Abdi Ibrahim v. Norway: A new Zeitgeist regarding (intercultural) adoptions at the ECtHR

By Elvira Loibl

Introduction

The case concerned the decision by the Norwegian authorities to allow the adoption of a child by a ‘Norwegian Christian’ foster family against the wishes of his mother, a Muslim Somali refugee. The judgment seems to reflect the new Zeitgeist regarding adoptions, which came to be viewed more critically within the past couple of years. This is due to the serious abuses and human rights violations that have been uncovered in past adoptions as well as the fact that adoptions are highly invasive as they cut the child off from his family and culture of origin. The judgment of the ECtHR’s Grand Chamber in Abdi Ibrahim v. Norway strengthens the position of parents, whose children have been removed, and whose interests traditionally played a minor role in the welfare systems. It further emphasises the importance of the child to maintain ties with their family and their cultural and religious origins.

Facts

The case concerns a Somali woman who immigrated to Norway in 2010 as a single underage mother with her one-year old son where she was granted asylum status. In order to be assisted in caring for her child, the applicant had stayed at a parent-child-centre, which notified the child welfare services that it considered the applicant’s child to be at risk. The child welfare services issued a care order regarding the applicant’s son, arguing that the case clearly involved gross physical and emotional neglect. The child was subsequently placed with ethnically Norwegian foster parents, who were active Christians, even though the applicant had requested that her child should be cared for by her cousin or a Somali or a Muslim family. The Country Social Welfare Board, however, had claimed that it could not find a foster family with a more similar cultural background and that it considered it more important that a placement was chosen on the basis of the child’s need for stability. For three and a half years, the applicant was allowed very limited contact with her son.

In 2013, the child welfare services applied to the County Social Welfare Board for consent to the child’s adoption by his foster parents, which would lead to the applicant losing her parental responsibilities and her contact rights. The foster parents were unwilling to accept an open adoption with future contact sessions between the applicant and her son and intended to baptise the adopted child and change his name. The Board granted the adoption arguing that this would be in the child’s best interests as it would create stability and security for him. It stressed the importance that the child’s identity would not be hidden and that he be informed of his biological mother and her culture, which the foster parents claimed to be willing to do. The Board realised that the child’s contact with his mother in the future could potentially help to promote identity-forming values related to his identity, but argued that this would not be a decisive argument against the adoption. It claimed that, considering the child’s negative reactions after contact sessions with his mother, safeguarding the child’s personality development was to be considered of greater importance than the cultural aspect. In 2014, the District Court essentially endorsed the Board’s grounds for approving the adoption.

The applicant appealed against the District Court’s decision. She did not apply for the care order to be lifted and to be reunited with her son because she acknowledged that he had become attached to his foster parents and that removing him from them would be difficult. However, she underlined her son’s need to keep in touch with his cultural and religious roots. This is why, she argued, the possibility for future contact with her should be kept open. However, in 2015, the High Court, having heard and relied on the witness statements of two experts in Islam regarding the child’s placement, dismissed the applicant’s appeal and allowed the adoption. In its decision, the Court placed great emphasis on the child’s attachment to his foster parents and his need of stability. Adoption, the Court argued, would rule out the possibility for the applicant to request the return of her child into her care and remove the potential for conflict between the applicant and the foster parents relating to their different cultural and religious views. It furthermore stressed that the applicant’s son had already identified with his foster family’s values and that consideration of his biological family’s ethnicity, culture and religion had to carry less weight. The adoption was, thus, to be considered in the child’s best interests.

In 2016, the applicant took the case to the ECtHR, claiming that the withdrawal of her parental responsibilities with regard to her son and the authorisation for his adoption violated her right to respect for family life (Article 8) as well as her right to freedom of religion (Article 9) under the ECHR.

Findings of the ECtHR

The Chamber found that there had been a violation of Article 8 ECHR, arguing that the applicant’s views and interests had not been duly taken into account. The applicant successfully requested that her case be referred to the Grand Chamber, arguing that insufficient weight was attached to Article 9 ECHR. Yet, the ECtHR did not examine the applicant’s complaint regarding the placement of her son into a non-Muslim family as a separate issue under Article 9, but as an integral part of the applicant’s complaint concerning her right to respect for family life.

The ECtHR did not question that the withdrawal of the applicant’s parental responsibilities and the authorisation for her son’s adoption pursued legitimate aims according to Article 8(2) ECHR, namely the protection of the child’s ‘health and morals’ and his ‘rights’. However, it assessed whether these impugned measures were really ‘necessary in a democratic society’ for the pursuit of these legitimate interests. Referring to its judgement in Strand Lobben and Others v. Norway (a case which also concerned the decision to replace a child’s foster care with adoption), the Court reiterated a number of principles to be taken into account when assessing the necessity of child welfare measures. Among others, it stressed the principle of the child’s best interests, which are of paramount importance in all decisions concerning children. The ECtHR stressed that it is generally in the child’s best interests to maintain ties with their family, unless there are specific reasons that indicate otherwise. This is because, the Court acknowledged, severing family ties entails cutting a child off from their roots. Therefore, in cases were family life was restricted, national authorities have a positive obligation under Article 8 to facilitate family reunification as soon as reasonably feasible. They have the duty to make sure that everything is done to preserve and, if appropriate, rebuild family relations. Hence, adoption, which entails a permanent severance of family ties, should be

‘permissible only in very exceptional circumstances and could only be justified if motivated by an overriding requirement pertaining to the child’s best interests (see Strand Lobben and Others, §§ 206 and 207). That is so since it is in the very nature of adoption that no real prospects of rehabilitation or family reunification exist and that it is instead in the child’s best interests that he or she be placed permanently in a new family (ibid., § 209). Given the nature of the issues and the seriousness of the interests at stake, a stricter scrutiny is necessarily called for in respect of such decisions (ibid., §§ 209 and 211).’

para. 149

The fact that the applicant did not apply to be reunified with her son, according to the ECtHR, did not dispense the authorities from this obligation, which had to provide for a possibility for the applicant and her child to stay in contact with each other. The Court claimed that the Norwegian authorities in this case only focused on the child’s best interests and the potential effects of removing the child from his foster parents and returning him to his mother. However, they failed to consider any possibility to preserve contact between her and her child. The ECtHR stated:

‘In this respect, the High Court appears to have given more importance to the foster parents’ opposition to “open adoption” than to the applicant’s interest in the possibility of a continued family life with her child through contact with him.’

para. 153

The ECtHR stressed that the possibility that biological parents might request the return of the child into their care cannot count as a factor in favour of adoption. This is because exercising judicial remedies in order to have a care order lifted or restrictions on contact with their child relaxed form an integral part of their right to respect for their family life. Thus, the ECtHR concluded, the reasons that the Norwegian authorities advanced in their decision on the adoption ‘were not sufficient to demonstrate that the circumstances of the case were so exceptional as to justify a complete and definite severance of the ties between X and the applicant.’ As regards the Article 9 dimension in this case, the ECtHR considered that the decision to approve the adoption also failed to take due account of the applicant’s interest in allowing her child to retain at least some ties to his cultural and religious origins.

Comment

Abdi Ibrahim v. Norway is one of a series of child welfare cases in which Norway was found to be in violation of Article 8 ECHR (Strand Lobben and Others v. Norway (2019), A.S. v. Norway (2019), K.O. and W.M. v. Norway (2019), R.O. v. Norway (2021) etc.). All these cases concerned the removal of a child from their parents who were considered to be unable to care for their child. In most of these cases, the restricted contact between the child and their parents and the decision to replace the child’s foster care with adoption were found to be violating the parents’ right to respect for family life. This led critics to claim that the current Norwegian child welfare practice systemically violates the ECHR as children are too quickly cut off from their parents whose rights are not sufficiently respected.

The Grand Chamber’s judgment in Abdi Ibrahim v. Norway seems to reflect the new Zeitgeist regarding adoptions. For many decades, the adoption of a child that could not be cared for by their parents was considered to be in the child’s best interests as it provided the child with stability and permanency. The fact that the child was cut off from their biological family and their culture of origin was accepted or even considered to be beneficial for the child who could start a new life without any interferences from their biological parents. However, within the past years, adoption, particularly full adoption, which includes the total severance of family ties, came to be viewed more critically. In many countries, inquiries into past adoption practices uncovered systemic abuses, sometimes followed by an official apology offered to the victims. Examples include the adoption of children that were forcefully separated from their unwed mothers or their indigenous families in numerous Western countries in the 19^th and 20^th centuries (see, for example, ‘Baby Scoop Era’ or the ‘Stolen Generations’). Whereas this practice was considered to be serving the children’s best interests back then, it is now condemned as an outright human rights violation. Many of its victims are still looking for their family members and greatly suffer from the fact that their family roots and identity had been cut off.

Also intercountry adoption came to be viewed more critically. This social practice was for many years considered to be the ultimate humanitarian deed that saved parentless children from a life in an institution. However, recent reports and inquiries into past adoptions document systemic abuses and human rights violations and show that in many cases the adoption was not necessary. In addition, more and more internationally adopted individuals that have grown up request to know more about their culture of origin and seek to reconnect with their families, challenging the initially held idea that a child is a blank sheet that can just easily be transferred to another family and cultural environment. Numerous critics claim that full adoption would mainly serve the interests and needs of the adopters, many of whom do not want the biological family to be involved, disregarding the interests of the child and their biological family to keep contact. Stressing the importance that children maintain their roots and identity, several experts now advocate for full adoption to be abolished and replaced by simple or open adoption, which allows the child to stay connected with their biological family and culture of origin.

The ECtHR seems to pick up this critical stance towards adoption. It does not easily accept the argument that an adoption was in the child’s best interest, but requires a strict necessity assessment, taking into account the interests of both the child as well as their biological parents. Referring to its judgement in Strand and Lobben v. Norway, the Court stressed the positive obligation of the authorities to do what they can to reunify a child with their family after they were separated. It acknowledged that it is generally in the best interests of the child to maintain ties with their family and emphasised that adoption, which is highly invasive as it entails a permanent severance of family ties, should be considered only in exceptional circumstances. In Abdi Ibrahim v. Norway, the Court then particularly emphasised that the interests of the adopters, e.g. in a full adoption, cannot be favoured over those of the parents and their child to maintain ties. Furthermore, the chance that the child’s parents might request the return of their child cannot be used as an argument for an adoption. In this sense, the judgment can be understood as strengthening the position of parents, whose children have been removed, and whose interests and needs traditionally played only a subordinate role in the child welfare system. Whereas Strand and Lobben v. Norway only focussed on the need to keep the family preserved, Abdi Ibrahim v. Norway went further by emphasising also the interests of the parents to allow the child to retain ties to his cultural and religious origins. Referring to Article 20(3) UNCRC, the Court in its judgment acknowledged the importance of a child to maintain their original identity. This Article lays down that when considering child care measures ‘due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background’, a requirement that is often neglected in cases of intercultural adoption.

Conclusion

The ECtHR’s judgement in Abdi Ibrahim v. Norway sends out a strong message to ‘adopter-friendly’ jurisdictions that tend to prioritise the interests and needs of adopters over those of the children and their biological parents to maintain ties. Acknowledging the importance of the child to maintain ties with their family and their cultural and religious origins, the ECtHR requires a strict assessment of the question whether adoption was really necessary. Based on this recent case law, many countries cannot continue adoption business as usual.