Lack of Norwegian court oversight allows the removal of a child from its mother
At what point does the removal of a child from their parent become necessary, and what is the best way to go about this? When it is ever okay to remove a mother’s parental authority in order to allow a child to be adopted without her consent?
These are some of the questions at the very heart of Strand Lobben and Others v. Norway, a case recently ruled upon by the Grand Chamber of the European Court of Human Rights (ECHR). The applicants – Ms. Strand Lobben and her son, named in court documents as ‘X’ – challenged a series of legal decisions by both the ECHR and her native Norwegian court system concerning the non-consensual adoption of X by his foster parents. Specifically, the argument presented in this latest case was that a lack of oversight and a series of shortcomings in the decision-making process had led to the removal of her parental rights and authority.
Cases that make it all the way to the Grand Chamber of the ECHR are unlikely to be so clearcut, of course, and Strand Lobben and Others v. Norway is no different.
The facts of the case
Born in 1986, Ms Strand Lobben fell pregnant with X in 2007. After facing a series of difficulties – a difficult relationship with the child’s father, a brain injury, and with no permanent home – she applied for an abortion at six months, but was denied. This is the first time she came into contact with the welfare system.
She gave birth and, still without a permanent home, was admitted to a mother and care unit voluntarily. During her stay, it was noted that she had to be constantly reminded to feed X. She seemed, according to court documents, to be unable to care for her child on her own, and when she insisted on leaving the facility with X in tow, staff were concerned. According to court documents, medical staff were concerned that X wasn’t “receiving enough food to survive.” He “was not gaining sufficient weight and lacked energy,” and was suffering from a severe eye infection. He was also considered to have special needs, and she appeared uninterested in learning how best to care for these. Instead, “she continued to focus on herself.”
More concerning, however, was the mother’s inability – or unwillingness – to cooperate with staff. Though all nappy changes and feedings were to be reported, she did not. Even more alarming was that the mother often needed to be not only reminded, but pressured into feeding X, despite being told that he was not developing as usual.
Faced with a situation that required obvious and immediate intervention, the County Social Welfare Board (Barnevernet, literally “child protection”) temporarily approved an order for emergency foster care, which was subsequently appealed by Ms Strand Lobben. The appeal was rejected. Ms Strand Lobben then appealed this decision to the City Court. It was also rejected, on the grounds that X “had shown clear signs of neglect, both psychologically and physically.” X was, at the time of its judgment, “in better health and showed normal development,” and it ruled that “this was due to the emergency foster parents’ efforts and follow-up.”
In the years following, a series of appeal decisions (and then even more appeals, by both the mother and the local courts) clouded the issue further. As is necessary in an appellate court, rather than focusing primarily on the best interests of the child, it became a question of technicality. Had the appropriate courses of action been taken in order to justify such an extreme strategy by the Norwegian state? And where should the balance of interests lie: with the child alone, or with both the mother and child?
X’s continued (healthy) development
Throughout these legal challenges which, by now, had taken years, X continued to live with his foster parents and was developing at the normal rate for a child his age.
Though Ms Strand Lobben had been granted a series of contact hours under supervision, court documents outlined the observations of court-appointed psychologists: her ability to care for her son, despite the passing years, had not improved, and she continued to appear to have ‘inadequate basic basic parenting skills’. She was argumentative and resentful of supervising staff as well as the foster family, convinced that she was the subject of a conspiracy against her.
However, as the case progressed, another challenge presented itself. Now three years old, X had developed a particularly strong relationship with not only his foster parents and brother, but his extended foster family. The question then became: should the appeals be granted in favour of his mother, would it be healthy and appropriate to remove him from what had been his home for his entire life?
Psychologists appointed by the court opined that it would, in fact, result in serious, long-term harm for X, who would likely mourn the loss. Considering this, and the seeming inability of Ms Strand Lobben and her parents to not only empathise with the young boy, the Board ruled that X’s foster family be able to adopt him, and any and all parental rights of Ms Strand Lobben be removed.
It was at this point that Ms Strand Lobben took the case to the ECHR.
Facing the European Court of Human Rights
The case of Strand Lobben and Others v. Norway finally came to a close on 10 September 2019. The Grand Chamber – the highest chamber within the ECHR – ruled that under Article 8 of the European Convention of Human Rights, Ms Strand Lobben’s rights had been violated.
Article 8 provides “a right to respect for his private and family life, his home, and his correspondence.” It is the most broad of the articles ; that is, it is not well-defined and can thus be widely interpreted. This may well have been deliberate ; the more one defines legal provisions, the more restrictive and specific it becomes. This is both a positive and a negative: it can be widely interpreted and applied by the courts in many different situations.
However, it’s the second part of the Article that is perhaps of more interest. It limits one’s right to privacy, stating that “there shall be no interference by a public authority,” except in instances of, among others, “