Přehled
Rozhodnutí
FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2404/05
by Heidi BIGUM and Others
against Denmark
The European Court of Human Rights (Fifth Section), sitting on 16 October 2006 as a Chamber composed of:
Mrs S. Botoucharova, President,
Mr P. Lorenzen,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 January 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are a married couple, born in 1975 and 1972, respectively, and their daughter, C, born on 1 November 2003. They live in Gram. They are represented before the Court by Mr Ladegaard Jensen, a lawyer practising in Holsted.
The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant parents suffer from arrested development. Intellectually they have been placed in the category of severely mentally retarded pesons and their disorders have been assessed to be congenital. Since their childhood they have been in close contact with the social and health authorities. The applicant parents have cohabited since 1995.
The taking into care of the applicant parents’ first child, M
On 22 September 1996 the applicant parents’ first child, M, was born. On the social authorities’ initiative, seven days after the birth the applicant parents and M moved into a family observation institution (Institutionen Bethesda), with staff consisting of social workers, psychologists and social education workers, which was to support the applicant parents and assess the extent to which they possessed potential in the parenting role. The institution submitted its report on 27 November 1996.
As to the applicant mother, the report stated, inter alia, that her attention could only be maintained for short intervals and with massive support. She was generally preoccupied with talking about her physical ailments to the extent that it took most of her energy. When faced with demands, for example if M started to cry or became restless, the mother became anxious and could seem panic‑stricken. She was not able to recognise her own problems and need for support and she had great difficulty in establishing contact with M.
As regards the applicant father, notably during the beginning of his stay at the institution, he often made verbal threats against the staff and the other families at the institution. He had violent nightmares during which he would cry out loudly and pull out his tongue. Moreover, his night sleep was broken by long hot showers for up to two hours, during which he would talk or shout to himself. Consequently, he would often be exhausted during the day and sleep most of the time. He had no structure to his day and showed no signs of being able to handle daily routines. He had no understanding or recognition of his need for help and support in the parental role. He had trouble realising the consequences of his actions, and was not capable of protecting their baby M from physical harm (for example, he left M alone on the changing table although the danger of doing so had been explained to him frequently).
With regard to the parents’ care skills, the report stated that both parents had extreme difficulty in establishing contact with M, and they often asked the staff to take over when they became impatient with her. None of the parents handled M particularly gently and their movements sometimes seemed uncoordinated. Mostly, they forgot to hold the baby’s head. They would not let M sleep and were in general not capable of recognising and understanding her needs. The report also stated that due to the parents’ inability to concentrate, M’s attempts to make contact with the parents were usually rejected or not answered. Thus, M eventually gave up contact and looked away from the parents when being with them.
The conclusion read as follows:
“The parents appear as a very emotional damaged couple who, because of their own disadvantaged upbringing, find it extremely difficult to master the task of parenting. The staff have no doubt that both parents have done their best in a spirit of love for their child, but their personality structure and their non-existing inner picture of the parent role prevent them from developing sufficient parenting functions. Moreover, their lack of mental resources is a further hindrance to the task of their developing parenting potential.
Despite intervention at various levels, the basic symbiotic mother-child dyad has not developed.
For the mother’s parental skills, this lack of bonding means that she is unable to see and understand the child’s signals, nor is she able to adapt to the child’s needs, which is crucial for the child’s attachment ability and emotional development.
We have examined whether the father has the resources to take over this process, but the examination showed that he does not master this either.
Their lack of timing and the resulting unintended abuse create unpredictability and chaos in the child’s world and will be a risk factor in her development,
Moreover, both parents lack the fundamental ability to structure their everyday lives, for the child as well as for themselves. In particular, their serious problems managing their finances permeate their entire everyday lives.
Their - as we see it - very resource-poor network means that the father, mother and child cannot expect adequate support. Mother and father tell us themselves that they have no friends who can give them special support. Our observations have also shown that their ability to create relations is virtually non-existent.”
On 9 December 1996 M was taken into public care without the parents’ consent. Since May 1997 she has lived with a foster family. A relief foster family was also provided for her, to take over during holidays etc. The applicant parents were granted regular access, which was to take place under surveillance. Since February 2004 access has taken place in the presence of the foster family.
The taking into care of the applicant parents’ second child, C
The applicant parents’ second child, C, was born on 1 November 2003.
Beforehand, at a meeting held on 8 September 2003, the applicant parents were informed by a social worker at the Municipality (Nørre-Rangstrup Kommune) that the latter would not recommend that the family be placed in a family institution when the child was born. The decision was based on the report of 27 November 1996 and reports on the applicant parents’ access to M. In addition, the decision was based on two statements of 19 January 2001 by a neuropsychologist, who in December 2000 had examined each of the applicant parents at the request of the social and health authorities in connection with the granting of social benefits (førtidspension). With regard to the applicant father the statement concluded:
“The findings of the neuropsychological examination show a 27-year-old man, whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level, thus presently placing him in the severely mentally retarded category. On review of the individual neuropsychological functions as well as the intellectual and memory functions, a number of heavy disorders appear, manifested in a more diffuse affection of cortical brain areas, most pronounced in the frontoparietal brain areas of the left hemisphere. The disorders are assessed to be congenital. As regards an assessment of future job possibilities, I believe the chances of his being placed in the labour market under normal conditions to be non-existent, and that he has no real capacity for working in any kind of occupation, not even in sheltered surroundings.”
With regard to the applicant mother the statement concluded:
“The findings of the neuropsychological examination show a 25-year-old woman whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level, thus presently placing her in the severely mentally retarded category. On review of the individual neuropsychological functions as well as the intellectual and memory functions, a number of disorders appear, manifested in a more diffuse affection of cortical brain areas, most pronounced in the frontoparietal brain areas of the right hemisphere. The disorders are assessed to be congenital.”
On 21 October 2003 the Municipality received written information from an acquaintance of the applicant parents that the latter planned to run away from the hospital with the baby when it had been born.
On 23 October 2003, a family care consultant also informed the Municipality that the applicant father had told her that with the help of others he had planned to run away with the baby within 24 hours after its birth.
By decision of 29 October 2003 the Municipality refused the applicant parents’ request that they and their newborn pursuant to Section 40 (2) of the Act on Social Services (Lov om Social Service) be placed at a family institution observation home or that mother and child be placed together with a foster family. At the same time the applicant parents were also informed that the Municipality intended to take the newborn into public care. The applicant appealed against the decision to the Social Appeal Board (Den Sociale Ankestyrelse).
On 1 November 2003 C was born and the same day the Chairman of the Children and Young Persons Committee (Børne- og Ungeudvalget) under the Municipality decided provisionally, pursuant to section 45 (1) of the Act on Social Services, to take C into public care without the consent of the applicant parents. The decision gave the police the authority to prevent the applicant parents from leaving the hospital with C, but the parents had unlimited access to their baby during the stay at the hospital.
According to section 45 (3) of the Act on Social Services, the preliminary decision was approved by the entire Children and Young Persons Committee at a meeting on 6 November 2003, during which the applicant parents’ lawyer was present. The decision was based on the report of 27 November 1996, the two statements of 19 January 2001 and the information submitted about the applicants’ intention to run away with the newborn baby.
The decision was implemented sixteen days later in connection with the applicant mother’s discharge from the hospital. At the wish of the applicant parents, C was placed with M’s relief foster family, which allowed the children to see each other on a regular basis.
During a meeting on 1 December 2003, at which the applicant parents, represented by their lawyer, were heard together with their two advisers (bisiddere), the Children- and Young Persons Committee made its final care order pursuant to section 42 (2) of the Act on Social Services.
The applicant parents had access to C one hour twice a week in the foster parents’ home.
On appeal, by decision of 6 January 2004, the Social Appeal Board upheld the Children and Young Persons Committee’s decisions of 6 November 2003 and 1 December 2003. Before the Board, the applicant parents, represented by their lawyer, and an adviser were heard. In addition, various documents were submitted, including the report of 27 November 1996, the two statements of 19 January 2001 concerning the neuropsychological examinations of the applicants and the Municipality’s case file. The Social Appeal Board found that due to the applicant parents’ diminished intellectual functioning and limited personal resources, there was an evident risk that C’s health and development would suffer serious damage if she was to remain with them. For the same reasons, it considered that the problems could not be solved in the applicant parents’ home, even if they were granted measures of support. The care order was to be reconsidered by the Children and Young Persons Committee no later than one year from the Board’s decision or, if the decision was brought before the High Court, no later than one year from the High Court’s judgment.
On 23 January 2004 the applicants appealed against the decision to the High Court of Western Denmark (Vestre Landsret), claiming the Municipality’s care order to be revoked as regards C. They also appealed against a decision of 20 November 2003 in which the Social Appeal Board had continued the taking into public care of M.
The applicant parents were heard by the High Court. In addition to the written material already submitted before the Social Appeal Board, the court also obtained two statements of February 2004 in which the foster families described the positive health and development of M and C respectively. They stated that the applicant parents’ access to the children was well implemented.
By judgment of 18 March 2004, the High Court found against the applicants. It stated that for the reasons set out by the Social Appeal Board the conditions under section 42 of the Act on Social Services were fulfilled for taking the applicant parents’ children, M and C, into public care.
The applicants’ request to be granted leave to appeal to the Supreme Court (Højesteret) was refused on 19 August 2004.
Subsequent developments
In 2004, in connection with the review of the public care order, the Municipality decided to make an assessment of the applicants’ parenting skills by a psychologist. The assessment was submitted on 1 February 2005 and contained a recommendation to maintain C in public care since the applicants parental skills were found too limited.
In a statement of 27 January 2005 the foster family described their view on C’s development and on how access with the parents was working out. The parents had been good at keeping the appointments, and although the father had only little contact with C, the mother was very preoccupied with proving that she could perform the role as a mother. Both applicant parents, however, were unable to interpret the child’s signals and impervious to advise. Consequently, the contact confused the child.
On 9 March 2005 having heard the applicant parents and one of their advisers, the Children and Young Persons Committee decided to continue the public care for another two years. On appeal, on 24 May 2005, the Social Appeal Board confirmed the decision.
The applicant did not bring this decision before the courts. On the contrary, on 1 December 2005 the applicant parents gave their consent to the taking of C into public care.
In the meantime, in March 2005, the applicant parent’s access to C was increased and now took place once a week for four hours in the presence of the support person appointed to the parents. In May 2005, however, on the applicant parents’ request, access was reduced to take place once a week for two hours.
B. Relevant domestic law and practice
The relevant provisions of the Act on Social Services (Lov om Social Service) at the time read as follows:
Section 40
1. The Municipality takes a decision as to measures to be taken under subsection 2, when this is deemed to be of significant importance with regard to a child’s or young person’s special need for support. From the measures listed in subsection 2, one or more of the least restrictive measures among those suitable shall be chosen. Any such decision shall be subject to the consent of the custodial parent, or other person having custody ... Any decision taken under subsection 2 (xi) shall be subject also to the consent of the young person, who has reached the age of 15 years.
2. The Municipality may decide:
(i) to offer consultation assistance relating to the child or young person’s conditions, including the admission of the child or young person to a daytime facility, a youth club, training or education establishment, etc.;
(ii) to offer practical, pedagogical or other support in the home;
(iii) to offer family therapy or similar support;
(iv) to offer the custodial parent, or other person having custody, the child or young person and other family members the possibility of staying on a full-time basis ..., in an institution, with a foster family, at another approved facility, in a municipal full-time facility or in an accommodation facility approved by the county authority subject to the rules provided under section 94a below;
(v) to offer a relief arrangement ... at a full-time institution, with a foster family, in a municipal full-time facility or at an approved facility;
(vi) to appoint a welfare officer for the child or young person;
(vii) to appoint a permanent contact person for the child or young person or for the whole family;
(viii) to grant financial support in respect of expenses incidental to the measures listed under (i)-(v) where the custodial parent or other person having custody cannot afford such expenses;
(ix) to grant financial support in respect of expenses incurred for the purpose of preventing a child or young person being taken into care, for the purpose of expediting the return of a child or young person to his/her home or of contributing towards creating and maintaining stable contact between parents and children while one or more children are in care;
(x) to grant financial support for attendance at a boarding school or continuation school where the custodial parent, or other person having custody, cannot afford such costs;
(xi) to take the child or young person into care at a full-time institution, with a foster family, in a municipal full-time facility or at an approved facility deemed suitable for the special needs of the child or young person ....
Section 40a
In connection with a child or a young person being taken into public care ..., the Municipality proposes that a support person be appointed to the custodial parent or other person having custody of the child.
Section 42
1. If there is an obvious risk that the health or development of the child or young person will suffer major damage due to
(i) inadequate care or treatment of the child or young person;
(ii) violence or other serious ill-treatment;
(iii) substance abuse or criminal conduct or other serious social difficulties on the part of the child or young person; or
(iv) any other behavioural or adjustment problems in the child or young person,
the Children and Young Persons Committee may decide that the child or the young person be taken into care according to section 40 (2) (xi) without the consent of the custodial parent or other person having custody, or of the young person having reached the age of 15 years. [Such a decision] may be made only when there is a reasonable assumption that the problems cannot be resolved during the child’s or young person’s continued stay in the home.
2. If it is in the child’s or young person’s best interest, the Children and Young Persons Committee may decide that the child or young person be taken into care pursuant to subsection 1, notwithstanding that the custodial parent, or other person having custody, and the young person consent to an arrangement under section 40 (2) (xi).
3. ...
4. Any decision taken under subsections 1-3 may be made on a provisional basis subject to the rules provided under section 45 below provided the requirements are met.
Section 45
1. Decisions under sections ... 42, ... 57(3), ... which, because of the immediate needs of the child or young person, cannot be deferred pending consideration by the Children and Young Persons Committee, may be made on a provisional basis by the Chairman of the Committee or in his absence by the Deputy Chairman.
2. The custodial parent or other person having custody, ... shall within 24 hours of the implementation of a provisional decision be given written notice of the decision and the reasons for the decision. Such notice shall also give particulars of the right of access to case records provided for by the Act on Public Administration, the right to be heard and to receive free legal assistance.
3. A provisional decision made under subsection 1 shall be submitted to the Children and Young Persons Committee for their approval as soon as possible and within a maximum period of seven days from the implementation of the decision, whether or not the measure has been discontinued.
...
Section 46
1. Measures under sections 40, ... 42, ... shall be discontinued when their object has been achieved, when they no longer serve their purpose taking into account the special needs of the child or young person, or when the young person attains the age of 18 ...
Section 62
1. The Children and Young Persons Committee ... shall in a meeting decide on the following ... (ii) to take a child or young person into care under section 42; ... (vi) approval of a provisional decision under section 45(3);
2. Before a decision is made, the custodial parent, or other person having custody, the child or young person, the legal adviser and any other adviser to the custodial parent or other person having custody shall be given an opportunity to be heard by the Children and Young Persons Committee. An opportunity provided under the first sentence to the child or young person may be dispensed with if the child has not attained the age of 12 or where it is deemed to be harmful to the child or young person.
...
Section 123
1. Decisions by the Children and Young Persons Committee accordingly to section 62, may be brought before the Social Appeals Board ...
...
Section 124
1. Decisions by the Social Appeal Board under sections 47 (3) and 123 may be brought before the High Court, within four weeks of the date on which the party appealing has been given notice of the decision.
...
Section 126
Decisions by the High Court cannot be appealed against to the Supreme Court. However, the Leave-to-Appeal Board may grant leave to appeal to the Supreme Court against decisions or judgments by the High Court when they are found of general principle. Such a request must be made within respectively three or six months from the decision or the judgment.
The relevant provisions of the Act on Legal Protection and Administration in Social Matters (Lov om retsikkerhed og administration på det sociale område) at the time read as follows:
Section 19
1. The Children and Young Persons Committee consists of:
(i) three members elected by the municipal council from among its members;
(ii) the City Court Judge in the district. If there are several judges in the judicial district the Court Administration shall appoint one of them; and
(iii) an educational/psychology expert to be appointed by the county council for the municipal term of office.
...
Section 20
1. The Children and Young Persons Committee shall elect its own chairman and deputy chairman from among the members elected by the municipal council.
2. The judge shall chair the meetings of the committee and shall ensure that the necessary investigations have been undertaken, decide whether to obtain more information and may require a judicial examination to be conducted under section 1018 of the Administration of Justice Act. Also, the judge shall provide guidance as to the interpretation and application of the rules and consider and evaluate the information available.
COMPLAINT
The applicants complained that the decision to take C into public care only sixteen days after her birth violated Article 8 of the Convention.
THE LAW
1. The applicants invoked Article 8 of the Convention which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government firstly maintained that the applicant parents could no longer claim to be victims under the said provision since they subsequently consented to the placement of C into public care on 1 December 2005.
In any event, they found that the interference was in accordance with the law, pursued a legitimate aim and was justified under Article 8 § 2 of the Convention.
They pointed out that the applicants, represented by counsel and assisted by two advisers, were involved in the entire decision-making process and could present their views before all the relevant authorities.
Furthermore, removing C from her parents sixteen days after her birth and placing of her with a foster family had been justified by extraordinarily compelling reasons, namely the protection of her health and development. Other alternatives had been considered and the decision had been based on solid documentation, including the report of 27 November 1996, the two statements of 19 January 2001 concerning the neuropsychological examinations of the applicants, the Municipality’s case-file, and the information as to the applicant parents’ intentions of leaving the hospital with the baby shortly after her birth, all of which clearly indicated that the applicant parents due to their mental problems and impaired social skills were unable to take proper care of C. The Government recalled, however, that the measures taken did not bar the applicant parents from seeing C, on the contrary, the authorities made great efforts to ensure the applicant parents’ contact and access to C and M.
The applicants maintained that they were victims within the meaning of Article 34 of the Convention and that the taking of C into public care sixteen days after her birth had been a disproportionate measure, which was not supported by relevant and sufficient reasons or necessary in a “democratic society”.
In their view, the authorities failed to conduct an independent review of the applicant parents’ relationship with C. Instead, they based their decision on a report which was seven years old, dating back to 27 November 1996 concerning their first child, M. The institution in question had allegedly not been in a position to conduct an examination of the applicants’ parental skills within two months or to provide the authorities with psychological knowledge of the interactions in the family, and in any event the applicant parents had developed in their abilities. Thus, as to the relevant year 2003, nothing could be deducted with certainty from the old report.
In so far as the authorities’ decision was also based on the neuropsychological examinations of the applicant parents, they pointed out that the statements of 19 January 2001 had not been prepared with the purpose of assessing their parental skills and accordingly contained no information thereon.
The applicant parents submitted in addition that the authorities lacked judgment and common sense in taking the applicant father’s statement to the family care consultant into account as to his plan to run away from the hospital with the baby. Obviously, the said statement was merely the result of his despair and frustration and had no foundation. If he had really intended to flee with C, he would of course not have informed the authorities thereof.
Moreover, the applicants found that there were several alternative solutions which the authorities failed even to consider, namely that the whole family could have been placed in a family institution or that mother and child could have been placed together with a foster family.
2. The Court must first address the Government’s objection according to which the applicants cannot claim to be victims of a violation under Article 8 of the Convention.
In this respect the Court notes, on the one hand, that the applicants’ complaint before the Court concerns the original order to take C into public care, which the applicant at no point consented to. Indeed, they appealed against the provisional decision of 6 November 2003 and the final decision of 1 December 2003 to all relevant authorities, albeit in vain. On the other hand, as the Government have rightly pointed out, subsequently, on 1 December 2005 the applicants consented to the placement of C into public care.
The Court need not resolve this issue since the application is in any event inadmissible as follows.
3. The Court finds, and this is uncontested, that both the provisional order, which was implemented sixteen days after C’s birth, and the final order to take C into public care, constituted interferences with the applicants’ rights under the first paragraph of Article 8 and that it falls to be determined whether they complied with the requirements of the second paragraph. As it is also not in dispute that the measures taken were in accordance with the law and pursued the legitimate aim of the protection of health and the right of others, namely of C, the Court’s examination will concentrate on the necessity of the measures as that term has been interpreted in its case-law.
The Court recalls that the national authorities have the benefit of direct contact with all the persons concerned and must be granted a margin of appreciation in respect of decisions to take and keep children in public care (see Bronda v. Italy, judgment of 9 June 1998, Reports of Judgments and Decisions 1998‑IV and K. and T. v. Finland [GC], no. 25702/94, ECHR 2001‑VII).
Moreover, questions of emergency care are, by their nature, decided on a highly provisional basis and on an assessment of risk to the child reached on the basis of the information, inevitably incomplete, available at the time.
However, the taking of a new-born baby into public care at the moment of its birth is an extremely severe measure, and there must be extraordinarily compelling reasons before a baby can be physically removed from its mother against her will and immediately after birth as a consequence of a procedure in which neither she nor her partner have been involved (see, for example, P., C. and S. v. the United Kingdom, no. 56547/00, § 116, ECHR 2002‑VI). Nevertheless, the Court is aware of the problems facing the authorities in situations where emergency steps must be taken. If no action is taken, there exists a real risk that harm will occur to the child and that the authorities will be held to account for their failure to intervene. At the same time, if protective steps are taken, the authorities risk to be blamed for unacceptable interference with the right to respect for family life (see, for example, Haase v. Germany, no. 11057/02, § 101, ECHR 2004-III).
The taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child. In this regard a fair balance has to be struck between the interests of the child remaining in care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Haase v. Germany, cited above, § 93).
Finally, the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with their child. Put in other words, the lack of requisite intellectual capacities is not necessarily sufficient to justify the severing of the relationship between the parents and the child (see, among others, Kutzner v. Germany, no. 46544/99, § 69, ECHR 2002‑I).
Turning to the facts of the present case, the Court notes that the Children and Young Persons Committee’s care order of 1 December 2003, which was upheld by the Social Appeal Board and the High Court of Western Denmark, was based mainly on the report of 27 November 1996 and the two statements of 19 January 2001 concerning the neuropsychological examinations of the applicants.
It is true that the applicants have pointed out in this connection that the former report was prepared seven years before the event in question and that the latter did not as such contain any specific information as to their parental skills.
Nevertheless, although a re-assessment of the applicant parents’ parental skills at the time of C’s birth would have been preferable, there is no suggestion in the present case that the applicant parents’ condition was likely to improve with the passage of time. The Court finds that the authorities had good cause to consider the documentation before it as being valid, relevant and sufficient to conclude that due to the applicant parents’ diminished intellectual functioning and limited personal resources there was an evident risk that C’s health and development would suffer serious damage if she was to remain with her biological parents. In addition, it recalls that the authorities had the benefit of having had direct contact with the applicant parents on a regular basis and specific experience with their skills as parents since 1996, when M was born.
The Court also notes that the applicant parents, represented by their lawyer, were heard before all instances, namely the Children and Young Persons Committee, the Social Appeal Board and the High Court of Western Denmark. Furthermore, the applicant parents had been notified on 8 September 2003 that the Municipality would not recommend that the applicants be placed at a family institution. Accordingly, already two months before the birth of C, the applicant parents were aware that the Municipality had considered less intrusive interferences but not found such measures adequate. By decision of 29 October 2003, the Municipality officially refused the applicant parents’ request that they and their newborn be placed at a family institution observation home or that mother and child be placed together with a foster family. At the same time, the applicant parents were also informed that the Municipality intended to take the newborn into public care. Thus, there are no elements in the case indicating that the applicants were not duly involved in the decision-making process.
In addition, the authorities made various efforts to ensure the applicant parents’ contact with C and to comply with their wishes, for example as to access and as to placing C with M’s relief foster family, which allowed the children to see each other on a regular basis. It will be recalled that in the beginning, the applicant parents had access to C for one hour twice a week in the home of the foster family. Later, in March 2005 their access to C was increased to take place once a week for four hours. In May 2005, it was only on the applicant parents’ request that access was reduced to take place once a week for two hours.
In the light of the foregoing, the Court is satisfied that the taking of C into public care on 1 December 2003 was based on reasons which were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8 and that the decision-making process satisfied the requirements of that provision.
4. The applicants may also be understood as complaining about the provisional care order.
The Court notes that the order was decided on by the Chairman of the Children and Young Persons Committee on the day of C’s birth on 1 November 2003 and approved by the entire Committee on 6 November 2003. On appeal, it was upheld by the Social Appeal Board and the High Court of Western Denmark. The principal reasons for the provisional care order were the same as those relied on in support of the final care decision rendered on 1 December 2003, and found by the Court to be in conformity with Article 8 of the Convention.
The additional reason behind the provisional care order was that the applicant father had stated his intentions of running away with the newborn baby from the hospital in order to avoid that the child be taken into public care. The provisional decision thus gave the police authority to prevent the applicant parents from leaving the hospital with C.
The Court notes, however, that C was not physically removed from her mother at birth. The implementation of the provisional order took place sixteen days thereafter and the applicant parents had unlimited access to their baby during the stay at the hospital.
Moreover, even if the applicant father had no real intentions of running away with C, in the Court’s view the authorities were at that time forced to take an immediate decision as to whether it was a risk for C to stay with the parents who remained free to leave the hospital with their baby if no decision was taken.
5. In these circumstances, and having regard to the margin of appreciation falling to the domestic authorities, the Court considers that they were reasonably entitled to believe that it was necessary to take C into public care. There is accordingly no indication of a violation of Article 8 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
Claudia Westerdiek Snejana Botoucharova
Registrar President