The case of Strand Lobben and others v. Norway 37282/13 raises issues about the human rights of birth mothers in adoption proceedings. In the context of all the discussions currently going on about human rights in adoption, it’s disappointing, despite having gone right up to the Grand Chamber of the court, that the judgment leaves the most contentious questions unresolved.
The judgment by the Grand Chamber of the European Court of Human Rights, given by 17 judges, was issued on May 2019 but only recently published. Many thanks to Claire Fenton Glynn @CFentonGlynn for tweeting it.
From a transparency perspective, this paragraph is noteworthy:
104. The first applicant had claimed in court that she was a victim of injustice and that she would fight until X was returned to her. To shed light on her own situation, she had chosen to post her story on the Internet in June 2011 with a photograph of herself and X. In that article and several comments posted during the autumn of 2011, she had made serious accusations against the child welfare services and the foster parents – accusations which she had admitted in court were untrue. The first applicant did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term.
The history of the case
Ms Lobben, her two children (X and Y) and her parents had issued an application against the Norwegian government in respect of their unsuccessful applications in Norwegian courts; they claimed that the adoption of X by his foster carers was a breach of the applicants’ Article 8 rights to family life. However, it’s very important to note here that Ms Lobben was herself issuing the children’s application – the adopted child had no independent voice (I come back to this below).
X was born in September 2008. He and his mother were offered mother and baby support by the local children’s welfare services because of her pre-birth health problems. The recital of facts in the judgment outlines a history of voluntary sought-after services by Ms Lobben and professional concerns of health and social services about her ability to parent. Unfortunately, the baby did not thrive, and a City Court decision was taken for him to be moved from his mother into an emergency placement a few weeks after his birth, where he soon recovered (although the judgment keeps describing him as continuing to be vulnerable).
After quite lengthy proceedings, X was made subject to a High Court care order in 2010. Ms Lobben continued to apply to lift the court order and to have more contact with X. Her applications went right up to the Norway Supreme Court. By this time, Ms Lobben had a second child, Y, living with her but the Supreme Court distinguished between the two by saying X was a vulnerable child, whereas Ms Lobben was able to care for Y. The Supreme Court noted that while Ms Lobben had been in contact with X for three years after his removal, her ability to engage with him had not improved. Ms Lobben then applied to the European Court of Human Rights in 2013.
In 2017, the Court concluded (by a majority of 7:3) that the Norwegian authorities had made the correct decision in the overriding interest of X. This interesting comment piece by academics Amy McEwan-Strand and Professor Marit Skivenes in Bergen, in 2018, mention that Norway is criticised by other jurisdictions in Europe and that ‘The decision comes at a time when the Norwegian child protection system is under massive pressure both nationally and internationally’.
Hearing by the Grand Chamber
However, Ms Lobben successfully referred the case to the Court’s Grand Chamber, who again considered the relevant Norwegian law, the UN Convention on the Rights of the Child, and the Council of Europe Revised Convention on the Adoption of Children, 2008.
The decision that Ms Lobben was trying to get changed was the one made by the City Court back in 2012. That decision was summarised by the Grand Chamber as follows:
109 . Applying the general principles of Norwegian law to the instant case, the City Court first noted that X was at that time three and a half years old and had lived in his foster home since he was three weeks old. His fundamental attachment in the social and psychological sense was to his foster parents, and it would in any event be a long-term placement. X was moreover a vulnerable child, and adoption would help to strengthen his sense of belonging with his foster parents, whom he regarded as his parents. It was particularly important to a child’s development to experience a secure and sound attachment to its psychological parents. Adoption would give X a sense of belonging and security in the years ahead for longer than the period a foster-home relationship would last. Practical considerations also indicated that persons who had care and control of a child and who in reality functioned as its parents should carry out the functions that derived from parental responsibilities.
110 . The City Court noted that adoption meant that the legal ties to the biological family were severed. In its opinion, X, despite spending the first three weeks of his life with his mother and having many contact sessions, had not bonded psychologically with her. That had remained the case even though he had been told at a later stage that the first applicant had given birth to him.
Unlike the law in England and Wales, Norwegian legislation expects child welfare agencies and courts to normally arrange open adoption (i.e. post-adoption face-to-face contact between children and their biological parents). However, in this particular case, the City Court decided that X was not benefitting from contact and did not enforce this but ‘took account of the fact that even if no further contact sessions were organised, the foster parents had taken a positive view of letting X contact his biological parent if he so wished.’ [para 111]
The issues were seen as so important that seven different European governments and three non-governmental organisations intervened (i.e. gave a view to the Grand Chamber).
In contrast to all the preceding decisions regarding X, the majority of the Grand Chamber judges (by a majority of 13:4) found in favour of the birth family. They conclude:
‘taking particular account of the limited evidence that could be drawn from the contact sessions that had been implemented … in conjunction with the failure – notwithstanding the first applicant’s new family situation – to order a fresh expert examination into her capacity to provide proper care and the central importance of this factor in the City Court’s assessment … and also of the lack of reasoning with regard to X’s continued vulnerability … the Court does not consider that the decision-making process leading to the impugned decision of 22 February 2012 was conducted so as to ensure that all views and interests of the applicants were duly taken into account. 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.’ [para 225]
This approach aligns with that of the UK Supreme Court, that adoption without consent is proportionate only when ‘nothing else will do’ (Re B 2013 UKSC 33). Of course, the $64m question is whether everything has been done to make it safe for the child to remain with their birth family. In Lobben, the Grand Chamber thought not.
The Grand Chamber ordered the Norwegian Government to pay Ms Lobben 25,000 euros in compensation and a contribution to her legal costs.
What did the child want?
Even though he was ten years old, the child ‘X’ was not independently represented. Two of the judges, Koskelo and Norden, issued a dissenting judgment on the right of the birth mother to represent the adopted child. They said [at para 17]:
It is high time for the Court to reconsider its approach and practices regarding the issue of permitting a natural parent to act on behalf of his or her child even where the circumstances of the case indicate an actual or potential conflict of interests between them. If the Court is genuinely to embrace, in line with the Convention on the Rights of the Child, the idea of children as subjects of distinct individual rights and the need to regard the best interests of the child as a primary consideration, it appears necessary to make changes also in the procedural practices.
Regarding Ms Lobben and X, we don’t know from this judgment:
- First, and most importantly, what X wants, alongside a professional independent view of what is in his best interests.
- Why X continues to be described as ‘vulnerable’. As he only lived with Ms Lobben for three weeks, it’s not clear if his vulnerability is attributable to her, or whether he has separate health problems.
- Whether contact between X has ever been restored or whether he has contact with his half-sibling, Y, or extended birth family.
- Why there is no voice for X’s adoptive parents and his wider adoptive family. They also have Art 8 rights but their only contribution was on the point of lack of representation of X.
- Whether the decision back in May will have had any effect on the arrangements for X.
One can only speculate on what effect this prolonged litigation has had on X and his adopters – ‘the only parents he has ever known’.
- We don’t know whether processes in Norway have changed since 2012 – the criticisms by the Grand Chamber may no longer apply.
- For those who have concerns about the whole idea of adoption without consent, the judgment seems to avoid that issue altogether, with Grand Chamber judges going right back to aspects of the processes in the local decision in 2012, and ignoring X’s current welfare.
There are a couple of online pieces on this case posted by religious organisations here and here. They seem to support Ms Lobben’s applications as a test case against the Norwegian system, which is presented as a policy issue. The statement in the Christian Post article that ‘the European Court of Human Rights ruling will force the government to reunite Trude Lobben with her son’ is inaccurate. The Grand Chamber has found that Ms Lobben’s Art 8 rights were violated and awarded her financial compensation. This decision is not an appeal against the adoption order and has no direct effect on the legal status of X.
Image by Ansgar Scheffold from Pixabay
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