Information Note on the Court’s case-law 257
Judgment 10.12.2021 [GC]
Respect for family life
Shortcomings in decision-making process resulting in severance of mother-child ties, in a context of different cultural and religious backgrounds of mother and adoptive parents: violation
Facts – The applicant, a Somali national, was granted refugee status in Norway in June 2010; she was accompanied by her son, X, who had been born a few months earlier in Kenya. In December 2010 X was placed in emergency care by the social services. Following a decision of the County Social Welfare Board (“the Board”) that same month he was placed into ordinary foster care with a Christian family, while the applicant had argued he should go either to her cousins or to a Somali or Muslim family. The applicant was granted four supervised contact sessions with X per year. She appealed and in September 2011 the District Court upheld the care order but increased her contact rights to one hour, six times per year. She did not lodge a further appeal. In September 2013 the social-welfare authorities applied to allow the foster family to adopt X, which would lead to the applicant having no contact, and for the applicant’s parental rights to be removed. The applicant appealed: she did not ask for X’s return as he had spent a long time with foster parents to whom he had become attached, but she sought contact so that he could maintain his cultural and religious roots. At final instance, in May 2015, the High Court authorised X’s adoption, after having examined, among other questions, the ethnic, cultural and religious aspects of the proposed adoption. The applicant was refused leave to appeal to the Supreme Court.
The applicant complained under Articles 8 and 9 of the Convention. She also relied on Article 2 of Protocol No.1. In a judgment of 17 December 2019, a Chamber of the European Court held, unanimously, that there had been a violation of Article 8. The case was referred to the Grand Chamber at the applicant’s request.
(a) Scope of the case – As delimited by the Chamber’s admissibility decision, the case only concerned the applicants’ complaints as to the deprivation of parental responsibility and the authorisation for the adoption of her son and thus the domestic proceedings and decisions from 2013 to 2015. However, some regard had to be had to the preceding proceedings and decisions from 2010 to 2011 as to foster care and the applicant’s contact rights.
(b) Legal characterisation of the applicant’s complaint – The applicant’s complaints under the provisions invoked all concerned the same measures, which, according to the Court’s case-law, was invariably considered under Article 8 of the Convention. The question arose as to whether and to what extent they attracted the application of Article 9 and/or Article 2 of Protocol No. 1. The Convention institutions had on certain occasions been called upon to examine complaints formulated under the latter provision, in addition to the complaint under Article 8, in regard to the choice of foster home. However, they had not elucidated the reach of this provision beyond affirming that the authorities must have due regard to the parents’ right thereunder. No review of the instant case was required with reference to Article 2 of Protocol No. 1 bearing in mind first, that most cases examined under that provision and the principles developed in the Court’s case-law concerned the obligations of the State in relation to institutionalised education and teaching; and second, that the applicant had not relied on that provision in her initial application to the Court as declared admissible by the Chamber.
As per Article 9, for a parent to bring his or her child up in line with one’s own religious or philosophical convictions may be regarded as a way to “manifest his religion or belief, in … teaching, practice and observance”. It was clear that when a child lived with his or her biological parent, the latter might exercise Article 9 rights in everyday life through the manner of enjoyment of his or her Article 8 rights. To some degree he or she might also be able to continue doing so where the child has been compulsorily taken into public care, for example through the manner of assuming parental responsibilities or contact rights aimed at facilitating reunion. The compulsory taking into care of a child inevitably entailed limitations on the freedom of the biological parent to manifest his or her religious or other philosophical convictions in his or her own upbringing of the child. It was, however, appropriate to examine the applicant’s complaint relating to the adverse effect of the choice of foster home in regard to her wish that her son be brought up in line with her Muslim faith, as an integral part of her complaint concerning her right to respect for her family life as guaranteed by Article 8, interpreted and applied in the light of Article 9, rather than as a separate issue.
(c) Article 8 read in the light of Article 9 – The impugned measures had entailed an interference with the applicant’s right to respect for her family life, had been accordance with the law, and pursued the legitimate aims of the protection of her son’s “health and morals” and his “rights”. Hence, the crucial question was whether they had been “necessary in a democratic society”, including whether the domestic authorities had had due regard to the applicant’s interests protected by the Article 9 freedom. This approach was consonant with the standard reflected, inter alia, in the UN Convention on the Rights of the Child, notably its Article 20(3), whereby due regard shall be paid, inter alia, to the child’s religious, ethnic and cultural background. That standard in substance corresponded to and was in compliance with the requirements of the Convention.
The High Court had accepted the applicant’s view at the relevant time that continued foster care would have been in X’s best interests. Thus, it appeared that at the time of the impugned proceedings the applicant’s interest in avoiding adoption primarily stemmed from the final and definitive nature of the measure and that it would lead to her son’s religious conversion, contrary to her own wishes. Since the foster parents did not wish a so-called “open adoption”, an arrangement which included post-adoption contact visits, adoption would have as a consequence the loss, de facto and de jure, for the applicant of any right to future contact with her child. Regardless, however, of the applicant’s acceptance that X’s foster care could continue and of whether the domestic authorities had been justified in considering long-term foster care for X were he not to be adopted, she and her son retained a right to respect for family life under Article 8. The fact that she had not applied for family reunification had not dispensed the authorities from their general obligation to consider the best interests of X in maintaining family ties with the applicant, to preserve their personal relations and, by implication, to provide for a possibility for them to have contact with one another in so far as reasonably feasible and compatible with X’s best interests.
The proceedings before the Board and the courts had been extensive and thorough with, inter alia, expert testimony by psychologists. However, the process leading to the withdrawal of parental responsibility and consent to adoption showed that the domestic authorities had not attempted to perform a genuine balancing exercise between the interests of the child and those of his biological family. Instead of trying to combine both sets of interests, they had focused on the child’s interests and had not attached sufficient weight to the applicant’s right to respect for family life, in particular to the mother and child’s mutual interest in maintaining their family ties and personal relations and hence the possibility for them to maintain contact. In this context, the Court was not persuaded that the competent domestic authorities had duly considered the potential significance of the fact that the applicant had not applied to have the care order lifted, but had merely opposed adoption on the grounds that she wished to maintain a right of contact with her child.
As the High Court’s decision had been largely premised on an assessment of X’s attachment to his foster home, the factual basis on which it had relied in making that assessment appeared to disclose shortcomings in the decision-making process. Its decision had been taken in a context where there had in fact been very little contact between the applicant and X from the outset following his placement in care. The sparse contact between them after the issuance of the care order provided limited evidence from which to draw clear conclusions about whether it would have been in X’s best interests when the impugned decision had been taken, that the applicant be given no right to future contact with him. Further, the decision had focused essentially on the potential effects of removing X from his foster parents and returning him to the applicant, rather than on the grounds for terminating all contact between X and the applicant. Thus, it appeared that the High Court had 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. The Court also had reservations regarding the emphasis that had been placed on the need to pre-empt the applicant from resorting at some future point to legal remedies to contest the care order or the arrangements for visiting rights; the exercise of judicial remedies by biological parents could not automatically count as a factor in favour of adoption and the exercise of procedural rights formed an integral part of their right to respect for their family life under Article 8.
The High Court had acknowledged that the interest in ensuring X’s attachment to the foster home environment had to be balanced also against aspects relating to ethnicity, culture and religion, and religious conversion, particularly in the light of the differences between the applicant’s and the prospective adoptive parents’ religious faiths. In this connection, it had taken evidence from two expert witnesses, examined sources of international law – relying in particular on Article 20(3) of the United Nations Convention on the Rights of the Child -, and how the applicant would have perceived adoption given her religious values. It had presumed – as there had been a serious shortage of foster parents from minority backgrounds – that there had been no foster parents available who had a cultural background more similar to that of the applicant. Furthermore, the High Court had looked into what could be considered as X’s own values at the time of the possible adoption, in the light of his upbringing by his foster parents and had observed that the religious differences in question could have also created difficulties with regard to continuing the foster home arrangement. It had concluded that decisive importance ought to be attached to how adoption would create clarity, strengthen the development of X’s identity, and make him an equal member of the family with which he lived. Lastly, it also transpired from the High Court’s reasoning, that the choice of foster home made in 2010 had had a significant bearing on what was considered to be in X’s best interests for its 2015 assessment of the authorisation for adoption.
The Court noted that the applicant’s rights under Article 8 of the Convention, as interpreted in the light of Article 9, could not be complied with only by ultimately finding a foster home which corresponded to her cultural and religious background. In this connection, domestic authorities were bound by an obligation of means, not one of result. It also did not question the fact that, on the basis of the information available, the actions of the authorities had included efforts, which ultimately proved unsuccessful, to find a foster home for X at the outset that had been more suitable from this perspective. However, as found by the Chamber, the arrangements made thereafter as to the applicant’s ability to have regular contact with her child, culminating in the decision to allow for X’s adoption, had failed to take due account of the applicant’s interest in allowing X to retain at least some ties to his cultural and religious origins.
Consequently, the reasons advanced in support of the impugned decision had not been sufficient to demonstrate that the circumstances of the case had been so exceptional as to justify a complete and definite severance of the ties between X and the applicant, or that the decision to that effect had been motivated by an overriding requirement pertaining to X’s best interests. In view of the gravity of the interference and the seriousness of the interests at stake, the decision-making process leading to the applicant’s ties with X being definitively cut off, had not been conducted in such a way as to ensure that all of her views and interests had been duly taken into account.
Conclusion: violation (unanimously).
Article 41: No claim made.
Article 46: In a case of this type, in general the best interests of the child must be a paramount consideration also when the Court was deciding whether to indicate any individual measures to be taken under this provision. X and his adoptive parents currently enjoyed family life together and individual measures could ultimately entail an interference with their respect for that family life. Thus, the facts and circumstances relevant to Article 46 could raise new issues which were not addressed by the present judgment on the merits. Moreover, although the applicant had not requested any measure of a more general character, in so far as there might be a certain systemic issue in question, the respondent Government had shown that they had made efforts to implement the judgments rendered by the Court concerning various types of child welfare measures in which violations of Article 8 had been found and that the respondent State was in the process of enacting new legislation. In view of the above, the Court did not find that any measures were to be indicated under Article 46.
(See also Strand Lobben and Others v. Norway [GC], 37283/13, 10 September 2019, Legal Summary)