Shortcomings in decision-making process to remove a mother’s parental authority and allow adoption of her daughter.
In today’s Chamber judgment (1) in the case of M.L. v. Norway (application no. 64639/16) concerning childcare the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights
The case concerned the domestic authorities’ decisions to remove a mother’s parental authority and authorise her daughter’s adoption by her foster parents.
The Court found in particular that the reasons for the authorities’ actions reflected the fact that insufficient importance had been attached to ensuring that placement in care be temporary and that insufficient regard had been paid to the positive duty to take measures to preserve family bonds to the extent reasonably feasible.
The applicant, Ms M.L., is a Norwegian national who was born in 1975.
When the applicant’s daughter was born, in April 2011, the child welfare services arranged for Ms M.L. to stay at a family centre, given concerns about her mental health. The centre found that she had major difficulties looking after her baby and was uncooperative with staff; the child welfare services decided to place her daughter in care on an emergency basis when she was nine days old.
Those services then applied to the County Social Welfare Board requesting that the child be placed in a foster home. In September 2011 the Board heard the parties and eight witnesses, concluding that Ms M.L. was capable of looking after the child on a practical but not emotional level. The Board considered that the foster care would be long-term and granted her the right to contact with her daughter four times per year, for two hours each time.
Ms M.L. unsuccessfully challenged the decisions on emergency and foster care in court.
Ultimately in June 2015 the Board, comprised of a lawyer qualified to act as a professional judge, a psychologist and a layperson, decided to remove the mother’s parental authority and authorise adoption. The Board heard several witnesses over two days, and the mother was present and represented by counsel. It concluded that adoption would be in the child’s best interest.
The mother appealed to the courts and a hearing was held in December 2015. The District Court, sitting as a bench of a similar composition as the Board, carried out a fresh examination of the case over a meeting of several days, during which the applicant was given the opportunity to present her arguments again. The court essentially agreed with the Board, ruling that it was most likely that Ms M.L. would permanently be incapable of providing appropriate care for her daughter, given her poor cognitive functioning, and that it would be in the best interests of her daughter, who was sensitive and vulnerable and strongly attached to her foster parents, to have her care situation clarified.
In 2016 Ms M.L. was refused leave to appeal by the High Court, and the Supreme Court then dismissed her appeal against that decision.
Relying on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, the applicant complained about the domestic authorities’ decisions to remove her parental authority and authorise her daughter’s adoption by her foster parents. The application was lodged with the European Court of Human Rights on 27 October 2016.
Decision of the Court
The Court considered that the authorities’ decisions concerning the applicant’s parental responsibilities in respect of her daughter and, ultimately, her daughter’s adoption by her foster parents had interfered with the applicant’s right to respect of her family life, that they had been in accordance with the law and that they had pursued a legitimate aim. It had to examine, therefore, whether the measures had been necessary in a democratic society.
In regard to the County Social Welfare Board’s and the District Court’s respective decision-making processes, the Court considered that these had been comprehensive and that Ms M.L. had been afforded the requisite protection of her interests and had been fully able to present her case. The Court was also satisfied that the authorities had conducted an in-depth examination of the factors relevant to the case.
Turning to the question of whether the domestic authorities had provided relevant and sufficient reasons for the impugned measures, the Court noted that it had to place those decisions in context, having regard to the earlier proceedings and decisions in the light of the case as a whole. As the District Court’s judgment had been the final judgment on the merits, the Court centred its examination on that verdict.
In the Court’s view, the reasons advanced by the District Court to justify the adoption – namely the applicant’s poor cognitive functioning and poor caring skills, the child’s sensitivity and attachment to her foster parents compared to the limited bonds with her biological mother, and the adoptive parents’ openness to contact between the applicant and her daughter if and when her daughter had so wished – were relevant to the question of necessity.
As to whether the reasons provided by the District Court had also been sufficient to justify the impugned measures, the Court reiterated that it had previously refrained from attempting to untangle the opposing considerations inherent in questions concerning whether adoption or long-term foster care might be in the best interests of a child in a specific case, and was not inclined to take a different approach in this case. However, the Court stressed that adoption as a rule entailed the severance of family ties to a degree that according to the Court’s case-law was only allowed in very exceptional circumstances.
In the instant case, the Court noted, firstly, that it had no basis for calling into question the District Court’s findings that the applicant’s daughter had been vulnerable or that she had settled well into the foster home. The Court considered, however, that the District Court had provided no indications that those factors, while clearly relevant to the case, had amounted to anything exceptional that had justified severing all ties between the applicant and her daughter.
Furthermore, regarding the District Court’s statement that the attachment between the applicant and her daughter had been very limited, the Court observed that Ms M.L.’s daughter’s placement in care when only nine days old had denied them the opportunity to develop any real attachment. The Court furthermore noted that the applicant’s very restrictive contact rights in regard to her daughter had been decided on the assumption that the care order would be long-term and that there was no indication that the domestic authorities had taken any real steps towards reconsidering the contact regime while the child had been in foster care.
As to the District Court’s emphasis on the need to restrict the applicant’s procedural rights, the Court had reservations, as biological parents’ procedural rights – including their right to have access to proceedings in order to have a care order lifted or restrictions on contact with their child relaxed – formed an integral part of their right to respect for their family life guaranteed by Article 8.
In its assessment of the above, the Court bore in mind the fact that the adoption decision had been essentially grounded in an assessment of what would be in the best interests of the applicant’s daughter in the future. Within that context, the Court had no basis for doubting that the lack of any real ties between a child and his or her biological parent might often reduce the negative factual and emotional consequences of adoption, both for the child and the parent. However, in the light of the very limited contact rights that had been granted and the complete absence of any other attempts over the years of foster care to counter the risk that the biological family would end up permanently broken, the Court nonetheless did not consider in the instant case that the domestic authorities should have based the adoption decision on the absence of bonds between the parent and the child.
The Court referred to a number of judgments and decisions given by the Norwegian Supreme Court after the Court’s judgment in the case of Strand Lobben and Others (32783/13) and stated that it was mindful that its approach to cases such as this one could systemically differ from the approach followed by domestic childcare services and authorities (including the domestic courts), which had to decide what to do with a child (and his or her family) on the basis of the child’s and the family’s situation when the decision in question was taken and with an eye primarily on the future. It emphasised that this was a consequence of the distinctive perspectives attached to each respective role – with the Court assessing, within the scope of the application lodged with it, whether the respondent State had acted in accordance with its obligations under the Convention. The Court stated that it therefore also fully concurred with the emphasis placed by the Norwegian Supreme Court on the crucial importance, from the very outset, of the child welfare services, the County Social Welfare Board and, thereafter, the domestic courts, considering all the relevant requirements under Article 8 of the Convention, in order to avoid errors and shortcomings that could not readily be repaired at a later stage.
In conclusion, the Court considered that the proceedings through which the adoption of the applicant’s daughter had been authorised and the reasons advanced for the measures decided in those proceedings reflected the fact that (i) insufficient importance had been attached to the aim that placement in care be temporary and an affected family be reunited, and (ii) insufficient regard had been paid to the positive duty to take measures to preserve family bonds to the extent reasonably feasible.
There had thus been a violation of Article 8 of the Convention.
Just satisfaction (Article 41)
The Court held that Norway was to pay the applicant 25,000 euros (EUR) in respect of non-pecuniary damage and EUR 9,500 in respect of costs and expenses.
The judgment is available only in English.
(1)Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.