The alienation of troubled parents from their children has violated their family life

JUDGMENT

Hernehult v. Norway 10.3.2020  (no. 14652/16) and Pedersen and others v. Norway 10.3.2020 (no.  39710/15)

SUMMARY

Right to family life, incomplete communication, lack of effort to reunite minor children with their parents.

The applicants in both cases are parents of 3 children and 1 child respectively. Due to mental illness, both were deemed inappropriate for the upbringing of their children and, by irrevocable rulings, the domestic courts removed the parental responsibility of 2 of the 3 children in the first case and the only child in the second case. The children were given up for adoption, and the Courts set minimum hours of communication per year with biological parents, thereby eliminating the possibility of family reunification.

The Court recalls that family ties can only be severed in “very exceptional circumstances”. Consequently, in the case of measures restricting family life, it is a positive task for the authorities to take measures to facilitate family reunification as soon as possible.

The Hernehult Case

The ECtHR found that at the final stage of the adoption decision, the Supreme Court had carried out an in-depth examination of the situation at that time, taking into account the expert’s report but also allowing the applicant to present his views. However, the same was not the case in the two previous degrees of jurisdiction.

The Supreme Court itself found that the adoption decision had been taken too early in the case, communication meetings were scarce, in breach of the authorities’ positive duty to take measures to facilitate family reunification.

The ECtHR therefore unanimously found that the domestic authorities’ general interference with the applicant’s right to respect for his family life with his two children infringed Article 8 of the ECHR.

Pedersen case

In this case, too, the ECtHR found that no judicial action was taken in the course of the proceedings to find measures that could address the risk of alienation of parents by approving X’s adoption and placing only limited communication visits after adoption.

The ECtHR also found that the Supreme Court’s decision on adoption was not based on an assessment of  the applicants parental abilities, but on X’s attachment to the foster family and thus the importance of family reunification or the positive obligation of the State was not sufficiently emphasized in order for measures to be taken to promote family reunification as soon as possible. Violation of Article 8 of the Convention.

PROVISION

Article 8

PRINCIPAL FACTS

Both cases concerned child welfare measures.

The applicant in the first case, Dan Mikael Hernehult, is a Swedish national, born in 1961. His case
concerned the authorities’ decision to take two of his sons into care.

Mr Hernehult moved to Norway in 2013 with his wife, a Romanian national, and their three sons, A,
B and C, born in 2000, 2005 and 2007 respectively. The children were placed in emergency foster
homes the same year because of the child welfare services’ concerns over their parents’ ability to
care for them, and the fact that they were bringing them up in isolation, with an unusual focus on
illness.

In 2014 the County Social Welfare Board accepted the welfare services’ application to place the
children in care, concluding that there had been serious neglect. B and C were placed in foster care,
while A went to an institution as the foster carers had found his special needs too demanding.
Mr Hernehult and his wife brought the case before the courts, with the High Court ultimately
deciding the matter in 2015. Noting that A was very unhappy in the institution, it found that it would
be in his best interests to move him back to his parents, giving the mother and father extensive
assistance. As concerned B and C, it decided that they should remain in care because of their
attachment to their foster home. Contact rights were set at six six-hour sessions per year.

The applicants in the second case, M.R. and T. Pedersen, a married couple, and their child, X, are
Norwegian nationals who were born in 1969, 1962 and 2008, respectively. Ms Pedersen is originally
from the Philippines. Their case concerned the authorities’ decision to deprive them of their parental
responsibilities in respect of X and to authorise his adoption.

X was placed in an emergency foster home when he was a few months old because his parents were
mentally ill and incapable of looking after him.

After some time, including a period in which Ms Pedersen stayed with him at a parent-child
institution, the child welfare services applied to the County Social Welfare Board for a care order.
The Board allowed the application and X was placed in a foster home. It took the view that the
placement would be long-term and set contact rights at two two-hour visits per year.

Mr and Mrs Pedersen appealed and the case was then heard at three judicial instances, with the
Supreme Court ultimately consenting in 2015 to X’s adoption. The Supreme Court found that it
would be in X’s best interests to stay in the secure environment of his foster home, where he had
lived almost all his life. It also took into account his deep attachment to his fosters parents, as
compared to the lack of ties to his biological parents. It nevertheless considered it important that X
maintain his ethnic ties to the Philippines and upheld the contact rights set by the lower courts.

Relying on Article 8 (right to respect for private and family life) of the European Convention on
Human Rights, the applicants complained about the domestic authorities’ decisions concerning their
children. The applicant in the first case complained in particular about the decisions to take B and C
into care and the subsequent refusal to return them, while the applicants in the second case
complained about the decisions depriving them of their parental responsibility for their son, allowing
his adoption and restricting their subsequent contact.

THE DECISION OF THE COURT…

1. Hernehult case

For the purpose of the present analysis, the Court reiterates that regard to family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8 of the Convention. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible.

Moreover, family ties may only be severed in “very exceptional circumstances”

In the instant case, the Court finds that the procedures and the reasons advanced for the decision to keep B and C in foster care and grant the applicant the right to six contact sessions with them a year must be examined together, as it considers that the High Court’s ultimate reasons for its decision were intrinsically linked to how the child welfare case had proceeded until then.

The High Court appointed an expert to examine the case, who delivered a written report and gave testimony during the hearing. The Court is satisfied that the applicant was sufficiently involved in the decision-making process and fully able to present his case at that stage, and that the High Court carried out an in-depth examination of the situation at that time.

The Court is not convinced, however, that the same is true as regards the initial steps of the placement proceedings, for the reasons set out in the following. It notes that its examination is not directed against the emergency decision .

In addition, the Court notes that in their dealings with the family overall, the child welfare service had at least in part proceeded on the grounds that A did not suffer from EDS and his mother did suffer from Munchausen’s syndrome by proxy .

The Court adds that the decisions of the Board and the District Court on the parents’ right to have contact four times a year for one and a half hours each time did not aim to facilitate the children’s return to their parents. Moreover, the decision that the family could not speak Romanian together during the contact sessions would appear to have made these few sessions less likely to facilitate the children’s return.

The Court notes in particular that the Board stated that the placement was expected to be prolonged and that also the High Court seems to have proceeded on these grounds. It is the Court’s assessment that long-term foster care appears to have been assumed from rather early on in the case, whereas a conclusion that the placement must be considered to be long-term, since all subsequent measures, including the visiting regime, will flow as corollaries to this, should only be drawn after careful consideration and also taking account of the authorities’ positive duty to take measures to facilitate family reunification. Moreover, while, to a large extent, the High Court found that the care orders could not be overturned because of B’s and C’s attachment to the foster home – even though the care orders might not have been justified initially – it made a decision essentially designed to strengthen that attachment.

As to the procedures leading up to the High Court’s judgment, the Court bears in mind that the child welfare authorities and domestic courts were faced with difficult factual assessments, including in the initial phases of the case, and does not call into question that they sought to achieve what they considered would be a balanced and reasonable decision in the light of B’s and C’s best interests, both when the children were first taken into care and when the District Court upheld the care orders. The Court is also wary of judging these aspects of the case with the benefit of hindsight, as the Court must primarily base its decision on the facts of the case as they were subsequently established by the High Court.

In the light of the circumstances of the case as a whole, the Court is of the view that the cumulative effect of the above features of the domestic authorities’ dealing with the case must lead it to conclude that the authorities have not shown that they fulfilled their obligations under Article 8 of the Convention; the domestic authorities’ overall interference with the applicant’s right to respect for his family life with B and C did not remain within what was “necessary in a democratic society” under the second paragraph of Article 8 of the Convention.

Accordingly, there has been a violation of the applicant’s right to respect for his family life as enshrined in the first paragraph of Article 8.]

Just satisfaction: 25,000 euros (EUR) to Mr Hernehult for non-pecuniary damage

2.Pedersen case

Furthermore, the Court recalls that in instances where the respective interests of a child and those of the parents come into conflict, Article 8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. Moreover, family ties may only be severed in “very exceptional circumstances” .

The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. The ties between members of a family, and the prospect of their successful reunification will perforce be weakened if impediments are placed in the way their having easy and regular access to each other .

The Court notes that the proceedings complained of began in 2012, when the first and second applicants applied to have the care order lifted .In order to consider those proceedings correctly, the Court has to put them into their context, which inevitably means to some extent having regard to the related proceedings concerning public care and contact restrictions. In doing so, the Court observes that X’s initial placement in care was to a large part related to the first and second applicants’ issues with mental health at the time in question. Notwithstanding that circumstantial justification for the care order, the Board and the District Court both proceeded on the assumption that the placement would be long-term. When the Board issued the care order on 23 October 2009, it, referred to, inter alia, the likely long-term nature of the foster care and set the first and second applicants’ contact rights at only two visits yearly, each time for two hours. That decision was upheld by the District Court. In the meantime, only one visit was carried out.

The Court emphasises that to the extent that these decisions implied that the authorities had given up reunification of the child and the natural parents as the ultimate goal, the conclusion that placement must be considered to be long-term should only have been drawn after careful consideration and also taking account of the authorities’ positive duty to take measures to facilitate family reunion. However, in this case the decision to impose a very strict visiting regime cemented the situation at the very outset, making it highly probably that the child would become attached to the foster parents and alienated from the natural parents, thus precluding any realistic possibility of eventual reunification

Furthermore, the above decisions taken in 2009 and 2010 laid out the arrangements that were in force when the first and second applicants lodged their claim to have the care order lifted; as a result of those arrangements, when the domestic authorities were called upon to decide on the first and second applicants’ claim in the course of the proceedings complained of, they had scarce experience from which to draw conclusions in respect of their caring skills. That issue was not expressly raised by the District Court, which itself failed to include any assessment of the first and second applicants’ caring skills in the mandate given to the expert that it appointed . It was, however, aptly illustrated by the report by the expert appointed by the High Court: that expert expressly stated in her report that the first and second applicants had been allowed neither to fully demonstrate nor to develop their caring skills to any particular degree. At the time of the impugned proceedings, there was thus in the Court’s view already a risk that the family would not be reunited, even though there had been improvements in the first and second applicants’ situation, and that expert found nothing to indicate that they lacked caring skills . Nonetheless, instead of attempting to find measures that could counter that risk – and in a situation where the first and second applicants had effectively consented to uphold the status quo by not appealing against the High Court’s judgment in respect of the refusal to lift the care order – the domestic authorities, by way of the Supreme Court’s judgment, ultimately decided to increase it by authorising X’s adoption and setting only limited post-adoption contact visits. In those circumstances, the Court does not find it decisive that the Supreme Court’s judgment on adoption was not based on an assessment of the first and second applicants’ caring skills, but on X’s attachment to his foster home only.

The Court also notes that in the present case the adoption was “open” in the sense that contact visits were maintained even after the adoption In the light of the above, the Court considers that in the proceedings through which the adoption of X was ultimately authorised, insufficient importance was attached to the aim that a placement in care be temporary and the family be reunited, and that insufficient regard was paid to the positive duty to take measures to facilitate family reunification as soon as reasonably feasible. That being the case, and taking additional account of the very limited contact arrangements set by the Supreme Court, the Court does not find the “open” character of the adoption to be decisive.

The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the child X ; it further held that the
respondent State was to pay M.R. and T. Pedersen jointly EUR 35,000 for non-pecuniary damage and
EUR 9,500 for costs and expenses.