BIGUM AND OTHERS v. DENMARK
Inadmissible
Snejana Botoucharova
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. 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. 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 panicstricken. 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 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. 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.