Pedersen et al v. Norway: Progress towards child-centrism at the European Court of Human Rights?

By Katre Luhamaa and Jenny Krutzinna, researchers at the Centre for Research on Discretion and Paternalism (University of Bergen)

Introduction

In February this year (2020), the European Court of Human Rights (ECtHR, Court) delivered two further judgments relating to the Norwegian child protection system (Hernehult v. Norway and Pedersen et al. v. Norway). In both of these, the ECtHR concluded that Norway violated the right to respect for family life (Article 8) when implementing child protection measures. This analysis focuses on Pedersen et al. v. Norway, where the Court addressed the issues of adoption and post-adoption contact.

National adoption proceedings are often hidden from public scrutiny. Indeed, research into the legal practice of eight European states showed that there are minimal accountability measures available in these cases (Burns et al. 2019). Thus, the cases that face the international scrutiny of the ECtHR give us a rare insight into the national argumentation and practice and reveal the complexity of these public care measures.

Facts

Pedersen et al. is based on the complaint of two biological parents, a Philippine-born mother and a Norwegian father, and their biological son X. X was taken into emergency care, when he was two and a half months old, as his biological parents (the applicants) were mentally ill and incapable of looking after him. Later, he stayed with his mother at the parent-child unit to facilitate his return to his parents. However, this stay was ended prematurely by the child protection services (CPS) due to of a negative development in X and observed deficiencies in the mother’s care. The child was removed again, and a care order was made, setting contact to two hours twice a year, as the CPS took the view that the placement would be long-term. The District Court did not allow the appeal against the care order.

Two years later, the biological parents applied to end the care order, and the CPS applied for the removal of parental rights and an adoption order, which the County Board, an official body responsible for making these decisions, granted. Supervised post-adoption contact was fixed at four hours, twice per year. The District Court retained the adoption decision, as it found that the adoption was in the interests of the child, and set post-adoption contact at two hours, twice per year. Central to the adoption decision was the child’s attachment to his adoptive parents. The District Court did not substantively assess the caring capacities of the biological parents. The High Court revoked the adoption judgment, as it found that long-term foster care was in the interests of the child together with further contact visits with his biological parents to help the child to better know his cultural background. The Supreme Court quashed the decision of the High Court and retained the adoption decision of the District Court. Their assessment focused on the child’s attachment to his foster parents and found that post-adoption contact as set by the District Court was sufficient to retain cultural ties.

The applicants then turned to the ECtHR and complained that the authorities’ decision to deprive them of their parental responsibilities and to authorise his adoption and the decision on post-adoption contact violated their right to respect for their family life under Article 8 of the Convention.

Judgment

The Court’s analysis was formally limited to the domestic authorities’ decision to remove parental responsibilities and to authorise X’s adoption, and the post-adoption contact. Nevertheless, the Court found it necessary to analyse the case ‘as a whole’, thus, expanding the scope of analysis (para 66).

The Court found that national legal proceedings respected the rights of the biological parents even though the Supreme Court did not have the benefit of direct contact with the participants (para 63). The Court also considered that the factors discussed by the national court were all relevant:

[t]he Court takes note of the factors on which the Supreme Court relied when consenting to X’s adoption – in particular the need to secure X’s position in the foster home environment, his age and maturity, his lack of social ties to the first and second applicants, his having lived nearly all his life with his foster parents (regarding them as his own parents), the foster parents’ suitability to be his carers, and the damage that removing him from his foster home environment would entail – and considers that they were relevant factors, according to the Court’s case-law. (para 64)

There was no doubt that the child had a ‘family life’ with the foster parents when the adoption decision was taken (para 65). The child had existing ties with the adoptive family and, thus, adoption was not necessary to ensure bonding between the child and the adoptive parents. The central criticism of the Court focused on the fact that the authorities were responsible for the family breakdown, as they failed in their obligations to take measures to facilitate family reunification (para 68). Finally, the Court focused on maintaining contact between the child and the biological parents and found that such limited post-adoption contact did not allow the development of a meaningful relationship between the child and the biological parents.[i]

The Court concluded unanimously that Norway had violated the Article 8 rights of all three applicants, and found that Norway failed to take active measures to reunify the family (para 60) and to create a meaningful relationship between the child and his biological parents.

Comments

Three things stand out in the Pedersen judgment. First, the Court took the assessment of X’s family life very seriously, both in describing the de facto situation regarding the adoptive parents and in highlighting X’s right to develop a meaningful relationship with his biological parents. Here, the Court arguably stretched its decision-making remit by insisting the case be assessed ‘as a whole’ (para. 66), even though the initial placement order did not form part of the applicants’ complaint. From a child-centric perspective, this is promising, as using X’s lack of ‘meaningful relationship’ with his biological parents as justification for adoption would seem to reinforce the infringement of his right to respect for family life with his biological parents caused by restrictive contact arrangements after the initial care order. X was, after all, never given the opportunity to develop such a relationship with them due to the authorities’ earlier decisions. The Court thus seems to adopt a child-centric approach in insisting on a holistic assessment of the case. This acknowledges that the child benefits both from a stable and secure relationship with foster/adoptive parents and a meaningful and positive relationship through regular contact with the biological parents. The minimal extent of contact (two hours twice per year) set by the national courts did not support the creation of meaningful relationships, nor kept the child in touch with his cultural roots. Unlike the national courts, who stressed the need to support the cultural ties of the child and deemed the post-adoption contact as sufficient for those purposes, the Court merely mentioned the importance of cultural ties without further expanding on it as it had done in the previous judgment Ibrahim v Norway (para 64), which may, of course, have been due to X’s background being both Norwegian and Filipino, whereas in Ibrahim the child did not have any cultural connections to Norway. The Court’s primary concern in the present case seems to rest with the development of a meaningful relationship and not the mere upkeep of cultural connection.

Second, the Court considered the role of the child’s attachment to his adoptive and biological parents. Attachment is a central consideration in the Court’s analysis in adoption cases,[ii] which was also the case in Pedersen. Attachment considerations had been at the core of the national judgments, and the Court recognised the relevance of the child’s attachment, and accepted the importance of X’s de facto family relations with the adoptive parents, stating that the (adoption) ‘decision consolidated and formalised existing ties’ (para. 65). At the same time, the Court noted X’s lack of attachment to his biological parents, not due to their behaviour but as a result of the actions of the state. The authorities had allowed only limited contact between the biological parents and X from the start and treated the placement as long term from the outset, including failing to take positive steps to support family reunification. The Court has previously indicated that the parents’ willingness to accept services is relevant. In the current case, the mother stayed in the parent-child unit after the initial emergency removal to facilitate the return of X to his parents. The stay was terminated, because of a ‘negative development in X and deficiencies in the care that the first applicant had provided’ (para 10). This was the only service provided for the biological parents and the child. The judgment is silent on whether the state proposed other services and on the parents’ attitude towards the services. The Court is cautious here, stressing that the fact that the situation of the biological parents has improved does not mean that they can assume the care. Nevertheless, the Court points out that the state should aim to support the creation of meaningful relationships between the child and the biological parents.

Finally, the issue of the child’s position within the proceedings. X was a party to the proceedings but was not independently represented. The Court rejected the Government’s claim that there was a conflict of interest between X and his biological parents, referring to the argumentation and decision in Strand Lobben [GC]. The question of whether biological parents really are in the position to represent the child’s best interests, given their own interests, thus remains an issue. As adoption ends the legal relationship between biological parents and their child and shifts all legal rights to the adoptive parents, it seems at odds with a child-centric view that biological parents can represent both themselves and the child. The Court has previously requested a separate representative to the child, where there was a potential conflict between the interests of the child and the interests of the parent (A and B v Croatia). It has not, however, found that such conflict of interests is present in adoption cases and has not requested that the state appoints a separate legal representative for the child in adoption matters. Because the child is also not involved in the process in any other way, the lack of independent representation effectively means that the Court does not hear the child’s perspective separately from that of the biological parents.[iii] Indeed, there are no references to the views of the child in the current judgment even though the child was 12 years old at the time of the Court’s decision. Instead, the biological parents represent the interests of the child even though under the national law, their legal rights and obligations, including the right to represent the child, had been terminated and shifted to the adoptive parents. This limitation was discussed in the dissenting opinion to Strand Lobben, noting the complex nature of care order cases and highlighting that the child is not properly represented when the interests of the child are heard through the biological parents. Pedersen thus presents a missed opportunity to address the problem of representation critiqued after Stand Lobben. Maybe the Court’s approach will shift if a state actively proposes a separate legal representation for the child, but this remains to be seen.

Towards child-centrism at the European Court of Human Rights?

To conclude, Pedersen makes some progress in the shift towards child centrism at the ECtHR. In previous adoption from care cases, the Court typically focused on the rights of the adults in the case, with the child’s separate right to respect for family life being merely an afterthought.[iv] Here, Pedersen marks a modest turning point in that the Court’s emphasis of the child’s right to a meaningful relationship with his biological parents clearly indicates that contact arrangements that merely allow for knowledge of heritage are insufficient. This approach considers the child’s entire lived experience as relevant, adopting a child-centric perspective, notwithstanding the legal limitations on the issues the Court may rule on separately. What may have played a role here is the general criticism the Court has expressed previously with regard to Norway’s contact practices, which have been deemed too restrictive (e.g. K.O. and V.M. v Norway), although a systematic analysis of contact arrangements in Norwegian care order decisions is currently lacking.[v] On the other hand, a distinctive feature of the Norwegian system is that Norway allows ‘open’ adoptions and may implement post-adoption contact to allow the child to know their background and roots[vi] (see also Aune v Norway). However, the Court wanted Norway to go further from the limited contact and make sure that any contact facilitates meaningful relations:

The Court considers that while maintenance of contact between an adopted child and his or her biological parents, in a situation where there are clearly no prospects of reunification, may be a relevant factor in ensuring continuing respect for family life, the extremely limited nature of the contact arrangements in the present case – two hours twice a year – rendered them incapable even of allowing the development of a meaningful relationship. (para 70).

As it stands, the Court has recognised the benefits of post-adoption contact in Norwegian adoptions from care cases, but does not indicate whether such contact should be the norm for the protection of the child’s right to respect for family life. Importantly, the Court makes it clear in Pedersen that post-adoption contact alone does not suffice; the child must be given an opportunity to develop a ‘meaningful relationship’ with their biological parents. This concept introduces a new, qualitative element to the child’s right to respect for family life, which we believe has the potential for a significant child-centric shift in the way contact decisions are made and will have significant implications on national child protection agencies’ contact practices for children in long-term placements.

Unfortunately, the Court failed to shift its practice to allow for a better representation of the child. Instead, it took a step back from Strand Lobben, as there was no explanation why the adoptive parents were not a party to the proceedings. This skewed the complexity of the situation created by public care. In addition, the child – despite being an applicant in the proceedings – is not addressed as an individual rights-holder. The Court focused on the lack of supportive reunification measures for the biological parents but does not show how these deficiencies separately affected the rights of the child as an applicant. As such, the Court does not separate the different interests and rights of the three applicants but tacitly assumes that they are the same. Independent representation could have given the child a voice in the proceedings. It remains to be seen whether this approach continues in the other pending Norwegian child protection cases, or whether the Court will take the plunge and implement fully child-centric proceedings.

[i] The Norwegian Child Welfare Act (barnevernloven) does not specify the purpose of post-adoption contact. In the discussions by the working group leading to the adoption of law, a majority pointed out that the purpose of the contact is to “give the child the opportunity to have some contact with parents and thus gain knowledge of their origin (…)” and “not to secure an attachment with biological parents”. Innst. 209 L (2009–2010) Innstilling fra familie- og kulturkomiteen om endringer i adopsjonsloven og barnevernloven [in Norwegian].

[ii] Claire Breen and others, ‘Family Life for Children in State Care. An Analysis of the European Court of Human Rights’ Reasoning on Adoption without Consent’ [in press] International Journal of Children’s Rights.

[iii] For a brief note on the need to improve the practice of the courts with regard to child representation, see here.

[iv] Claire Breen and others (n1).

[v] Trond Helland (ed.), ‘A Comparative Analysis of the Child Protection Systems in the Czech Republic, Lithuania, Norway, Poland, Romania and Russia’ (17.01.2020).

[vi] For a recent report on adoption as a child protection measure in Norway, see Hege Stein Helland & Marit (2019) Adopsjon som barneverntiltak. Bergen: Universitetet i Bergen [in Norwegian].