Coding the judicial precedent – initial-categories

In total there are 153 paragraphs, being referred to 465 times by 34 judgements. 10 judgements were not referred to by any other judgement. Not all paragraphs are relevant for my research.

To delimit the paragraphs according to my research area, I created five categories. The five categories, hereafter called the initial-categories, are an initial coding that reflects the essence of each paragraph as a whole:

1. Pro-child 2. Pro-parents 3. Biological family 4. The Court

5. Other

The pro-child code covers every paragraph in favor of the child. The paragraphs in this code are all focused around the child’s best interest. Some paragraphs are direct when referring to the child’s interest; “…the child’s interest must come before all other considerations” (Gnahoré v. France, 2001, para.59); “…consideration of what is in the best interest of the child is in any event of crucial importance…” (Kutzner v. Germany, 2002, para.66); “… the Court wishes to underline that, in all decisions concerning children, their best interests must be paramount.” (R.

and H. v. The UK, 2011, para.73). Others are more subtle; “…decisions may well prove to be irreversible: thus, where a child has been taken away from his parents and placed with alternative carers, he may in the course of time establish with them new bonds which it might not be in his interests to disturb or interrupt by reversing a previous decision to restrict or terminate parental access to him.” (B. v. The UK, 1987, para.63); “The Court recalls that a fair balance must be struck between the interests of the child and those of the parent (see, for example, the Olsson v. Sweden judgment (no. 2) of 27 November 1992, Series A no. 250, pp.

35-36, para. 90) and that in doing so particular importance must be attached “to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent.” (E.P. v. Italy, 1999, para.62). In total there are 30 paragraphs in favor of the child, from 17 different judgements.

42 The pro-parent code covers all paragraphs in favor of the biological parents. Several of the paragraphs are focused around the fact that care orders are a temporary measures; “It would be inconsistent with this aim if the making of a care order or the adoption of a parental rights resolution were automatically to divest a natural parent of all further rights and duties in regard to access.” (B. v. The UK, 1987, para.77), “The Court considers that taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child.” (Johansen v.

Norway, 1996, para.78). Other paragraphs focus on the fact that even a mother that has been deprived of parental rights have the right to apply to the ECtHR on her child’s behalf, due to being the child’s biological mother; “Even where a mother has been deprived of parental rights - and indeed that is one of the causes of the dispute which she has referred to the Court - her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the child’s behalf too, in order to protect his or her interests.” (M.D. and Others v. Malta, 2012, para.27). The pro-parent code is diverse. The common denominator is that in one way or another, biological parents are seen in a favorable light. In total there are 32 paragraphs in favor of parents, from 18 different judgements.

The biological family code covers paragraphs in favor of not splitting up a biological family.

One third of all paragraphs in this category includes the same sentence: “The exercise of parental rights and the mutual enjoyment by parent and child of each other’s company constitute fundamental elements of family life” (B. v. The UK, 1987, para.60). This code also includes paragraphs that states that care orders are temporary measures and that the ultimate aim is to reunite the biological family: “It follows that the interest of the child dictates that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. In the interest not only of the parent concerned, but also of the child, the ultimate aim of any “care order” must be to “reunit[e] the ... parent with his or her child” (Gnahoré v. France, 2001, para.59); “The Court recalls that in cases like the present a parent’s and child’s right to respect for family life under Article 8 (art. 8) includes a right to the taking of measures with a view to their being reunited …” (Margareta and Roger Andersson v. Sweden, 1992, para.91). This code also includes paragraphs stating that parent’s and children’s interests should be weighed against each other; “…a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child” (Johansen v. Norway, 1996,

43 para.78). In total there are 29 paragraphs in favor of biological family, from 19 different judgements.

When looking at the paragraphs, it was clear that a greater number of paragraphs were about the ECtHRs role in assessing cases. I therefore created a code which I called Court. The Court code covers all paragraphs concerning the ECtHR assessments. This code contains significantly more paragraphs than the other four codes. In total there are 54 paragraphs, from 18 different judgements, in the Court code. The paragraphs themselves vary in content. Some refer to the Contracting States margin of appreciation “…in determining whether an interference is

“necessary in a democratic society” or whether there has been breach of a positive obligation, the Court will take into account that a margin of appreciation is left to the Contracting States”

(R. v. The UK, 1987, para.65(d)), “The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit.” (Kutzner v. Germany, 2002, para.67), others refer to the ECtHRs relation to domestic law: “The phrase “in accordance with the law” does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law; it thus implies that there must be a measure of protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by, inter alia, paragraph 1 of Article 8 (art. 8-1)” (Olsson v. Sweden (No.1), 1988, para.61(b)), “It is not however the Court’s role to examine domestic law in the abstract.” (P. C. and S. v. The UK, 2002, para.122).

All in all, the Court-code covers every paragraph that creates a precedent as to how the Court should act and assess a case.

I created the last code, other, in order to catch seemingly interesting paragraphs that do not fit into the four other categories. The content of the paragraphs varies from biological parents contact with their children, while the children are in public care, to foster parents contact with the children: “Moreover, telephone conversations between family members are covered by the notions of “family life” and “correspondence” within the meaning of Article 8” (Margareta and Roger Andersson v. Sweden, 1992, para.72), “The applicants also recalled that for the last six years the rationale for the continuation of the access restrictions had been that the children had to get attached to their foster family and that too close a relationship with their own parents endangered this purpose. For the authorities, it had been sufficient that the children were aware of their parents’ existence. As this justification had once passed the administrative courts’

44 proceedings it had been used for the reasoning of the rest of the restriction decisions from ever since.” (K. and T. v. Finland, 2001, para.166), “…predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible:

thus, where a child has been taken away from his parents and placed with alternative carers, he may in the course of time establish with them new bonds which it might not be in his interests to disturb or interrupt by reversing a previous decision to restrict or terminate parental access to him. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences.” (W. v. The UK, 1987, para.62). In total there are 25 paragraphs, from 15 different judgements, in the other code.

There are paragraphs that have been coded in more than one category. I.a. if a paragraph could be interpreted to be both pro-child and biological family, it has been coded in both categories.

The same goes for paragraphs that have more than one section. If different parts of the paragraph fit different categories, they are coded accordingly. See appendix C for a complete overview of the references coded in more than one category

After the initial coding I was left with 92 paragraphs, being referred to 312 times, by 27 different judgements. These paragraphs constitute the base of my analysis.