A Conflict between the Best Interests of the Child and the Right to Respect for Family Life? Non-Consensual Adoption in Denmark and Norway as an Example of the Difficulties in Balancing Different Considerations

Abstract

This article explores Danish and Norwegian regulations of adoption without parental consent as a social initiative considering judgements from ECtHR, primarily involving Norway. As the countries are quite similar, Norwegian and Danish legislation are compared. The comparative analysis shows that in non-consensual adoption cases, the understanding of the concept of the best interests of the child seems to differ between the ECtHR on the one hand and Denmark and Norway on the other hand. It is argued that the social welfare system in the Nordic countries is matched by a Nordic view of children and the Court's approach impedes the ongoing development of the child as an independent bearer of rights in Nordic law.

I. INTRODUCTION

Balancing the right to respect for family life and the child’s best interests often raises fundamental questions in cases regarding the protection of children. The topic of this article concerns non-consensual adoption as a child welfare initiative under Danish and Norwegian law. Unlike other social efforts, this measure is not intended to reunite the family. The legal consequence of an adoption is a complete family change, which means that legal ties to the biological family are severed, and the child legally becomes a full member of the adoptive family, including the right to inherit from the adoptive parents. This makes adoption without consent the most intrusive measure implemented by the Child Welfare System.

In recent decades, the use of non-consensual adoption has been a highly debated topic in Denmark and Norway. Governments in both countries have clearly signalled that they want more adoptions instead of long-term placements.¹ Both countries have implemented changes in their legislation on non-consensual adoption and Denmark is facing new more lenient rules in this area.² The rules, their management, and the underlying systems are very similar in the two countries. However, unlike Denmark, Norway has recently faced several judgements by the European Court of Human Rights (ECtHR). This has given rise to considerations of the decisive factors in the assessment of non-consensual adoption in a human rights perspective and differences in the understanding of the rights at stake. A crucial question is whether there is a special Nordic approach and understanding of respect for family life in the assessment of what is in the best interests of the child and in balancing the rights and interests of children and parents. It is only possible to get closer to an answer by diving into the legislation and practices of the two countries and try to understand why Norway meets opposition from the ECtHR and whether Denmark risks the same opposition in relation to current and future legislation, even though to a large extent legislators in both countries claim to have the child's best interests as a main consideration.

The purpose of this article is to explore the question of whether the development in non-consensual adoption in Norway and Denmark is on a collision course with human rights. The following clarification of the substantive rules focuses on analysing differences and similarities in the legislation and thereby creating an understanding of the considerations at stake and how they are balanced, when the authorities make decisions on non-consensual adoption. The results form the basis for the subsequent analysis as to whether the considerations and principles applied are in accordance with those provided in the ECtHR case assessments.

II. WHY COMPARE THE TWO COUNTRIES

Comparative law is the act of comparing the law of one country to that of another and thereby gaining insight into the regulation of both the foreign legal system and one’s own.³ Denmark and Norway are comparable as both countries are Scandinavian and are democratic welfare societies.⁴ Denmark has fully incorporated the European Convention on Human Rights (ECHR) at the level of law and ratified the Convention on the Rights of the Child (CRC) by the finding of normative compliance. Norway has fully incorporated both conventions into its Human Rights Act with precedence over other legislation.⁵ Denmark and Norway are both traditionally part of the civil law system. In both countries the preparatory works are used as an important interpretive tool, case law from national courts has a significant value as a legal source and there is a common understanding of principles as considerations or norms that have a particularly strong position in the assessment of legal issues.⁶ One of these principles is the best interests of the child, which is a primary consideration in both Danish and Norwegian child law.⁷ There is no single definition of what is in the best interests of the child. It depends on the child's individual characteristics and specific situation, as well as the type of case in question. It is a dynamic concept concerning issues that are continuously evolving and its assessment needs to be context specific.⁸

Denmark and Norway have comparable social structures and cultures. Both are highly developed democratic welfare societies. In both countries, there are well-established child protection systems, where the responsibility for providing support to vulnerable children and families lies with the state and in the first instance; the municipalities. The systems are organised differently, but the decisions are made with the involvement of various experts, including lawyers and child experts, with guarantees of due process, such as the authorities' responsibility to adequately illuminate the case. The rule of law is expressed in substantive and procedural rules based on fundamental rights and values, including respect for and protection of personal integrity, requirements of equal treatment and predictability, the principle of legality, and the principle of proportionality. Procedural legal certainty means that the parties of the case, including the children, must be able to defend their interests through effective involvement, and in relation to the children, the case processing must take place in a child-friendly manner. The decisions can be brought before the courts and legal assistance is awarded in the most intrusive cases, including cases of non-consensul adoption. In Norway, the child protection services at the municipal level are responsible for examination of cases and decisions on voluntary measures of assistance to the family. The services also bring cases to the County Board (12 in all) which is the decision-making authority for taking children into care, contact between children and parents, and non-consensual adoption. Such decisions may be brought before the courts by the parents for a full review. The judgment of the District Court may, however, only be appealed to the High Court with the latter’s consent and on certain conditions. That is the reason why quite a few of the cases against Norway had not gone further than the District Court at the national level. A decision from the High Court may be appealed to the Supreme Court on certain conditions, and the Supreme Court has taken an active role in the follow-up of the ECtHR judgments from Strand Lobben (2019) onwards. Denmark is very much alike. Voluntary and non-voluntary measures by the social services are initiated at the municipal level. Cases of out-of-home placement without consent and non-consensual adoption are some of the cases which must be brought before the municipality's Children and Youth Committee for decision. In cases where the custodian will not consent to a measure recommended by the social services, The Children and Youth Committee has to decide. There are 96 municipalities in Denmark and therefore a corresponding number of Committees. In cases of non-consensual adoption, the final decision must be made by the Danish National Social Appeals Board. The committees therefore only recommend a decision to the board. The board’s decision can be appealed to the City Court and their decision can be appealed to the High Court. A special permission from the Appeals Permission Board is necessary should the case be brought to The Supreme Court.

The substantive rules of non-consensual adoption are further explained later in this article, but the starting point for both Danish and Norwegian law is that the rules must ensure that children who live under conditions that may harm their health and development have a right to receive the necessary help from the state.⁹ This is in line with the obligation on States under Article 19 of the UN Convention on the Rights of the Child (CRC) to protect children from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’. The Committee on the Rights of the Child has underlined the importance of taking a child rights-based approach in this context:

A child rights-based approach to child caregiving and protection requires a paradigm shift towards respecting and promoting the human dignity and the physical and psychological integrity of children as rights-bearing individuals rather than perceiving them primarily as ‘victims’.¹⁰

Another argument for comparing Norway and Denmark is that in both countries the child-welfare system is based on principles of early intervention and prevention, which however must take place as far as possible in the family–home, and which must not be more intrusive than necessary. When alternative care is necessary in the light of the child’s needs, placement in a foster family is preferred over an institution.

In Denmark and Norway and in many other European countries, approximately 1 per cent of children are placed in out-of-home care.¹¹ In the period between 2011 and 2018, the number of non-consensual adoptions in Norway strongly increased yearly from 27 to 74 adoptions. Due to the restrictive case law from the ECtHR, the number decreased to 13 in 2020 and 11 in 2021.¹² In Denmark, non-consensual adoptions in 2020 reached a new high, with 24 adoptions.¹³

III. THE SUBSTANTIVE RULES ON NON-CONSENSUAL ADOPTION

1. The Danish regulation

A. The rules of 1972

Non-consensual adoption was first introduced into the Danish Adoption Act in 1972, but the provision was applied to an extremely limited extent. In 2003, the Ministry of Justice stated that within the last 10 years, permission had been granted in only four cases.¹⁴ Until 2009, an average of one non-consensual adoption per year had been carried out.¹⁵ The rules of 1972 meant that it was not directly stated in the wording or the preparatory works which conditions had to be met for a non-consensual adoption to be carried out. A practice developed so non-consensual adoption could only be carried out when the child was of a certain age, where there had been a lack of contact between the child and the biological parents for a certain number of years, typically 6–8 years and the lack of contact with the biological parents was due to the parents' lack of effort.¹⁶ The provisions could, according to their wording, cover situations other than those mentioned, ie situations where a child had been placed in foster care for a long time and where the biological parents had failed to maintain reasonable contact with the child, but case law had developed extremely restrictively and required that the above conditions were met.¹⁷

B. Development since 2009

In 2009, an amendment to the Danish Adoption Act was passed.¹⁸ The aim of the amendment was to extend the access to non-consensual adoption in cases where the alternative for the child was an out-of-home placement without consent throughout their upbringing. The desire to secure greater stability in the life of the child placed in care was the focus of the amendment.¹⁹ First, adoption without consent could now be granted in cases where previously given consent had been revoked but where the best interests of the child justified adoption. Secondly, non-consensual adoption could be granted in cases where the parents would not consent, but where essential considerations regarding the best interests of the child could justify adoption. In cases of children under the age of one, the child could be adopted without consent if it was proven that the parents would be permanently unable to care for the child or play a positive role for the child in relation to contact. Non-consensual adoption of a child who had been placed outside the home for at least 3 years was now also made possible if it could be proven that the parents would be permanently unable to take care of the child.²⁰

In 2015, the Act was amended again. The new provisions had not been applied more than the previous ones and the number of adoptions without consent on average had only increased from approximately one to two adoptions per year.²¹ It was also stated that the limited use of the provisions was probably due to the difficulties of assessing the parents’ abilities to care for the child. Furthermore, it was difficult to assess whether the parents were able to play a positive role regarding contact. Part of the problem was the requirement that the parents’ lack of abilities had to be proven.²²

C. The conditions for non-consensual adoption today

With the 2015 amendment, which is still in force, the conditions were eased. Today, adoption can be granted without consent from the parents in the following situations:

First, it may be granted in cases where the conditions for out-of-home placement are fulfilled and it is made probable that the parents will be permanently unable to care for the child and that adoption for the sake of continuity and stability in the child’s upbringing will be the best solution for the child.²³ In this regard, the condition for placement is that there is an obvious risk that the health or development of the child or young person will suffer serious harm either as a result of inadequate care or treatment of the child or as a result of abuse the child has been subjected to.²⁴ In these cases, the child may be adopted by anyone who is eligible, including the foster parents.²⁵

Secondly, adoption can be granted to the foster parents if the child’s attachment to the foster family has assumed such a character that it will be harmful for the child to break this attachment.²⁶ The latter assessment should consider the continuity and stability of the child’s upbringing and the child’s relationship with his or her parents. Adoption by foster parents may, besides the situations mentioned above, also be granted in cases where the child is placed because of an obvious concern that the child’s health or development will suffer serious harm due to the child’s substance abuse problems, criminal behaviour, other severe social difficulties, as well as behavioural or adjustment problems in the child. In principle, permission for adoption by foster parents may be granted where the reason for placement in foster care is not the lack of abilities of the parents in itself, but the challenges in relation to the child’s behaviour.

Finally, if parental consent to adoption is revoked, a permission for adoption may be granted if the revocation, with special regard to the best interests of the child, is not reasonably justified. Even if the parents do not want to give consent in the first place, permission for adoption may also be granted in special cases if significant considerations of what is in the best interests of the child are called for.²⁷ This provision applies in special cases where the situation is not covered by the above-mentioned provisions. This can be described as a ‘omnibus’ provision that does not seem to have had independent significance in recent Danish practice but is only relied on in the context of the other provisions.²⁸

2. The Norwegian Legislation

A. Development

In Norway, the Supreme Court has played a central role in developing the law on adoption from alternative care. Without explicit basis in legislation, the adoption of a child by their foster parents was accepted by the Supreme Court back in 1982.²⁹ In a case from 1990, where the Supreme Court declined adoption, it actually anticipated the later concerns of the ECtHR by almost 30 years. The Court rejected the child welfare authorities’ practice of placing newly born or very young children for adoption at the same time as the child was taken into alternative care. Reference was made to the goal of reunification, based on the premise of the Child Welfare Act that children should grow up with their biological parents as far as possible, or at least maintain a relationship to them.³⁰

In line with that development, the 1992 Child Welfare Act opened the possibility for adoption on certain conditions (see below), though not at birth. Whereas the legal requirements for adoption have been more or less unchanged since 1992, except regarding contact after adoption, practice has varied.

In Johansen v. Norway, 1996, the ECtHR found Norway to be in violation of Article 8 in an adoption case. In 1991, at the age of 5 months, the child was taken into care and all contact was stopped, although the mother had followed the contact scheme during the child’s temporary placement. At the same time, the mother was deprived of her parental responsibility so that the child could be adopted. After the ECtHR judgment of 1996, the Norwegian authorities took greater care to ensure that adoption was justified and the number of adoptions decreased.³¹ Not least, two Supreme Court judgments in 1997 and 2001 declined adoption based on the child’s need to maintain contact with its biological parents, although the contact stipulated was very limited.³²

Later, in a 2007 case, the Supreme Court accepted adoption of a child although the court considered it was in the child’s best interests to have continued contact with his biological parents. The Court found it likely that contact would in fact take place as the foster parents had already given the biological family extended access to the child. The case was brought to the ECtHR who accepted the result and this line of thinking.³³

In the first decade after 2000, child welfare experts expressed a growing concern that adoption was an under used measure in Norway and in 2009 the Government responded by claiming that adoption should be more widely used, without a need to amend the Act.³⁴

A major change in the legal situation occurred when, in 2010, the Act made it possible to make a formal decision on contact after adoption. The Supreme Court had asked for this possibility in the two cases where adoption was declined and there had been a long public debate.

B. The legal requirements for non-consensual adoption in Norway

Under the 1992 Child Welfare Act, a basic requirement for adoption is that the placement in alternative care will probably last throughout the child’s childhood, ie that the child is unlikely to be returned to its biological parents.³⁵ The reason may be one of two: either the biological parents are permanently unable to provide the child with proper care or the child has obtained such an attachment to its foster parents that moving may lead to serious problems. In both cases, the Act requires that this is a lasting situation. Furthermore, the Act requires that the potential adoptive parents have been the child’s foster parents and it has been demonstrated that they are suited to take care of the child as their own. Therefore, within the Norwegian system and unlike the Danish, a child cannot be adopted by anyone else other than their foster parents. For adoption to become possible, they need to have been the child’s foster parents for some time. The requirement implies that babies may not be placed for adoption immediately after birth, nor may an adoption decision be made at the same time as the care order. As a final and over-arching requirement, the adoption must be clearly in the child’s best interests.

3. The Fundamental Considerations Underlying the Substantive Rules

In Denmark, the primary intention with the rules on non-consensual adoption is to ensure children in out-of-home placement the opportunity for continuity and stability during their upbringing.³⁶ Especially in cases where there is a presumption that the placement will be permanent because of the parents’ lack of ability to care for the child, it is important to ensure a stable upbringing with consistent and lasting caregivers.³⁷ This stability, continuity, and securing of lasting caregivers can be achieved through adoption and in the preparatory works of the Danish legislation, it is stated that the rules support that the children will get the best possible conditions for their upbringing and development.³⁸ The Danish rules on non-consensual adoption are also based on foreign experiences that show adopted children are doing better than children in out-of-home placement. This includes better physical development, better performance in various skill tests, and having fewer behavioural and mental problems than children placed outside the home.³⁹ The child's health and development, right to care, continuity and stability are all considerations that are pervasive in Danish social law, and they are all considerations that may form the legal basis of interference with the right to respect for family life. The considerations are therefore crucial elements in the assessment of the best interests of the child.

In Norway, the 1992 Act aimed at balancing the conflicting considerations in the adoption issue. The considerations were, on the one hand, the drastic nature of adoption as a definite measure entailing that all legal ties between parents and children are severed and the benefits for a child of retaining contact with its biological parents. On the other hand, there were the children’s need for stable care and the crucial importance of growing up with the least possible uncertainty regarding their future.⁴⁰ Consequently, adoption under the Act is possible, but only if there are no prospects of reunification with biological parents and provided it is clearly in the best interests of the child.

The influence of the ECtHR in the Johansen case described above led to a restrictive practice in Norway. In 2009 when the Government recommended that adoption be more widely used, the arguments were much the same as we have seen from Denmark. According to studies from other countries, children who are adopted from long-term placements do far better than those who stay as foster children throughout their childhood. References were made to the CRC art. 20 acknowledging that in some instances adoption is necessary to protect the child’s interests.⁴¹ However, the recent judgments from the ECtHR give reason to consider whether the Nordic understanding of the child's best interests is in accordance with the considerations of the ECtHR.

IV. THE BEST INTERESTS OF THE CHILD

1. Two Aspects of the Child’s Best Interests

In recent decades, especially because of the CRC, child law in the Nordics has seen a development in how children are regarded in a legal context. The distinction between the child on the one hand as a subject of rights and on the other hand an object of care has been used to describe how children are no longer seen only as vulnerable individuals in need of protection, but also as actors with rights of their own.⁴² In non-consensual adoption cases, both elements are crucial. The balance between protection and autonomy is an essential element in children's rights and manifestly depends on the nature of the case and the child in question. With both the child's own perspective and the more objective holistic perspective on the child’s situation as integrated elements, the principle of the child’s best interests aims to achieve the balance between autonomy and protection. In the following section, the best interests of the child are examined in relation to the principle of reunification, which is part of the right to respect for family life. The purpose of this is to compare the Nordic perspective on the best interests of the child with case law from the ECtHR in Section V.

2. The Best Interests of the Child and the Reunification Goal

The preparatory works of the Danish legislation on non-consensual adoption from 2015 stated that the rules could be applied in situations where eg the parents have substance abuse problems of such a massive nature that it deprives them of parenting ability and the ability to maintain a real parent/child relationship and where there is no evidence to assume that they will recover from the abuse and fulfil the child's need for continuity and stability.⁴³ Nevertheless, this assessment must include the extent to which the authorities have worked to remedy the parents' problems, including making it possible to have stable contact with the child.⁴⁴ However, the parents’ ability to have contact with the child, possibly with professional support does not preclude adoption if the parents will not be able to take care of the child in the long term. According to the preparatory works, the child's need for permanent caregivers and the relationship between the child and the foster parents are paramount considerations and may become the decisive factor in decisions where it is the foster parents that adopt the child.⁴⁵

The preparatory works of the Danish 2015 amendment stated that the proposed rules would continue to require that all decisions be made based on what is best for the child.⁴⁶ With regard to the aforementioned, it can be argued that the principle of the best interests of the child requires that the child’s best interests, which include the need for stability, continuity, care, health, and development, are given greater importance than consideration for the biological parents' right to reunification.⁴⁷

A similar idea underlies the Norwegian Act and in particular, the Government’s encouragement (2009) to use the possibility of adoption in more cases than previously. According to the preparatory works, although adoption is an intrusive measure where all legal ties between child and parents are severed, it is highly important for a child to grow up in conditions with the least possible uncertainty regarding the future. It was also emphasised that research shows that for some children, adoption will provide a more secure and predictable framework for their childhood than long-lasting foster home placements.⁴⁸ The Supreme Court supports the idea that the child’s interests may be decisive but seems to place a somewhat greater importance on the interests of the parents. As stated in the unanimous judgment that was later brought before the ECtHR in the case of Pedersen v. Norway:

A non-consensual adoption strongly affects the biological parents. The emotional pain of having your child adopted is usually profound. The family ties that are severed by non-consensual adoption are protected by Article 8 of the ECHR and Article 102 of the Constitution. … The interests of the parents must, on the other hand, yield where decisive circumstances in respect of the child calls for adoption, cf. the Constitution Article 104 second paragraph and the Convention on the Rights of the Child Article 3 no. 1.⁴⁹

An underlying premise of both Danish and Norwegian legislation is the belief that the child can have a safe and stable upbringing with others rather than the biological parents. At the end of the day, the decisive factor is who can give the child stability and security regardless of biological ties and not the idea that the door to reunification with the child’s biological parents should always be kept open even if there is only a small chance that the parents will acquire the ability to parent in the future. However, balancing the interests of the child and those of the parents is interesting to investigate further, especially in relation to the case of Strand Lobben and others v. Norway,⁵⁰ which gives reason to consider whether the ECtHR has the same approach to the child's best interests as is seen in the Nordic countries.

V. STRIKING A FAIR BALANCE BETWEEN INTERESTS ACCORDING TO THE ECTHR

1. The CRC and the ECtHR Guidelines

Following Article 3, para. 1 of the CRC that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’⁵¹ In its General Comment No. 14, the UN Committee on the Rights of the Child notes that the following elements should be considered when assessing the child's best interests: The child's views, the child's identity, preservation of the family environment and maintaining relations, care, protection and safety of the child, situation of vulnerability, the child's right to health and the child's right to education.⁵² In the General Comment, it is also stated that ‘decisions should assess continuity and stability of the child's present and future situation.’⁵³ The listed elements are all recognisable considerations from the Danish and Norwegian legislation and as far as the interpretation of the best interests of the child is concerned, Danish and Norwegian law is in accordance with the Committee’s understanding.

The ECtHR applies the CRC and often refers to it as a legal benchmark for the implementation of children’s rights. Over the years, there has been a development in the court's approach to children and their rights. This development according to Fenton-Glynn can be seen as three staged⁵⁴; the first focusing on parental rights,⁵⁵ the second seeing the situation as competing interests between the child and the parents⁵⁶ and the third recognising the child’s right as a paramount consideration.⁵⁷ At this third stage, the Court underlines the weight of the best interests of the child. In the adoption case R and H v. the United Kingdom, the Court stated that ‘the interests of the biological parents must inevitably give way to that of the child’,⁵⁸ and in the case Y.C. v. The United Kingdom, also an adoption case, it is even more clear, as it in pr. 134 says that ‘in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount.’⁵⁹ In other words, the best interests of the child should be the leading criterion – the trump card.

There is, however, reason to ask whether the Strand Lobben case represents a change of direction in the Court’s practice.⁶⁰ The ECtHR has repeatedly stated, and still does, that in cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations.⁶¹ At the same time, family reunification is emphasised as a main goal for children in alternative care. As stated in the Grand Chamber judgment in Strand Lobben v. Norway (2019):

[i]t should be noted that regard for 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. 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.⁶²

Yet, the Court acknowledges that the parents’ interest in reunification may conflict with the child’s interest in staying with its foster parents, and in Strand Lobben the following statement from previous cases was repeated:

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.⁶³

Thus, while consideration for the best interests of the child must come before all other considerations, at the same time a fair balance should be struck between the interests of the child and those of the parents. It is challenging to balance reunification of the family as a key aim with ensuring the child has a safe environment, where stability and continuity contribute to the child's health, development, and well-being. The purpose will be to ensure the child's right to stability and security in the foster family, while the authorities should also try to retain or create a bond between the child and the original family, so that reunification can take place as soon as possible. It follows from ECtHR case law that everything must be done to preserve personal relations and, if and when appropriate, to ‘rebuild’ the family.⁶⁴ The Court has stated that a guiding principle is that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child.⁶⁵

In relation to adoption, in particular, the Court has emphasised that such a far-reaching measure that severs family ties should only be applied in exceptional circumstances and could only be justified if it is ‘motivated by an overriding requirement pertaining to the child’s best interests’.⁶⁶ As recognised by the Court, it is clearly in the child's interest to ensure their development in a sound environment and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development.⁶⁷ The Court still finds it crucial that no real prospects for rehabilitation or family reunification exist and that it is instead in the child’s best interests that they are placed permanently in a new family.⁶⁸ Finding the balance between the reunification of the family and the best interests of the child is a complex issue and in StrandLobben and others v. Norway, the Court noted that the authorities had not succeeded in performing this task. The following was stated:

The Court is fully aware of the primordial interest of the child in the decision-making process. However, the process leading to the withdrawal of parental responsibilities and consent to adoption shows that the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and his biological family (see paragraphs 207 and 208 above) but focused on the child's interests instead of trying to combine both sets of interests, and moreover did not seriously contemplate any possibility of the child’s reunification with his biological family.⁶⁹

The Court criticised that the authorities had not sufficiently considered the potential significance of the child’s mother making substantial changes in her life while the child was in alternative care, including that she had married and had a second child. The case had not been properly examined with these changes in mind. In that respect, the Court criticised that the reports, which the assessment of the child's best interests were based on, were 2 years old. Furthermore, the adoption decision had been based on very limited contact between the mother and the child.⁷⁰ Thus, the contact sessions had provided limited evidence regarding the mother’s caring skills. The Court also asked for more detailed information about the special care needs of the child that defined his vulnerability. The brief description made by the experts was insufficient.⁷¹ In conclusion, the Court stated:

The Court does not consider that the decision-making process leading to the impugned decision of 22 February, 2012, was conducted to ensure that all views and interests of the applicants were duly considered. It is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake … In light of the above factors, the Court concludes that there has been a violation of Article 8 of the Convention in respect of both applicants [the mother and the child].⁷²

To summarise, a majority of seven judges among the 13 of the ECtHR found Norway to be in violation of Article 8, and they made their finding on the procedural grounds of insufficient presentation of the balancing of interests and limited evidence. However, there is an underlying criticism of the restrictive contact arrangements and possibly, of too much weight being placed on the child’s interests. This could be seen as a distancing from the previous understanding of the best interests of the child principle as a paramount consideration. The concurring opinion by Judge Ranzoni and five other judges, who agreed with the majority that Norway was in violation, openly disagreed with the majority’s procedural approach. Instead, they went straight to the substantive issue that the goal of reunification had been left at an early stage, leading to very limited contact from the time when the child was taken into public care. This concurring opinion even stated that when the City Court was to decide on adoption, after the child had lived 3 years and 4 months in the foster home, it was faced with a kind of fait-accompli.⁷³

2. Criticism of the Inconsistencies in the General Principles of the ECtHR

In the Strand Lobben case, there is a joint dissenting opinion on the merits of the case by judges Kjølbro, Poláčková, Koskelo, and Nordén. They state, inter alia ‘the general principles as set out by the Court are riddled not only with some inevitable ambiguities but also with some undeniable tensions and outright contradictions, “internally” as well as in relation to the relevant specialised legal instruments, particularly the International Convention on the Rights of the Child (CRC).’⁷⁴ As indicated above, the point made is that these tensions and contradictions concern the question of how to reconcile the ‘sanctity’ of the biological family with the best interests of the child.⁷⁵ These judges state that the majority's emphasis on reunification as the ultimate aim and guiding principle to be followed gives the impression that reunification with the biological parents might override the best interests of the child. They argue that under the CRC and in many countries, the approach taken today is that the best interests of the child is a primary or paramount consideration and that circumstances may require that the best interests of the child be given more weight than the aim of reunification.⁷⁶ It can be argued that it may be necessary to decide which consideration weighs heaviest.⁷⁷ In relation to the impact of time, the dissenting opinion refers to the Court’s recognition that the best interests of the child may ultimately take precedence over reunification when, after a considerable period, removing the child from its de facto family will not be in the best interests of the child.⁷⁸

The interesting question is how the interests at stake are assessed or given weight by the Court. Furthermore, it should be considered whether the development in relation to the concept of family today, especially in the Nordic countries, challenges the balancing of interests by the Court. Fenton-Glynn has raised concern about the ECtHR’s criticism of a state (Norway) for focusing too much on the interests of the child and characterised it as an ‘astounding position, turning the clock back on the position of children before the Court’.⁷⁹

VI. CONTACT BETWEEN PARENTS AND CHILD IN OUT-OF-HOME PLACEMENT

In its critique of Norway, the ECtHR attaches crucial importance to the fact that the parents and the child had very modest contact while the child was in public care, prior to the adoption. Therefore, it is relevant to investigate whether the practices in Norway and Denmark differ regarding contact during the placement. This can contribute to an understanding of how the ECtHR strikes a fair balance between the interests protected by Article 8 in adoption cases.

1. Denmark and Norway

The Danish Social Services Act states that while the child is in out-of-home placement the child has a right to request contact with its parents and network, including siblings, grandparents, other family members, friends, etc. The wording of the provision implies that it is the child who has the right to contact and not the parents or others who would like to see or talk to the child. This also means that the child can reject contact. So far, practice has rarely met the child's desire not to see the parents, but new legislation is pending and the expectation is that the child's point of view will be more heavily weighted in future cases. It is a concrete decision from case to case and it all depends on what is in the best interests of the child. If a decision is to be made on contact being less than once a month, such a decision is equated with a disconnection of contact and must be made by the Children and Youth Committee. This means that special procedural rules apply, including ie that the parents and the child are entitled to free legal assistance.

Under the Norwegian Act, parents and children have a mutual right to contact while the child is in alternative care. When deciding to place a child in public care, the decision-making body (the County Board) at the same time must stipulate a minimum amount of contact, in line with the child’s best interests.⁸⁰ The child welfare authorities may allow more contact if they find it adequate. Since the end of the 1990s, based on a Supreme Court judgment with reference to the preparatory works, cases were distinguished according to whether the placement was presumed to be short-term or long-term.⁸¹ If the placement was considered short-term, the aim was to retain as much contact as possible between the child and its parents in order to facilitate a return. If, on the other hand, the child was likely to remain in care for a long time and possibly throughout its childhood, the aim was only to maintain the child’s knowledge of its parents with a view to possibly re-establishing their relation at a later stage. Contact could then be sparse, three to six times a year for a few hours, as it should not prevent the child from settling down in the foster home and establishing secure and good relations with its foster parents.⁸² In practice, the majority of placements were considered long-term with limited contact.

Thus, the amount of contact has been a major difference between Norwegian practice, up until the recent ECtHR decisions, and Danish practice, where contact is generally much more frequent.

2. The ECtHR’s Criticism of Norway

The distinction in Norwegian practice between short-term and long-term placement and the very limited contact in long-term placements, have been at the core of the criticism when in recent years the ECtHR has found Norway to be in violation of Article 8 by giving up the reunification goal too soon. In K.O. and V.M. the ECtHR stated:

It would appear to the Court that, instead of carrying out serious contemplation of the possibility of reunification of the family (see, in particular, Strand Lobben and Others, cited above, § 220), the Board and the City Court implicitly gave up reunification as the ultimate goal at a very early stage, without demonstrating why the ultimate aim of reunification was no longer compatible with A’s best interests.⁸³

As mentioned, giving up that goal meant that there would only be minimal contact between children and parents, in this case, 1–2 h, four to six times a year. In K.O. and V.M. the Court found a direct violation in respect of the restrictions on contact,⁸⁴ not only on procedural grounds like the majority in Strand Lobben. The Court stated that the contact arrangement needs to effectively support the goal of reunification until this goal is no longer compatible with the best interests of the child. The Court emphasised that family reunification normally is not sufficiently supported if there are intervals of weeks, or even months, between each contact session. The authorities are obliged to facilitate contact ‘to the extent possible without exposing [the child] to undue hardship’.⁸⁵

These viewpoints were followed up in Pedersen and others v. Norway, concerning non-consensual adoption. Here, the restrictions on contact prior to the adoption were the reason why the Court would not accept the decision to let the foster parents adopt the child. The authorities had a positive duty to take measures to facilitate family reunion, and the Court stated:

However, in this case the decision to impose a very strict visiting regime cemented the situation at the very outset, making it highly probably [sic] that the child would become attached to the foster parents and alienated from the natural parents, thus precluding any realistic possibility of eventual reunification. Indeed, this is precisely what happened in the present case.⁸⁶

Thus, the connection between contact and adoption is evident. A strict contact arrangement may ‘cement the situation’ of the child living in the foster home and make reunification impossible. Eventually, adoption by the foster parents may appear to be a natural consequence. In this case, the Board had only stipulated 2 yearly visits, each of 2 h.⁸⁷ Instead of trying to find measures that could facilitate reunification, the authorities went a step further and authorised adoption.⁸⁸ The ECtHR could not accept adoption in this situation, repeating its position in Strand Lobben:

[W]here the authorities are responsible for a situation of family breakdown because they have failed in their obligation to take measures to facilitate family reunification, they may not base a decision to authorise adoption on the grounds of the absence of bonds between the parents and the child.⁸⁹

The view is that the decision in the case must not be ‘short-circuited’ as a result of the authorities not establishing a real relationship that can build ties between the child and the biological family. This is also reflected in recent court rulings where the Court finds that Article 8 is violated by Norway.⁹⁰

3. Norway’s Follow-Up

In March 2020, following the Strand Lobben Grand Chamber judgment and subsequent chamber judgments against Norway, the Norwegian Supreme Court tried three child protection cases in the Grand Chamber.⁹¹ Referring to the guidelines from the ECtHR, the Supreme Court made it clear that a placement of a child in care may not be regarded as long-term from the outset with consequences for the stipulation of contact. The Court confirmed that under Norwegian law, as under Article 8 ECHR, any care order is to be regarded as temporary and contact should facilitate the goal of reunification.⁹² However, contact should not expose the child to ‘undue hardship’ see K.O. and V.M.⁹³ This term as the only limit has been questioned as allowing (or even obligating) more contact than would be in the child’s best interests⁹⁴ and the Supreme Court in a later judgment modified it somewhat to say that the amount of contact should not be close to that limit.⁹⁵

The Supreme Court also followed up the ECtHR judgments by clarifying that there is no standard amount of contact; it must be decided on an individual basis. There should be as much contact as possible without disregarding the best interests of the child.⁹⁶ Thus, three to six times per year is clearly unacceptable as a rule.

In practice, a recent report scrutinising decisions from the county boards and the courts of appeal after decision from the ECtHR shows that the signals from the Supreme Court based on the ECtHR decisions have been followed up in a loyal way in Norway. The goal of reunification is not given up without thorough reasoning and quite a lot more contact is stipulated. The decisions on contact are based on individual considerations and not on a fixed standard, although the court of appeal judgments most commonly arrive at contact 8–12 times per year.⁹⁷ The report questions whether in some instances children’s rights are sufficiently considered, particularly in decisions that prescribe a lot of contact or where reunification seems unlikely but contact is still stipulated with reunification in mind.⁹⁸

After the adjustments in recent years, Norwegian practice is becoming similar to Danish practice. Regarding contact, one may perhaps argue that Denmark is more in line with the views of the ECtHR. On the other hand, Denmark is also, with a pending proposal for future legislation, trying to protect the interests of the child by giving children the opportunity to refuse contact. However, it should be noted that according to recent Danish legislation, it is possible to move the child to the future adoptive family at an early stage in the case proceedings, ie before the final decision is made, in cases where the biological parents have brought the case before the courts. This means that contact with the biological parents is further limited in practice. The reason is case proceedings are often prolonged in these situations – approximately 8 months and as the courts rarely oppose the recommendation for adoption, consideration for the child has formed the basis for the possibility of moving the child early in the proceedings.⁹⁹

VII. WHAT ARE THE DEVELOPMENT TRENDS?

1. Denmark: More Adoptions

In January 2021, the Danish Government presented a total of 43 initiatives, with the overall aim to ensure a safe home and more individual rights for vulnerable children.¹⁰⁰ Regarding non-consensual adoption the aim is like the changes in the Danish Adoption Act in 2009 and 2015; more non-consensual adoptions. In the proposal of initiatives, the Government repeats known arguments; a stable upbringing in a safe environment, neglected children must have a home and a family, and adopted children perform better on all parameters than children placed outside the home.

The initiatives on adoption mainly concern the issue of making it easier for foster parents to adopt but consist of a variety of proposals. It is emphasised that more non-consensual adoptions should take place in connection with the birth of the child. This goal is to be implemented by ensuring that adoption can be prepared during pregnancy and initiated from birth. The Government proposal of making it possible to decide on adoption ‘before the child is born’ is new and appears excessively intrusive, even if it is targeted at the protection of the child and early intervention by placement in the adoptive family immediately at birth. Furthermore, it is proposed that the municipality should be obliged to always consider adoption when a child has been placed outside the home for three consecutive years. The idea is that children should have the right to be adopted by their foster parents when a sufficiently close relationship has developed and both the child and the foster parents want this.¹⁰¹ In May 2021, the Government entered into a broad political agreement on these issues and it is expected that new regulation will be presented to Parliament in the spring of 2022.¹⁰²

Considering the previously mentioned judgments from the ECtHR, it should be examined whether the Danish agenda and desire to carry out more adoptions from an early age risk conflicting with the practice of the ECtHR in relation to reunification and the right to respect for family life.¹⁰³ According to the Court, adoption is a measure of last resort and only to be used in exceptional circumstances. The trend in Denmark seems to be that the best interests of the child trump the parents’ right to respect for family life, including the principle of reunification. This view was most recently expressed in the case of Abdi Ibrahim v. Norway (2021), where Denmark intervened in the written procedure arguing that ‘the Court should—in line with the principle of subsidiarity—not substitute its own substantive balancing of interests for that of the national authorities but rather review the national authorities’ decision-making process in such cases.’ Moreover, the Danish Government argued that ‘the Court should confirm the best interests of the child as the primary consideration in cases relating to child welfare, such as adoption cases’¹⁰⁴ In the Danish Government’s view, ‘the Chamber had conducted a substantive scrutiny of the national decisions and in its assessment, indicated a move towards attaching increased weight to the interests of the parents and consequently, had decreased the weight that was attached to the best interests of the child.’¹⁰⁵ This may give cause for concern as to whether Denmark – like Norway – will be judged for violating the right to respect for family life in future cases as the Danish development seems to imply that the municipalities should adopt the earlier Norwegian practice of long-term/short-term placement assessment at an early stage of the case proceedings. This practice led to the ECtHR criticising Norway's handling of the contact issues and has since been abandoned by Norway.

2. Norway: Adoption in Three Situations, Even Where Domestic Authorities Have Failed

Strikingly, the law on non-consensual adoption in Norway is stricter than the present law in Denmark. Thirty years ago, the Norwegian Supreme Court, soon followed by the legislator, did away with the possibility to put children up for non-consensual adoption soon after birth. As a starting point, a care order is to be considered temporary, like under the ECHR, and the authorities have a duty to follow up the biological parents in addition to facilitating contact.¹⁰⁶

Based on the ECtHR requirement of exceptional circumstances as part of the proportionality assessment under Article 8 (2), the Norwegian Supreme Court has expressed the following as the overarching norm regarding adoption: ‘The reasons for replacing a long-term foster placement with adoption must be so strong that they justify a complete severance of family ties.’¹⁰⁷ According to the ECtHR, adoption may not be based on the child’s lack of emotional ties to its parents if this is due to the authorities not doing enough to reunite the family.¹⁰⁸ Still, even if this is the case, the Supreme Court has interpreted the ECtHR’s judgments to allow for adoption in three situations: One is where the parents are particularly unfit to take care of the child, and this will be a lasting situation. Another situation is where contact is harmful to the child, as parents are not entitled to exercise their rights in a way that would ‘harm the child's health and development’. As a third possibility, at some point in time, the child’s need for stability may weigh so heavily that the parents’ interests must yield.¹⁰⁹

This may be seen as an attempt by the Supreme Court to reconcile the practice of the ECtHR with the rights and needs of the child with regard to adoption. The National Court must choose the solution which is, at the time of the decision, clearly in the best interests of the child. If previous shortcomings of the authorities were to block adoption totally, this would run counter to the best interests of the child. The child should not suffer from the mistakes of the authorities. In M.L. v. Norway (2020) the ECtHR seems to accept this point of view, or at least that the national courts have a somewhat different task than the Court. It recognises that domestic authorities must base their decision on the situation at present and with an eye mainly to the future, whereas the Court considers the case in retrospect.¹¹⁰ Thus, it seems that even in cases where adoption would in principle be unacceptable because of previous errors by the authorities, amounting to a violation of Article 8, the Court accepts that the domestic authorities may authorise adoption if it is clearly in the best interests of the child.

Consequently, domestic authorities must take great care to avoid such errors. Since a main concern of the ECtHR from the very beginning has been the contact arrangement of the alternative care placement, this is at present what the discussion in Norway is primarily about. Following the ECtHR and Supreme Court decisions, a distinction is no longer made in this regard between long- and short-term placements. In practice, county boards and courts stipulate much more frequent contact than before.¹¹¹

VIII. CONCLUSION

The comparative analysis shows that in non-consensual adoption cases, the understanding of the concept of the best interests of the child seems to differ between the ECtHR on the one hand and Denmark and Norway on the other. The ECtHR places more emphasis on the child’s interest in respect for family life with its biological parents and perhaps less on the child’s interest in a permanent care situation with legal ties to their caregivers. The Nordic premise is that the child has a right to a healthy childhood, including reassuring caregivers. By granting adoptions without consent, the aim is to secure the child a family who can give them love and secure a lifelong relationship. This may help to explain why the Nordic countries are currently finding it difficult to reconcile with the practice of the ECtHR. Both Denmark and Norway agree that the decision to grant adoption without consent should not be a result of a lack of attempts to retain or create a relationship between the child and the biological parents, even if it is often difficult to ensure that these attempts are safe and rewarding for both the child and the parents. Despite those challenges, Norway tries to meet the requirements of the ECtHR. In Denmark, we see a clear tendency to let the legislation underline that the best interests of the child weigh more heavily than consideration for the biological parents in these cases.

Both the Norwegian and Danish authorities will undoubtedly follow the instructions of the ECtHR when it comes to providing a thorough and current decision basis, where all considerations are identified, properly examined, and considered. However, the judgments of the ECtHR against Norway should give Denmark reason to consider whether the tendency to prioritise the interests of the child should be considered more carefully so that future legislation does not become too far-reaching and thereby insufficient regarding the biological parents. On the other hand, it could be argued that the ECtHR should take care not to disregard the developing trends of the State parties, which, at least in a Nordic context, show a strong focus on the rights of the child and maybe a tendency when striking a fair balance of interests to attach greater weight to obtaining a clarification for the child’s life situation rather than long-term support and help to the parents.

Footnotes

Hanne Hartoft is appointed as representative for the whole group in communication questions.