A and Others v. Iceland – 25133/20 and 31856/20 (European Court of Human Rights)

Information Note on the Court’s case-law
November 2022

A and Others v. Iceland – 25133/20 and 31856/20

Judgment 15.11.2022 [Section III]

Article 8
Article 8-1
Respect for family life

Decision depriving parents of custody of their children due to inability to properly care for them and children’s wishes to remain in foster care, within State’s margin of appreciation: no violation

Facts – The first and second applicants are married and have two children together: a girl, X, the third applicant, and a boy, Y, the fourth applicant. A criminal investigation was instigated against the father (the first applicant) after allegations of sexual abuse made by the children came to the authorities’ attention. During the investigation, the municipal child protection committee (the Committee) ruled that both children be placed in foster care, where they have remained. The first applicant was subsequently indicted for sexual offences against the children. Committee concluded that the first and second applicants were not able to have custody of their children and successfully lodged an application before the district court to deprive them of custody. In the meantime, the first applicant was acquitted of all criminal charges.

The first and second applicants appealed to the Court of Appeal, which overturned the district court’s decision. The Committee appealed the Supreme Court, which overturned the Court of Appeal’s decision, ruling to deprive the first and second applicants of custody of both children. The Supreme Court did not consider it viable to quash its judgment and remit the case for a fresh examination, in the light of the time-sensitive nature of the case and the children’s interests.

Law – Article 8: The measures that had been taken to remove X and Y from the first and second applicants’ custody had constituted an interference with the first and second applicants’ right to respect for their family life and that of their children. That interference had been in accordance with the law and had pursued the legitimate aim of the protection of health and morals and the rights of others.

The Supreme Court had not based its decision to deprive the parents of custody on a finding that the allegations against the first applicant had been true, as the first and second applicants had submitted. On the contrary, it had recognised the final binding force of the first applicant’s acquittal but had noted that that acquittal alone could not have been determinative with regards to the outcome of the childcare proceedings. It had then carried out an assessment of the facts of the case and the available expert evidence, without any further reference to the criminal proceedings or any allegedly criminal behaviour on his part.

Making criminal convictions conditional upon a high standard of proof and interpreting doubt in this regard in favour of the defendant was both an integral part of the Convention and the European legal tradition. However, that same high standard of proof, in general, did not, and in some cases should not, apply outside the context of criminal proceedings. In the case of child protection, the task of childcare authorities was to prospectively evaluate risks to the children’s best interests, not elements of criminal guilt. In that assessment, authorities should not be required to prove criminal negligence or endangerment beyond reasonable doubt in order to justify taking measures to protect children from harmful situations. A conclusion to the contrary would severely undermine the authorities’ capability to discharge their positive obligation to protect children’s lives and welfare. In the present case, taking into account all the facts in order to determine the children’s best interests, had therefore been a reasonable decision by the domestic authorities which might otherwise have been considered remiss in their duties.

The Committee did not appear to have reconsidered its position regarding the application for deprivation of custody in the light of the first applicant’s acquittal. However, unlike the situation in Haddad v. Spain, the decision to deprive the first and second applicants of custody had not been based on the allegations of sexual abuse in respect of which the first applicant had been acquitted, but on a large number of reports, assessments and witness statements, many of which had been obtained after the conclusion of and independently of the criminal proceedings. In particular, considerable weight had been given to the court-appointed assessor’s report, which had been obtained after the conclusion of the criminal proceedings and had been based on interviews with the parents, the children, staff at the children’s school, the foster parents and the children’s psychologists; psychological assessments of the parents; and observations of the children during contact sessions with the second applicant and the foster parents. The findings of the report, which the first and second applicants had not sought to have overruled by way of a reassessment and which had been supported by other expert reports, had been that their parental abilities were lacking, that they were unable to care for the children in a manner that protected their sense of security and well-being, and that the children clearly wished to remain with their foster parents.

The Supreme Court had criticised the Court of Appeal for failing to hear the children in person again before rendering its judgment. However, under domestic civil procedure law, the Supreme Court, could not hear the children in person. That fact had been explicitly taken into account by the Supreme Court, which noted that despite this, the importance of resolving the issue without further delay, in the interests of the children, who at that point had been in a situation of uncertainty for a considerable amount of time, justified not quashing the Court of Appeal’s judgment, but rather overturning it on the merits. That conclusion had been reasonable and sufficiently reasoned, and within the member State’s margin of appreciation. Moreover, the fact that the children had not been heard in person by the highest court had been offset by new documents being adduced as evidence before the Supreme Court – documents which had been obtained after the rendering of the Court of Appeal’s judgment, including recent expert reports.

The present case involved a balancing exercise between competing interests in a very complex and delicate situation. In such situations, where it had been shown that domestic authorities had acted with sufficient diligence, had obtained and relied on relevant evidence and assessments from professionals, and had given the best interests of the children involved paramount importance, the Court would need strong reasons to substitute its own assessment for that of the authorities. The domestic authorities had been entitled to give weight to the siblings’ interests in not being separated from one another, and to have regard to the mother’s continued marriage to, and eventually apparent support of, the father. Further, prior to seeking deprivation of custody, the domestic authorities had made several attempts to take less restrictive measures. Although there had been certain deficiencies in the procedure before the Committee, the initial childcare measures and subsequent proceedings for deprivation of custody, taken as a whole, demonstrated sufficient diligence on the part of the authorities. The proceedings for deprivation of custody had been moreover accompanied by adequate procedural safeguards, where each parent had been represented by counsel and a spokesperson had been appointed for the children.

Unlike the situation in Strand Lobben and Others v. Norway [GC], the present case did not concern an irreversible measure of adoption of the children away from their biological parents. Deprivation of custody, although in principle a permanent measure, could be reviewed at the request of the parents or the children after twelve months. Thus, in the event of a change in circumstances, custody could be regranted to one of or both the parents if in the children’s best interests. The second applicant had enjoyed contact rights with the children during the proceedings, and despite the deprivation of custody, she continued to do so, as did the children’s grandmothers. As to the first applicant, the Supreme Court had found it clearly established that both children severely feared him, and that their health and development were likely to be at risk if they were in his care owing to his behaviour, which was likely to cause them serious harm within the meaning of section 29(1)(d) of the Child Protection Act. Therefore, the national authorities had been entitled to take the view that the first applicant should not enjoy contact rights with his children.

Lastly, the Court upheld the Government’s objection, which had been joined to the merits, as to the second applicant’s standing to complain on behalf of her children as a conflict of interest might clearly have arisen between them. Moreover, at domestic level, the spokesperson had spoken with the children in person and had given evidence before the domestic courts.

Conclusion: no violation (unanimously)

(See also Haddad v. Spain, 16572/17, 18 June 2019, Legal Summary; Strand Lobben and Others v. Norway [GC], 37283/13, 10 September 2019, Legal Summary; E.M. and Others v. Norway, 53471/17, 20 January 2022)

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