Principles and Politics in Compulsory Adoption Cases in the European Court of Human Rights: The Right Balancing of Rights

Summary

ABSTRACT

Child and family policies are perceived very differently among the Member States of the Council of Europe (CoE). Compulsory adoption is the most far-reaching interference in the right to family life. In some countries, this measure is considered increasingly important as a means to protect the child from highly dysfunctional parents. This is the case in two Nordic countries: Denmark and, more noticeably, Norway.

Other Member States have reacted to the Norwegian position via government opinions before the European Court of Human Rights (ECtHR, the Court) in a high-profile Grand Chamber (GC) case dealing with adoption without consent, namely, Strand Lobben v Norway. Parallel to this, several reports and critical political motions have been launched in the CoE and the European Union (EU) against what some members countries see as overly drastic interventionist policies in child protection.

This contribution examines the Strand Lobben case from a contemporary historical perspective, bearing in mind previous judgments against Norway on the compulsory placement of children. The analysis indicates that during the last decade, there has been a change in the dominant position among the judges of the Court in relation to child protection. In balancing conflicting interests, family orientation has been given a higher priority than the principle of the best interests of the child.

Examined in a wider trans-European context, it becomes clear that children's rights and protection policies have developed into politicised themes linked to migration across Member States. This contribution shows that via the Court's decisions, childcare policies in some Member States, in particular, currently in Norway, are affected by family values and conceptions of children prevalent in other European regions. The trans-European mobilisation on family policy and child protection will arguably ignite renewed debates over balancing children’s and parents’ rights and meanings of children's right to family life.

INTRODUCTION

Perceptions of family life vary considerably among Member States within the Council of Europe (CoE). This means that family and child policy and legislation differ, as do, at a more foundational level, ideas about the family as a collective unit vis-à-vis the individual rights of family members.