abuse), this conclusion should not flow automatically from the decision that the child needed a stable, permanent home that was not with the birth parents.”
While Belgium in its TPI clarified that its legislation “did not allow for adoption contrary to the biological parents’ wishes”, the AIRE Centre pointed to the existence of alternatives to the most extreme measure of “closed” adoption, such as as “adoption simple” or long-term fostering.
Another group of TPI’s, on the other hand, is more sympathetic towards the possibility of permanently severing the ties between child and biological family. The United Kingdom, for instance, emphasized that Article 8 “did not require that domestic authorities make endless attempts at family reunification.” The AIMMF (the Italian association of magistrates for children and the family) argued in favour of the approach of the majority in the Chamber judgment – finding no violation of Article 8 – arguing that they “had shown a greater understanding of X’s needs than what was reflected in the dissenting opinion.” Italy as well as Denmark warned the Court that it should refrain from engaging with the substance of these kinds of cases – as this would imply the Court acting as a fourth-instance tribunal – but that it should rather confine itself to exercising procedural review. However, at the same time, as far as substance is concerned, Italy vehemently argued in favour of prioritizing the rights of the child over those of the biological family: “it was not a rule that biological family ties should be preserved, and that should only be the case where it represented a benefit to the child in the specific case.” In addition, Italy raised issues with long-term care, stressing that “children in care lived in limbo between biological parents and substitute carers, with resulting problems such as loyalty conflicts.”
“Organized retreat” from substantive protection
In the light of the strong contestation surrounding the Grand Chamber case, the outcome of the judgment does read a bit as much ado about nothing. While the TPI’s push and pull the Court in different directions as far as the substance is concerned, the judgment seems to suggest that one should give up on trying to steer the Court in a different direction.
At least on paper, the Court’s general principles still seem to favour a solution that facilitates the continuation of family ties:
“Generally, the best interests of the child dictate, on the one hand, that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to ‘rebuild’ the family […]” (§ 207)
“As regards replacing a foster home arrangement with a more far-reaching measure such as deprivation of parental responsibilities and authorisation of adoption, with the consequence that the applicants’ legal ties with the child are definitively severed, it is to be reiterated that “such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child’s best interests’ […].” (§ 209)
One may however wonder whether these substantive principles are still worth the paper they are written on, if the Court is ultimately unwilling to assess the substance of these kinds of cases. The Court justifies its subsidiary approach by emphasizing
“that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area.” (§ 210)
While this may arguably be a good reason for the Court to act prudently in this sensitive area, reading the case as a whole makes one wonder what kinds of signals the Court’s case law still gives to child protection authorities. The only clear lesson to domestic authorities that can be drawn from the judgment concerns the need to make decisions on the basis of up-to-date information. However, this is hardly revolutionary and quite self-evident really. When executing the judgment, it will probably be easy for Norway to get away with claiming that the procedural flaw concerned was isolated in nature and that consequently there is no need to change administrative practices at all. This is a missed opportunity for the Court, as the crux of the case is the authoritarian and paternalist character of the Norwegian child protection system, in which the rights of the biological family are more readily sidelined than in most European countries in the light of what authorities assume to be the best interests of the child. Norway has been criticized both for the intrusive character of its interventions in family life and for the discriminatory impact in practice, as migrant family are considered to be more likely to be targeted. As such an administrative culture is at odds with the strong substantive principles set out above, the Court should have addressed this question head-on.
Unfortunately, the Court’s “organized retreat” from substantive protection in this area risks turning the ECHR into an empty promise for affected families. Given the passage of time, it is inconceivable that the harm suffered by the applicants can still be undone. The Court itself has repeatedly held that “[w]hen a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited” (e.g. K. and T. v. Finland). In this regard, it must also be noted that the case has been pending before the Court for almost 6,5 years (the application was filed in April 2013), which constitutes a blatant failure of the Court to live up to its own standards that cases involving parental separation must be dealt with swiftly “as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live” (Strand Lobben § 208).
In sum, as a result of the Court’s unwillingness to tackle administrative cultures and practices that are at odds with substantive human rights standards, all that is left is the micromanagement of domestic processes at a moment in time in which no useful decision can still be made for the applicant. If this truly is the role the Court sees for itself in this area, one may wonder what the point really is of continuing to invest Court resources in these kinds of cases. Rather than entering the Age of Subsidiarity, cases like Strand Lobben show that the Court should be careful that its “organized retreat” does not lead it to the Age of Redundancy instead.