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. Continue reading
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: Continue reading
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? Continue reading
By Simona Florescu PhD fellow, Leiden Law School, the Child Law Department
On 18 June 2019 the European Court of Human Rights found a violation of Article 8 of the Convention in the case of Haddad v Spain. The main reason was that the Spanish authorities did not discharge of their positive obligations to facilitate reunification between the applicant and his daughter (who had been placed in care). The applicant was the child’s father who at the time of placement was suspected of domestic violence against his children and their mother. About one year and four months had elapsed by the time the applicant was legally able to contact his children. During this time, his youngest child (one year and a half old at the time) had been living with foster parents and the authorities were envisaging her adoption.
In addition to finding a violation, the Court called upon the Spanish authorities to re-examine the situation in light of the judgment. Thus, arguably the Spanish authorities are to endeavor to secure the applicant’s reunification with his daughter. Continue reading
By Tine Van Hof, PhD researcher at the University of Antwerp
On the 18th of June 2019, the European Court of Human Rights gave judgment in the case of Vladimir Ushakov v. Russia (application no. 15122/17). The Court held by six votes to one that there has been a violation of the applicant’s right to family life under Article 8 ECHR. The case concerns Mr Ushakov who sought the return of his daughter V. to Finland after the mother I.K. took her to Russia. The Russian court refused to order the return of the child and based this decision on Article 13(1)(b) of the Hague Convention on Child Abduction. The Court carefully applies the general principles that have emerged in its previous case law on international child abduction. In that respect, the case is not very noteworthy. However, the dissenting opinion of Judge Dedov, in which he is critical of the Hague Convention, invites for discussion. This post will in particular respond to what Judge Dedov has defined as “deficiencies” of the Hague Convention. Continue reading
Simona Florescu PhD fellow, Leiden Law School, the Child Law Department
Parental child abduction has been a frequent occurrence for the European Court of Human Rights with the case of O.C.I. and others v Romania being the latest in a series of more than 70 applications. The Court decided these cases in several formations, ranging from the Grand Chamber, to the Chamber and most recently to the Committee of three judges. These formations are indicative of the importance the Court attaches to the issues raised by parental child abduction cases. On the basis of O.C.I. and Others v Romania, we could thus infer that child abduction has become a matter of well-established case law which does not require a too detailed analysis. This may well be the perspective of the ECtHR, however, child abduction is anything but well-established case law and it is precisely in these cross border cases that the Court can and should make a significant contribution in standard setting.
It is for this reason that I have decided to write this blog post. I argue that the Court – and human rights practitioners in general – need to be alert of the difficulties that cross border cases raise for individuals. In these cases, domestic courts of one country are expected to defer the analysis of the merits of the case to the domestic courts of the other country. In the midst of such deferral, and because there is no supranational supervision (other than that of the ECtHR), there is a risk of lower or no protection for human rights. Therefore, dispensing with this case in a Committee of three judges does not do justice to the many complexities raised by child abduction cases. I argue that the case of O.C.I. and others v Romania is one example where, in my opinion, there is more at stake than what the Court makes of it. Continue reading
Claire Loven – PhD researcher at the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University)
On 20 June 2019 the European Court of Human Rights (ECtHR or Court) delivered a judgment in A and B. v. Croatia on the investigation of allegations of child sexual abuse. A, the mother of B, accused B’s father of sexually abusing the four-year-old B. After the Croatian State Attorney’s Office decided against prosecuting the father, finding that it could not conclude that C had committed any prosecutable offence, A and B lodged a complaint before the Court. They complained about the failure of the Croatian authorities to provide a proper response to allegations of child sexual abuse. By four votes to three the Court found that there had been no violation of the procedural aspects of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life). The sharp division within the Chamber is not only reflected in the bare majority vote on the outcome, but also in the fact that, together, the concurring and dissenting opinions are just as long as the Court’s judgment. The joint concurring opinion by Judges Koskelo, Eicke and Ilievski and the joint dissenting opinion by Judges Sicilianos, Turković and Pejchal focus on the scope of the case, whilst Judge Wojtyczek raises the issue of the father not having a role in the Court’s proceedings. In this blogpost, I leave the issues raised by Koskelo et al. and Sicilianos et al. for other commentators, and focus on the particular issues raised by Wojtyczek. Continue reading