Information Note on the Court’s case-law 232
Strand Lobben and Others v. Norway [GC] – 37283/13
Judgment 10.9.2019 [GC]
Respect for family life
Shortcomings in decision-making process resulting in adoption of vulnerable child by foster parents: violation
Facts – In September 2008 the first applicant, who was single, gave birth to a child X (the second applicant). The child-protection services had held that she was in need of guidance on how to care for X. She therefore agreed to stay with her son at a family centre during the first months of the child’s life, so that her ability to give him proper care could be evaluated. Three weeks later she withdrew her consent. However, the child-protection services obtained, first, an emergency care order in October 2008, in application of which the child was entrusted to a foster family, then a permanent care order in March 2009. In December 2011 the Social Welfare Board issued an order removing the mother’s parental authority and authorising the foster parents to adopt the child. This order was upheld by the City Court in February 2012. Although the first applicant’s general situation had improved (she had married and had had a daughter, for whom she seemed able to care), it was held that she was not sufficiently capable of seeing or understanding the special needs of the child, who was described as vulnerable by experts and who, if those needs were not met, was at significant risk of failing to develop normally. The child’s fundamental attachment was with his foster parents, as he had lived with them almost since birth, and adoption would give him a sense of belonging and security for longer than a placement in a foster family.
In a judgment delivered on 30 November 2017 (see Information Note 212), a Chamber of the Court concluded, by four votes to three, that there had been no violation of Article 8. In the Court’s view, given that there had been no positive development in the first applicant’s maternal competence in the contact situations throughout the three years in which she had had rights of access, that the decision-making process had been fair, and having regard to the fact that the domestic authorities had had the benefit of direct contact with all the persons concerned, the contested measures had been justified by exceptional circumstances and had been motivated by an overriding requirement pertaining to the child’s best interests.
On 9 April 2018 the case was referred to the Grand Chamber at the applicants’ request.
Law – Article 8: Having regard to its temporal jurisdiction, the Court would focus its attention on the review carried out by the City Court in its judgment of February 2012. The City Court had been composed of a jurist, a psychologist and a layperson. It had held a three-day hearing that the first applicant attended together with her counsel and in which twenty-one witnesses, including experts, had given testimony. In addition, it had acted as an appeal instance and similar proceedings had previously been conducted by the County Social Welfare Board, which had a composition similar to that of the City Court and had given similarly extensive reasoning. Its judgment had been subject to review in leave-to-appeal proceedings before the High Court, which were in turn examined by the Supreme Court Appeals Board.
The imposition of the impugned measures depended mainly on the biological parent’s capacity to care for the child. According to the City Court, it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, it appeared that removing him could entail serious problems for him. There was nothing in the case file to indicate that the first applicant’s parenting abilities had improved since the appeal court’s judgment of April 2010. The first applicant did not realise that she had neglected X and that she was unable to focus on X and what was best for him. The applicant had married and had had a second child, but the City Court had not considered this factor to be decisive in respect of her capacity to care for X. He was a particularly vulnerable child who had experienced serious and life-threatening neglect during the first three weeks of his life. The domestic court had also taken account of the way in which the mother-child contact sessions had proceeded. Furthermore, since X had lived in his foster family for three years and did not know the first applicant, it had concluded that returning X to her would require, among other things, a great capacity to empathise with and understand the child and the problems that he would experience, something that the first applicant and her family were incapable of providing.
The Court was fully conscious of the primordial interest of the child in the decision-making process. However, the domestic authorities had not attempted to perform a genuine balancing exercise between the interests of the child and his biological family, but had focused on the child’s interests instead of seeking to combine both sets of interests. Moreover, they had not seriously contemplated any possibility of the child’s reunification with his biological family. In that context, the Court, in particular, was not persuaded that the competent domestic authorities had duly considered the potential significance of the fact that at the time when the first applicant applied to have the care order lifted or, in the alternative, to be granted extended contact rights, she had married and had a second child. In this regard, as the City Court’s decision had been largely premised on an assessment of the first applicant’s lack of capacity to provide care, the factual basis on which it relied in making that assessment appeared to disclose several shortcomings in the decision-making process.
The decisions under consideration had been taken in a context where there had only been very limited contact between the first applicant and X. The organisation of the contact arrangements had not been particularly conducive to enabling them to bond freely. Although the contact sessions had often not worked well, it appeared that almost nothing had been done to try out alternative contact arrangements. Those sparse contacts had thus provided limited evidence from which to draw clear conclusions about the first applicant’s caring skills.
In addition, despite a request to that effect, no updated expert reports had been ordered. When the impugned judgment had been delivered, the two existing reports were two years old. Only one of the reports had been based on observations of the interplay between the applicants, and then only on two occasions. The lack of a fresh expert examination had substantially limited the factual assessment of the first applicant’s new situation and her caring skills at the relevant time. In those circumstances, it could not reasonably be held against the first applicant that she had failed to appreciate that repeated legal proceedings could be harmful for the child in the long run.
In addition, the City Court had merely referred to the brief description of X’s vulnerability given by the experts, namely 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. It did not provide any information on how that vulnerability could have continued despite the fact that he had lived in foster care since the age of three weeks. Having regard to the seriousness of the interests at stake, it had nevertheless been incumbent on the competent authorities to assess X’s vulnerability in more detail in the proceedings under review.
In those circumstances, taking particular account of the limited evidence that could be drawn from the mother-child sessions that had been organised, 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 although this was a central factor in the City Court’s assessment, and having regard also to the lack of reasoning with regard to X’s continued vulnerability, the decision-making process which had led to the impugned decision of February 2012 had not been conducted in such a way as to ensure that all the views and interests of the applicants had duly been taken into account. Thus the procedure in question had not been accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake.
Conclusion: violation (thirteen votes to four).
Article 41: EUR 25,000 to the first applicant in respect of non-pecuniary damage; the finding of a violation constituted in itself sufficient just satisfaction in respect of the non-pecuniary damage sustained by the second applicant.
(See also Aune v. Norway, 52502/07, 28 October 2010, Information Note 134; and the Factsheet on Children’s rights)