Pro-parent – In-depth presentation of pragmatic arguments

56 See i.a. section 7.2.3 Pro-parent – In-depth presentation of pragmatic arguments.

63 respect for family life under Article 8 [of the ECHR] include a right to the taking of measures with a view to their being reunited.” (Margareta and Roger Andersson v. Sweden, 1992, para.91). In other words, the authorities have an obligation to take measures ensuring a reunion between biological parents and child. In Saviny, the ECtHR underline that any care order should be regarded as a temporary measure. The Court emphasizes that a care order could not be justified without “…prior consideration of the possible alternatives.” (Saviny v. Ukraine, 2009, para.52). Meaning that the Court considers a care order to be a “last-resort” measure. In Saviny, the ECtHR also states that a care order “…should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping siblings together.” (Saviny v. Ukraine, 2009, para.52). Keeping siblings together and allowing contact between parents and children ensures that there is a relationship between parents and children even though the children have been taken in to care by the authorities.

In Margareta and Roger Andersson, the ECtHR states that “…telephone conversations between family members are covered by the notions of “family life” and “correspondence” with the meaning of article 8 [of the ECHR]” (Margareta and Roger Andersson v. Sweden, 1992, para.72). When children are taken in to care it is the authorities’ duty to ensure that a relationship between biological parents and children can continue to develop. To hinder contact, both in person and over telephone, would be a violation against the children and parents’ right to family life.

In Saviny, the ECtHR points out that “…severing family ties means cutting a child off from its roots…” (Saviny v. Ukraine, 2009, para.49). The Court further states that in order to justify such a measure there must be “very exceptional circumstances” (Saviny v. Ukraine, 2009, para.49). In other word there are reasons that would justify breaking contact between biological parents and children. However, all measures taken by the authorities must be carefully considered and weighed against each other in order to ensure that the measures taken are in line with the biological parents’ and the child’s rights given by the ECHR.

7.1.5 The Court – In-depth presentation of legal arguments

Art.8(2) of the ECHR states that “there shall be no interference by a public authority … except such as in accordance with the law and is necessary in a democratic society…” (ECHR, 1950, art.8(2)). Both the phrase “in accordance with the law” and “necessary in a democratic society”

have repeatedly been addressed by the ECtHR. In Olsson, the Court points out that “in

64 accordance with the law” does not only refer 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 interference…” (Olsson v. Sweden (No.1), 1988, para.61(b)). Meaning that, according to the ECtHR, there shall be safeguards in the domestic legal system that protects their citizens against arbitrary interference.

In Margareta and Roger Andersson, the ECtHR further elaborates on what the Court means with “in accordance with the law”. As in Olsson, the Court points out that art.8(2) of the ECHR refers not only to domestic law but also the quality of law. However, the ECtHR emphasize that

“…the impugned measures should have a basis in domestic law.” (Margareta and Roger Andersson v. Sweden, 1992, para.75). Meaning that any care order issued by the public authorities in a Contracting State, must based on domestic law. Further, the ECtHR states that the domestic law should be “…formulated with sufficient precision to enable them - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” (Margareta and Roger Andersson v. Sweden, 1992, para.75). In other words, the domestic law must be phrased in a way that is reasonably understandable for anyone who may be affected by it. The ECtHR emphasize that a law that confers discretion is not necessarily inconsistent against the before mentioned requirement,

“…provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity … to give the individual adequate protection against arbitrary interference.”

(Margareta and Roger Andersson v. Sweden, 1992, para.75).

In X. v. Croatia, the ECtHR states that “The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities.” (X. v. Croatia, 2008, para.47).

This is justified, by the Court, by the fact that some actions are irreversible, such as if a child has been taken into public care and later is freed for adoption. The ECtHR emphasizes that

“This [care orders] is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interference.” (W. v. The UK, 1987, para.62, X. v. Croatia, 2008, para.47). The reason being that if one acts rashly and commits to an irreversible measure, the consequences for those affected by the measure would not be acceptable.

When it comes to assessing whether or not an interference was “necessary in a democratic society” the ECtHR states, in Olsson, that “…the notion of necessity implies that the interference corresponds to a pressing social need, and, in particular, that it is proportionate to the legitimate aim pursued…” (Olsson v. Sweden (No.1), 1988, para.67). Meaning that any

65 interference in a persons life must correlate with the social need to intervene and that the interference must be commensurate with the need for intervention. Further, the ECtHR underline that “…in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the Contracting States.”

(Olsson v. Sweden (No.1), 1988, para.67). This highlights the fact that the ECtHR acknowledge that a certain degree of discretion is needed for the respective authorities to assess the necessity of a measure. The ECtHR further states that the Court cannot confine itself to look at the impugned decision in isolation but see the case as a whole, to determine whether the justification of the measure was “relevant and sufficient”. The Court emphasize that the Courts review “…is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith.” (Olsson v. Sweden (No.1), 1988, para.68).

In Kutzner (para.63), P., C., and S. v. The UK (para.114), R.K. and A.K. v. The UK (para.34), A.D. and O.D. v. The UK (para.82) and Y.C. v. The UK (para.133), the ECtHR states that in order to determine whether a measure were “necessary in a democratic society” one needs to see each case as a whole. The five judgements also emphasize that in order to justify any measure, the measures must be “relevant and sufficient”. The ECtHR does not elaborate as to what the Court considers as “relevant and sufficient” in neither Kutzner nor P., C., and S. v. The UK, other than “…the reasons adduced to justify them [the measures] were relevant and sufficient for the purposes of paragraph 2 of Article 8.” (Kutzner v. Germany, 2002, para.63, P.

C. and S. v. The UK, 2002, para.114). The same concerns A.D. and O.D. v. The UK. However, in A.D. and O.D. v. The UK, the ECtHR emphasize that in addition to measures being “relevant and sufficient” the decision-making process must be fair and afford due respect to the applicant’s rights under art.8 of the ECHR (A.D. and O.D. v. The UK, 2010, para.82). The need to see each case as a whole is also the focus in R. and H. v. The UK (para.81). However, unlike in the other five judgments, the ECtHR does not use the phrase “necessary in a democratic society”. The Court mere states that one must consider the case as a whole in order to examine if the reasons “…adduced to justify this measure were relevant and sufficient…” (R. and H. v.

The UK, 2011, para.81).

In Y.C. v. The UK, the ECtHR gives a summary on established case-law.

“The Court’s case-law regarding care proceeding and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were

66

“relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention.” (Y.C.

v. The UK, 2012para.133)

The summary of case-law does not bring anything new to the field. However, it provides an overview of established practices as to how the ECtHR assesses whether an interference was

“necessary in a democratic society”.

The ECtHR points out, on several occasions, that although art.8 of the ECHR “…contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.” (McMichael v. The UK, 1995, para.87, Kutzner v. Germany, 2002, para.56, P. C. and S. v.

The UK, 2002, para.119, and R. and H. v. The UK, 2011, para.75).

As mentioned, the ECtHR has stated that there are no procedural requirements in art.8 of the ECHR. However, how the Court assesses decisions, and the related decision-making process, made by domestic authorities are repeatedly brought to attention by the Court.

Time is recognized by the ECtHR as a factor in the domestic authorities’ decision-making process and in any related judicial proceeding. The Court states that in cases concerning care orders there is a “…danger that any procedural delay will result in the de facto determination of the issue submitted to the Court before it has held its hearing.” (W. v. The UK, 1987, para.65).

For these reasons, the ECtHR underline that any decisions regarding future relations between biological parents and child shall be “…determined solely in the light of all relevant considerations and not by the mere effluxion of time.” (W. v. The UK, 1987, para.65). In other words, time is not an adequate argument in decisions regarding respect for family life.

In P., C., and S. v. The UK (para.121-122), the applicants claim that a domestic law, governing adoptions, is in breach of the ECHR. In response, ECtHR emphasize that it is not the Courts role to examine domestic law in abstract. However, the Court states that it can envisage situations where the domestic law in question may be applicable and not a violation against the ECHR and therefore the law per se is not in breach of the Convention. Instead of assessing the domestic law, the ECtHR states that it will examine if the measures taken in the particular case are in accordance with art.8 of the ECHR.

In Saviny, the ECtHR focuses on the quality of the decision-making process. The Court states that, in order to assess the quality of the decision-making process, it will see “…whether the

67 conclusion of the domestic authorities were based on sufficient evidentiary bases.” (Saviny v.

Ukraine, 2009, para.51). To determine whether the conclusion has come on a justifiable basis, the ECtHR has made a list of both professionals and laymen that could strengthen the conclusion reached by domestic authorities: “…statements from witnesses, reports by competent authorities, psychological and other expert assessments and medical notes.” (Saviny v. Ukraine, 2009, para.51). The ECtHR also emphasize that the biological parents must have had “…sufficient opportunity to participate in the procedure in question.” (Saviny v. Ukraine, 2009, para.51) and that children must have been able to express their views.

Regarding decisions made by authorities based on statements from professionals, the ECtHR acknowledge that the professionals may be mistaken in their assumptions.

“…mistaken judgments or assessments by professionals do not per se render child-care measures incompatible with the requirements of Article 8. The authorities, medical and social, have duties to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis-à-vis members of their families are proved, retrospectively, to have been misguided.” (R.K. and A.K. v. The UK, 2008, para.36)

In other words, the authorities’ positive duty to protect the health and development of children justifies any measures taken, if the measures are taken on the base of genuine and reasonably held concern about the child’s welfare. This includes cases where the concerns later prove to be unjustified.

The ECtHR acknowledge that there may be discrepancy between biological parents and the authorities, when it comes to decide what is in the child’s best interest. In both Scozzari and Giunta (2000para.138) and M.D. and Others (para.27), the ECtHR states that even in situations where biological parents have been deprived of parental rights, they may represent their child in cases before the Court. This is particularly important if the biological parents and the authorities are in conflict. Further, the ECtHR states that a mothers standing as a “…natural mother suffices to afford her the necessary power to apply to the Court on the children’s behalf…” (Scozzari and Giunta v. Italy, 2000, para.138, and M.D. and Others v. Malta, 2012, para.27).

7.1.6 Other – In-depth presentation of legal arguments

The ECtHR have summarized established case-law in both B. v. The UK and R. v. The UK. The summary is identical in the two judgments. Firstly, the Court emphasizes that any interference

68 from the domestic authorities with a person’s right to respect for family will be a violation against art.8 of the ECHR, “…unless it was “in accordance with the law”, had an aim or aims that is or are legitimate under Article 8 § 2 (art.8-2) and was “necessary in a democratic society”

for the aforesaid aim or aims.” (B. v. The UK, 1987, para.61(a), R. v. The UK, 1987, para.65(a)). In other words, unless there are compelling reasons that would justify an interference in a person’s right to respect for family life, the interference will be a violation against art.8 of the ECHR. Further, the ECtHR points out that although the object of art.8 of the ECHR is to protect individuals against arbitrary interference from the authorities, there may be additional obligations inherent in an effective “respect for family life” (B. v. The UK, 1987, para.61(c), R. v. The UK, 1987, para.65(c)).

In R. and H. v. The UK, the ECtHR emphasize the importance of taking extra care in proceedings that may lead to a child being put up for adoption. The Court points out that “…the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8” (R. and H. v. The UK, 2011, para.75). In order for an interference to be justified, the parents must be involved in the decision-making process to a degree that is sufficient to protect their interests. The ECtHR points out that it is the same principles that apply in all cases involving children, “…but they apply with greater force when those proceedings may culminate in a child being removed from their biological parent and placed for adoption.” (R. and H. v. The UK, 2011, para.76).

7.1.7 Discussing the legal arguments

In section 1.1 In-depth presentation of research question, I presented four supportive questions that would guide my research towards understanding how the ECtHR weigh children’s and parents’ rights in care order cases. I will in the following section discuss how the legal arguments may give some answers to the questions.

The first supportive question relates to how the ECtHR assess cases and secure the rule of law, across 47 different judicial systems, for everyone.

Looking at the ECtHRs decision making process, the Court emphasize that it is not a substitution for the domestic authorities. The Courts role is to review decision made by local authorities, in light of the ECHR, to potentially unveil any infraction on the convention (see i.a.

Johansen v. Norway, 1996, para.64, and R. and H. v. The UK, 2011, para.81). When reviewing decisions made by domestic authorities, the ECtHR look towards how the decisions are

69 justified. As previously mentioned, the decision made by domestic authorities is strengthened if the decision is supported by the statement of i.a. professionals, laymen or witnesses (see i.a.

R.K. and A.K. v. The UK, 2008, para.36, and Saviny v. Ukraine, 2009, para.51). By encouraging the domestic authorities to use, i.a., professionals in their decision-making process, the ECtHR secure that the decisions made by the domestic authorities are rooted in expert knowledge.

The ECtHR points out that any measure implemented by the domestic authorities, should be rooted in domestic law. The ECtHR underlines that there must be safeguards in the domestic legal system to secure against arbitrary interference. Further, the law should be phrased in a way that is reasonably understandable for the ones that are affected by it. Any law phrased in a way that opens for discretionary assessments should ensure that “…the scope of the discretion and the manner of its exercise are indicated with sufficient clarity…” to ensure the individuals protection against arbitrary interference (Olsson v. Sweden (No.1), 1988, para.61, Margareta and Roger Andersson v. Sweden, 1992, para.75). On several occasions, the ECtHR emphasizes that in order to assess if the reasons used to justify the measure was relevant and sufficient, one must see the case as a whole. The same is relevant for situations where the ECtHR assess whether the impugned measure was “necessary in a democratic society” (ECHR, 1950, art.8, A.D. and O.D. v. The UK, 2010, para.82, andR. and H. v. The UK, 2011, para.81).

Art.8(2) of the ECHR states that in order for an interference to be justified it must be “in accordance with the law” or “necessary in a democratic society”. While the phrase “in accordance with the law” underlines the authorities’ obligation to root any measure taken in domestic law, the meaning behind the phrase “necessary in a democratic society” is more elusive. In Olsson v. Sweden (No.1) (1988, para.67) the ECtHR states that the notion of necessity implies that there is a pressing social need to interfere. The Court also reiterates that a margin of appreciation is left to the domestic authorities in determining the necessity of an interference.

To summarize, the legal arguments state that it is the role of the ECtHR to assess whether the measures taken by the authorities are “in accordance with the law” or “necessary in a democratic society. In order to see if the measure was “in accordance with the law”, the ECtHR review how the authorities justified the measure. How the ECtHR assess whether an interference was

“necessary in a democratic society”, has been summarized by the Court in Y.C. v. The UK (2012, para.133): “First, the Court must examine whether, in the light of the case as a whole,

70 the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention.”.

The second supportive question revolves around the child’s best interests. A care order is issued to protect the child’s best interest.⁵⁷ Who is involved in the decision-making process leading up to a care order being issued and who decides what is in the child’s best interests?

As shown in table 12, in section 7.1.1, decision-making is the largest legal-argument category.

The decision-making arguments are only found in the paragraphs coded in the pro-parent- and the Court category. The arguments pertaining to decision-making is mainly focused on parents’

involvement in the decision-making process. W. v. The UK (1987) is one of the judgements with the highest referral-rate.⁵⁸ Three of seven paragraphs being referred to in the judgement revolve around the decision-making process. In W. v. The UK (1987, para.63 and para.64), the ECtHR states that parents must be involved in the decision-making process to an extent that

involvement in the decision-making process. W. v. The UK (1987) is one of the judgements with the highest referral-rate.⁵⁸ Three of seven paragraphs being referred to in the judgement revolve around the decision-making process. In W. v. The UK (1987, para.63 and para.64), the ECtHR states that parents must be involved in the decision-making process to an extent that