Communicated on 6 March 2020 Published on 23 March 2020

SECOND SECTION

Application no. 277/20 J.B. and E.M. against Norway lodged on 20 December 2019

SUBJECT MATTER OF THE CASE

Applicant A is a Nigerian national, and applicant B is a Norwegian national of Liberian origin. Both are currently residing in Sweden. The applicants are former partners and the parents of X, born in January 2013, and Y, born in august 2014.

On 20 June 2013, as X was four months old, a decision on emergency care order and placement in foster home was taken by the Child Protection Service. An ordinary d ecision on a care order and placement in foster home for X was given on 1 8 November 2013 by County Social Welfare Board ( Fylkesnemnda for barnevern og sosiale saker ). Contact rights were set at two hours twice per year.

On 5 June 2014 , by judgment of the City Court ( tingrett ), the decision of the board upheld . The foster parents in the designated foster home were a same sex couple.

On 2 December 2015 the two applicants applied for termination of the care order and placement in foster home , and, if the placement in foster home was not discontinued, that X should be placed in a foster home where the foster parents were not a same sex couple . On 29 March 2016, by decision by the Board, the application was declined. The applicants appealed against the decision.

On 3 January 2017, by judgment of the City Court, the decision not to terminate the care order was upheld. Contact rights were set at two hours twice a year for B, and two hours once a year for A. On 31 March 2017 the High Court ( lagmannsrett ) refused the applicant leave to appeal.

On 27 June 2018 the Board granted the request of the Child Protection Service that the applicants ’ parental responsibilities for X should be withdrawn and adoption should be approved. The applicants appealed against the decision.

On 2 January 2019 the City Court quashed the decision of the Board. The Child Protection Service appealed against the judgment .

On 24 April 2019 the High Court in a judgment withdrew the applicants ’ parental responsibilities for X and allowed for his foster parents to adopt him.

On 21 June 2019 the Supreme Court ( Høyesterett ) refused leave to appeal.

Relying on Article 8 of the Convention, the applicants submit that their right to respect for their family life was violated by the decision to withdraw the applicants ’ parental responsibilities for their son and allow for his foster parents to adopt him.

Furthermore, relying on Article 9 (1) in conjunction with Article 2 of Protocol No. 1, and Article 9 (2) of the Convention, the applicants submit that the placement of X in foster home of a same sex couple constitutes a breach of the parents ’ right to respect for their freedom of religion, and that adoption of their child by foster parents being a same sex couple does not meet the criteria of “necessary in a democratic society” in Article 9 (2) of the Convention as there are other foster families readily available.

QUESTION S TO THE PARTIES

1. Has there been a violation of the applicant ’ s rights under Article 8 of the Convention as a result of the decision to withdraw the applicants ’ parental responsibilities in respect of their son and allow for his foster parents to adopt him, see Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019?

2. Having regard to the fact that X was adopted by foster parents being a same sex couple, does a separate issue arise under Article 9 of the Convention as regards to the applicants’ freedom of religion? If so, are the admissibility criteria for such a complaint fulfilled, in particular the criterion on exhaustion of domestic remedies? If so, has there been a violation of the applicants’ rights under Article 9 of the Convention?