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European Court of Human Rights takes account of Ordo Iuris opinions in family matters

Published: 11.08.2021

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• The ECHR issued a further three judgments in which is directly referred to the ‘amicus curiae’ opinions sent by the Institute. 

• The cases concerned children taken away from their parents in Norway because of their immature attitude or difficult personal circumstances. Barneverent first limited contact to a few meetings per year and then terminated parental rights because the emotional bond had broken down. 

• The Ordo Iuris Institute constantly monitors the proceedings of the European Court of Human Rights and reports its participation as a ‘friend of the court’ in cases that coincide with its statutory goals. 

• This is not the first time that ECHR takes into account the opinion sent by Ordo Iuris. Recently, the Institute informed about the case of Romanian LGBT activists, in which ECHR shared Ordo Iuris opinion. 

In July, the Court issued three more judgments in which it upheld the opinion presented by Ordo Iuris. All three cases concerned allegations that Norway had violated Article 8 of the European Convention on Human Rights, i.e. the right to respect for private and family life. The Institute was admitted to each of these cases as a friend of the court. This allowed us to present comments on the general principles, which complaints related to child custody should be examined, and to compare the practices of public authorities and courts, to child custody in Norway and Poland. It revealed significant deficiencies in Norway's activities in this field. Importantly, the mentioned Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms states that every individual has the right to respect for private and family life.

The case of R.O. v. Norway concerned the intervention of social welfare, which took the child away from the mother shortly after birth, due to her difficult personal situation (depression, drug abuse, inability to take care of hygiene in the flat, no permanent job). The child was placed in the care of the grandparents on the father's side. The district court allowed the mother visits, but only six times a year for two hours each. The mother started to work on herself but was not given the chance to regain custody of her child. Such an extreme restriction of the mother's contact with her child from the very beginning of life appears, in the ECtHR's view, to be an attempt to deprive the mother completely of the bond between herself and her child.

In the case of K.E. and A.K. v Norway, the child welfare authority Barnevernet removed a newborn child from its parents on the grounds of 'inability to meet its physical and psychological needs. The county court limited the parents' contact with their child to four meetings of one hour a year. The Court faulted the court for failing to make any effort to create conditions to facilitate the possibility of future reunification between the mother and child.

 In the case of F.Z. v. Norway, social welfare decided that a 19-year-old boy and a 17-year-old girl were not mature enough to look after two children. The first child was taken away by Barnevernet shortly after birth, and the second child was taken away while she was still pregnant. The parents were entitled to six meetings a year with their first child, and to one meeting a week with their second child - always under the supervision of an official. Over time, however, the office also restricted contact with the second child because she "did not maintain eye contact" during the supervised meetings.

When the second child was almost 5 years old, Barnevernet decided to completely terminate the couple's parental rights, due to their "inability to establish an emotional bond" with their child. All decisions were approved by the district court. The Strasbourg Court accused the Norwegian authorities that they had never created the conditions for the development of any emotional bonds between the parents and their child, so it was not surprising that after five years they were no longer there. The Court doubted whether such a bond could be established in the course of rare, brief, and supervised meetings.

Significantly, this is already another time that the ECHR has taken into account the opinion of the Ordo Iuris Institute in its judgment. A recent example is a judgment concerning a counter-manifestation of a Romanian organization that protested against the broadcast of a film promoting LGBT ideology. The Court found that the state failed to adequately secure the event and did not conduct a thorough investigation of the case, but found the charge of an alleged violation of Article 3 of the Convention (prohibition of torture) unfounded. As regards the allegation under Article 3, the ECtHR's position is consistent with the opinion submitted in these proceedings by the Ordo Iuris Institute.

"Recent ECtHR judgments confirm that Norway has a systemic problem with respect for parental rights. The Norwegian welfare system is based on the assumption that once a child is taken away, he or she should in principle never return to the parents, and that maintaining contact should only serve to make the child aware of his or her biological roots. In the proceedings before the Court, we have taken the position that even distressed parents who have been negligent in caring for their child have a right to a second chance. The State must give them a realistic opportunity to get their child back if they make progress in working on themselves. The Court has once again upheld this position. In this and other cases, we consistently monitor incoming complaints to the ECtHR and report our participation in proceedings important to the protection of family rights, respect for life, freedom of expression, or freedom of religion.  We have repeatedly presented our opinions before the Court as a friend of the court, and the ECHR often agrees with the position presented by the Institute, as exemplified by the cases presented above" - highlights Anna Kubacka from the Ordo Iuris International Law Center.

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