JOINT DISSENTING OPINION OF JUDGES GROZEV, O ’ LEARY AND H Ü SEYNOV

I. Introduction

1 . A majority of the chamber has found that the decision authorising the adoption of the second applicant by foster parents was not in violation of his or his biological mother ’ s right to family life under Article 8 of the Convention. [1]

2 . Given the particular circumstances of the present case, the information provided in support of the decisions by the domestic authorities and the respondent Government and the legal standards established in the Court ’ s case-law in this field, we respectfully disagree with the majority.

3 . It is well-established that in cases relating to placement of children in care, the domestic authorities enjoy a wide margin of appreciation. The margin narrows when parental rights are restricted or removed. [2] Furthermore, the national authorities enjoy direct contact with the persons whose rights are affected by any decision alleged to violate Article 8 of the Convention. As a result, it is clearly not for the Court to don the mantle of a fourth instance tribunal and, advertently or inadvertently, substitute its own assessment for that of the domestic authorities in such a sensitive field. [3] By dissenting in the present case we do not lose sight of these necessary and fundamental strictures.

4 . Nevertheless, it cannot be forgotten that the Court ’ s case-law recognises that adoption against the wishes of a biological parent, with the consequent breaking of de facto and de jure ties between parent and child and the termination of access rights, is an irreversible and far-reaching interference with the right to family life of both parent and child. The “severing of those ties means cutting a child off from its roots”. [4] It is for this reason that the Court has held that the interest of the child dictates that “family ties may only be severed in very exceptional circumstances ”. [5]

5 . Subsidiarity and the margin of appreciation dictate particular caution in a case such as this. However, they do not absolve the Court from a forensic examination of the facts, of whether the reasons provided by the domestic authorities were both relevant and sufficient and, lastly, of whether the aforementioned exceptional circumstances standard was met.

II. Circumstances of the case

6 . As our disagreement with the majority turns not only on the manner in which they have presented and applied the relevant jurisprudential standards under Article 8 of the Convention, but also the manner in which they have considered, or perhaps distanced themselves, from the concrete circumstances of the present case, it is necessary to recapitulate the facts in some detail.

7 . The first applicant ’ s child was born on 25 September 2008. The first applicant and the child moved to a family centre four days later, the mother having agreed, given her recognised need for guidance and support in early motherhood, to stay in such a centre for three months. [6]

1. Emergency placement in care

8 . On 17 October 2008, when the child was three weeks old, the first applicant withdrew her consent to stay in the family centre and, on the same date, the child was placed in emergency care due to weight loss during the first weeks of life and the mother ’ s reported failure to understand or respond to his needs. It appears from the majority judgment that the first applicant had sought assurances that after the three month stay she would be allowed to return home with her child. When such assurances were not forthcoming she had sought to leave (see § 33 of the majority judgment). In her appeal to the County Social Welfare Board, the first applicant indicated that she and X could live with her parents, that her mother was willing to provide support and that she was willing to accept the help of the child welfare authorities. Both the County Social Welfare Board and the City Court rejected the first applicant ’ s appeal, referring to the report of the family centre which had considered that the mother was incapable of taking care of her child without support or follow up, as well as a psychological report, based on an evaluation of X between ten days old and two months, which had pointed to his early delayed development and the fact that he had been a child at high risk when first sent for evaluation. That report went on to state that by two months old, after placement, X was “functioning as a normal two-month-old baby [with] the possibility of a good normal development” (see § 12 of the majority judgment).

2. Extended placement in care

9 . The emergency placement order was transformed into a more long-term one in March 2009 when the child was just over five months. The first applicant ’ s contact rights were from that moment reduced to six two-hour visits per year under supervision. The extension of the placement was justified by the risk of serious physical and psychological deficiencies in his care-giving were he returned to his mother and the impossibility of remedying that risk through assistance measures. The first applicant ’ s appeal – in which she had complained of a failure to examine alternative measures to placement and a lack of sufficient evidence for extended placement – initially succeeded. The City Court, which handed down its decision when X was almost eleven months old, held that he should be returned to the first applicant after a period of readjustment and that the weight loss in the early weeks of his life might have been due to an infection. Increased access was granted to the first applicant but it was reported that both she and her parents, who attended several of the visits, demonstrated hostility towards the foster mother and the child welfare authorities. At no point in the file is it explained why all supervised visits with the child occurred in the presence of the foster mother. The child welfare authorities appealed the City Court judgment and enforcement of the latter was suspended until the case could be heard by the High Court. Psychologists and a family expert were appointed by the child welfare authorities and the High Court. In its decision of 22 April 2010, the High Court confirmed the decision of the Board that X should be taken into compulsory care and reduced the first applicant ’ s visits to four two-hour visits per year. At this stage X was almost one year and seven months old. The High Court based its decision on the early report from the family centre which detailed the lack of care during the first three weeks of X ’ s life, as well as reports by a family the rapist and a psychologist, M.S. The behaviour of the first applicant during the contact sessions with X, which were viewed negatively by the appointed supervisors, also played an important role. According to the psychologist M.S., those sessions were so negative the mother should be given no access to her child. Furthermore, she relied heavily on the aforementioned report established by the family centre which had documented the neglect of X during the first three weeks of his life and previous reports detailing the biological mother ’ s medical history and medical difficulties as a child. The High Court concluded that a care order was necessary and that assistance measures for the mother would not be sufficient to allow X to be returned to her care. The High Court also gave weight to the attachment that X had by then formed with the foster parents, particularly the foster mother. It is worth noting that by the date of the High Court judgment on 22 April 2010, the first applicant ’ s access to X had been restricted from when he was three weeks old and highly restricted from the age of five months. [7]

3. Adoption proceedings

10 . In July 2011, when the child was two years and ten months old, the authorities sought to deprive the first applicant of her parental responsibility with a view to authorising X ’ s adoption by his foster parents. In the alternative, they sought to deny her contact rights. For her part, the first applicant sought termination of the care order or extended contact rights.

11 . By a decision of 8 December 2011, the County Social Welfare Board held that the first applicant should be deprived of her parental responsibility for X and that the latter ’ s foster parents should be allowed to adopt him.

12 . The formal procedure followed by the Board to reach that decision is not at the heart of this dissent, albeit how and what expert and other evidence it considered is relevant. [8]

13 . What is of more importance is the basis for the Board ’ s decision – the statements of the first applicant during the hearing attesting to continued tension between her and the child welfare authorities, the contact sessions which continued to be influenced by tensions between the biological and foster mothers and the maternal grandmother, the reasonable assumption of the Board that X was “a particularly vulnerable child”, his circumstances since soon after he was born, the expert opinion of M.S., consulted a year and a half previously in the context of the child placement proceedings and the fact that the alternative to adoption would have been long-term care, which would not have been in X ’ s interests or those of his foster parents, who were his primary caregivers.

14 . When the Board adopted its decision in 2011, the first applicant had since married and given birth to a second child Y. She relied on this change in her personal circumstances and on the fact that her competence as a care-giver had been examined and not called into question as regards her second child. The Board took note of this information but deemed the first applicant ’ s capacity to care for her second child, Y, insufficient to demonstrate her capacity to care for her first child, X, given the latter ’ s special needs.

15 . The Board ’ s decision was upheld by the City Court on 22 February 2012.

III. General principles under Article 8 of the Convention in relation to child placement and adoption

16 . The majority judgment reproduces the general principles established in the Court ’ s case-law on Article 8 in relation to child placement and adoption proceedings. [9] Distinguishing between the two, as the case-law of the Court requires us to do, those principles and the legal standards which derive from them can be summarised as follows:

- When assessing whether a child needs to be taken into care, domestic authorities enjoy a wide margin of appreciation. The margin tightens however depending on the nature of the issues and the seriousness of the interests at stake. Where access rights are restricted or removed, the margin is indisputably narrower and the Court ’ s scrutiny stricter. [10]

- The Court has repeatedly recognised that perceptions as to the appropriateness of the intervention by public authorities in a child ’ s care vary from one State to the next. Furthermore, as the domestic authorities have direct contact with the persons concerned by an impugned decision, the Court must be careful not to substitute itself for the domestic authorities in the exercise of their responsibilities in this field. [11]

- When it comes to assessing whether the process leading to a decision impugned under Article 8 reaches the Convention standard, the Court will look at the process as a whole, whether a parent was sufficiently involved and fully able to present his or her case, whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of other factors (factual, emotional, psychological, material and medical), whether there was a balanced and reasonable assessment of the respective interests of each person and whether relevant and sufficient reasons were provided for the impugned decisions. [12]

- A distinction is drawn in the case-law between placement decisions and those relating to adoption. As regards the former, the Court has repeatedly stated that care should be regarded as a temporary measure, that it should be discontinued when circumstances permit and measures implementing temporary care orders should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. [13]

- As regards, once again, placement in care, passage of a considerable period of time may mean that the interest of the child not to have his or her de facto family situation changed may override the interest of the biological parents to have the family reunited. [14]

- In contrast, where decisions relating to childcare are irreversible, such as when adoption is authorised, resulting in the breaking of de facto and de jure ties between a biological parent and a child, the Court ’ s case-law points to “an even greater call than usual for protection against arbitrary interferences”. [15] Stricter scrutiny is required of additional restrictions on parental rights of access; scrutiny which becomes even stricter when it comes to deprivation of parental responsibilities and the authorisation of adoption. As the majority judgment points out “such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child ’ s best interests”. [16]

- Consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. The domestic authorities must strike a fair balance between the interests of the child and those of the parents and, in the balancing process, particular importance should be attached to the best interests of the child which, depending on the circumstances, may override those of the parents. [17]

IV. Whether in the present case the standards established in the case-law were met?

17 . In our view, it has not been demonstrated in the instant case that the relevant standards in relation to adoption have been met.

18 . As a preliminary point, it is stated in the majority judgment that it is not for the Court to assess whether there were relevant and sufficient reasons for placing X in care first as an emergency measure and subsequently for a longer period. While this is, strictly speaking, true (the first applicant ’ s complaint relates to the child ’ s adoption), it cannot be forgotten that those decisions fed inexorably into the decisions leading to adoption, created the passage of time so detrimental to the reunification of a family unit, influenced the assessment over time of the child ’ s best interests and, crucially, placed the first applicant in a position which was inevitably in conflict with that of the authorities which had ordered and maintained the placement and with the foster parents, whose interest lay in promoting the relationship with the child with a view ultimately to adopting him. It is not our purpose, in this dissent, to call into question the decisions of the domestic authorities regarding placement given the evidence that the first applicant, particularly as the aforementioned conflict spiralled, had difficulty placing the interests, experience and perceptions of the child above her own loss. However, it is not possible to ignore the sequence of events which preceded and led to the adoption and in the context of which that conflict appeared to grow. [18] As the general principles outlined above clearly state, a care order should be regarded as a temporary measure to be discontinued as soon as possible where circumstances permit and States have a positive duty to facilitate reunification. [19]

19 . As regards the deprivation of the first applicant ’ s parental responsibility with a view to authorising adoption, the majority judgment endorses the City Court decision of 22 February 2012 according to which there were “particularly weighty reasons” to allow the latter (§ 120 of the majority judgment). Those reasons emerge in the majority judgment as follows:

20 . Firstly, the fundamental and psychological attachment of X to his foster parents given the length of time spent with them and the lack of psychological attachment to his mother despite the many contact sessions is considered important (§ 122 of the majority judgment). Relying on Aune v. Norway , the majority held that those limited social ties between biological mother and child “had to have implications for the degree of protection that ought to be afforded to the first applicant ’ s right to respect for her family life” (§ 123 of the majority judgment).

21 . Although the adoption meant that the first applicant and X no longer had any legal rights to access each other, the majority pointed secondly to the City Court ’ s reference to the willingness of the foster parent ’ s “to let X contact the first applicant if he so wished” (§§ 59 and 124 of the majority judgment). For the majority, this did not correspond to the guaranteed access at issue in Aune , where no violation of Article 8 in an adoption context had been found. [20] However, the willingness of the foster parents is nevertheless considered either a relevant or a sufficient reason in the instant case.

22 . Thirdly, throughout the decisions of the domestic authorities and the majority judgment, X ’ s vulnerability is referred to. In the Board ’ s decision of 2011 authorising adoption, it is stated that the Board “finds it reasonable to assume that X is a particularly vulnerable child” (§ 43 of the majority judgment). The child welfare authorities, in their opposition to the first applicant ’ s appeal against the adoption report him as being a vulnerable child ( ibid , § 46), a description also used by the City Court ( ibid , §§ 49 and 57). The majority judgment refers to these sources and concludes that the City Court was guided by the interests of X, notably his particular need for security in the foster-home environment given his “psychological vulnerability” ( ibid , §§ 125 and 129).

23 . Finally, the tension and conflict during contact sessions between the first applicant, the authorities and the foster mother and the child ’ s reaction to the latter, which were relied on by the domestic authorities to extend the placement in care, are also relied on to justify deprivation of parental responsibilities and adoption. Once again relying on Aune , adoption was seen as a means to counter such risks of latent conflict.

24 . Given the legal and social effects of adoption, its irreversibility and the exceptional circumstances standard announced in the Court ’ s case-law and ostensibly adhered to in the instant case, do these factors suffice? In addition, are there other factors absent from the majority ’ s assessment given the material in the case file?

(1) As regards the lack of social and/or psychological ties between the biological mother and the child, while the former was clearly at least partly responsible for the quality of the contact sessions which took place, a mother who has been deprived of access to her child, aged three weeks, albeit for legitimate reasons, is held solely responsible for the inevitable decrease and even degradation in their social ties. Norwegian access rights are notably restrictive [21] and limited access rights have a particularly detrimental impact in the first weeks, months and years of life. [22] By April 2010, the first applicant ’ s contact rights had been reduced to four two-hour visits per year. In addition, reliance on Aune v. Norway is relevant only to a certain extent and should have been very clearly qualified in our view. In that case the child who was later the subject of adoption proceedings aged 12 years had been placed in care aged six months following serious physical and psychological abuse which had culminated in a brain haemorrhage. His parents, both drug users, continued to abuse drugs after his placement. His biological mother frequently failed to attend contact sessions and disappeared entirely for one year. In contrast, while there is no doubt that the first applicant neglected her child in the first weeks of its life, it is difficult not to see very fundamental differences between the factual matrix in Aune , where some of the legal principles applied by the majority in this case were developed, and the actions of the first applicant and her extended family since X was first removed from their care. [23]

(2) It is undisputed that the adoption put an end to the legal ties between the biological mother and the child and the access rights of both. It therefore seems extraordinary that the foster parents ’ willingness to contemplate contact “if the child so wished” is factored into the legal assessment given that this willingness had no legally binding force and that the child in question was aged three and a half years at the relevant time. Reference is made to the provision in Norwegian law for a form of open adoption but there is no discussion of the need for the formal consent of the adoptive parents to such an arrangement or their ability to withdraw it. Aune is once again relied on, this time to highlight a fundamental difference between the two cases – in Aune contact had been guaranteed and willingness proved. However, this difference is dismissed as not relevant.

(3) There is no doubt that when X was admitted to emergency care he was a vulnerable new-born child whose basic needs were not being cared for. However, at two months he is described in the report of the family care centre as functioning as a normal two-month old and as bearing “the mark of good psychosocial and cognitive development”. The reports before the domestic authorities highlight the difficulties created for the child by tense contact sessions. However, his special care needs are never explained. [24] In the Board ’ s decision of 8 December 2011 it is stated that X suffered “serious life-threatening neglect during the first three weeks of his life” and that he had been through a lot having “lived in the foster home for three years and not [knowing] his biological mother”. The former statement is not explained or necessarily supported by the evidence. [25] Once again, it is not our intention to call into question the authorities ’ decision to place the child in care and, crucially, the consequences for his care arrangements flowing from the passage of time. As the Court has repeatedly held, passage of time essentially means that the interest of a child not to have his or her de facto family situation changed may override the parent ’ s interest in reunification. However, the irreversible severing of legal ties is different. It requires exceptional circumstances and these appear to be assumed as reasonably existing in the instant case rather than being concretely demonstrated.

(4) Nowhere in the file does it emerge clearly that the domestic authorities considered the long-term effects on the child of the permanent and irreversible cutting of de facto and legal ties with his biological mother. [26] The Court has repeatedly held that severing such ties cuts a child off from its roots, which is a measure which can be justified only in exceptional circumstances. Regarding the preservation of such roots, it has in other circumstances held that domestic authorities could legitimately deprive a minor, against the latter ’ s will, of his filiation with the person who he considered to be his father and with whom he had a strong emotional bond, in order to recognise the minor ’ s filiation with his biological father as the child ’ s interests lay primarily in knowing the truth about his origins. According to the Court in that case – Mandet v. France – it was reasonable for the domestic authorities to determine that the child ’ s interests lay not where he perceived them but rather in ascertaining his real paternity. [27] Each Article 8 case must be assessed individually, in relation to its own facts and the crucial margin of the domestic authorities referred to above. However, the only thread of legal logic holding these cases together appears to be the margin itself, with the Court a bystander, by virtue of the principle of subsidiarity, to the disintegration of familial relationships and the destruction of roots depending on how that margin is exercised in any given case.

(5) As the Court has repeatedly stated, not only do the circumstances justifying the severing of all ties have to be exceptional, but the reasons justifying their existence have to be relevant and sufficient. In challenging the deprivation of parental responsibility and adoption, the first applicant set considerable store by the change in her personal circumstances since X was first born and taken into care and since her competence as a carer had first been assessed. She had married and had a second child, Y, and an investigation into her care of the latter had found no shortcomings. A third child was born after the domestic adoption proceedings had ended and her care for that child has not been questioned either. The advice of an expert who spoke in support of the first applicant ’ s care-giving, who had counselled her in relation to the trauma of losing her first child to placement and who argued in favour of the restoration of her rights was dismissed as based on outdated research. The evaluation of the municipality in which she now lives is passed over by the majority in silence. [28] In the individual assessment required and the balancing of the interests of the child and the biological parent, nowhere does the severing of X ’ s ties with his other sibling (and subsequently a second sibling) or his grandparents appear to feature. The domestic authorities held that the needs of the second child, Y, could not be confused with the unexplained special needs of X. The favourable change in the first applicant ’ s personal circumstances therefore had no bearing on the adoption assessment and X ’ s best interests in that regard. In Johansen , where the Court found no violation as regards placement but a violation of Article 8 as regards adoption, it held that the domestic authorities had provided relevant reasons for the impugned adoption decision but not sufficient ones. A failure to take into consideration the changed and better circumstances of the biological mother in that case appeared key in this regard. [29] In a recent Norwegian case, I.D. , which concerned access rights, the Court found the complaint of a biological mother to be manifestly ill-founded but emphasised that access rights could and should be kept under review: “[the mother] has the possibility for regular review of these measures where the authorities will need to take into account any changes and developments in the applicant ’ s and X ’ s circumstances , including eventual further improvements of the applicant ’ s care abilities or increased emotional robustness of X.” [30] In the instant case, the first applicant appealed to the High Court in relation both to the assessment of evidence and the failure to obtain an expert witness concerning her and her husband ’ s ability to provide adequate care. Despite the rejection by the City Court of the expert evidence in favour of the first applicant, the High Court refused leave to appeal and held that the first applicant had not explained why it was necessary to appoint an expert before the High Court (see § 63 of the majority judgment). There would appear to be a contradiction between supposing the mother ’ s care-giving problems were of a fundamental nature and her potential for change limited, as argued by the respondent Government and the domestic authorities (§ 128 of the majority judgment and the paragraphs referred to therein), and the absence of any care arrangements as regards her subsequent children. [31] To sever the child ’ s ties with his mother and siblings the family had to be proved to be particularly unfit; yet there is evidence that, over time, it had proved itself not to be. [32]

(6) Furthermore, it is difficult to avoid the impression that assessment of the first applicant ’ s competence and conduct was influenced throughout by the very fact of her conflict with the child welfare authorities and foster mother. The City Court highlighted the f act that “nothing had emerged (... ) to indicate that the first applicant had developed a more positive attitude to the child welfare authorities or to the foster mother”. [33] However, conflict of this nature is hardly exceptional. [34] Since both the foster parents and domestic authorities were deemed to be acting in the best interests of the child, by challenging or being in conflict with them the first applicant was perceived to be doing the opposite. [35] The mother ’ s behaviour in relation to the authorities and her express determination to fight until her child was returned were factors which played against her (see § 127 of the majority judgment). It is noteworthy that neither of these factors are counterbalanced in the majority judgment by her repeated indications that, if her parental responsibility were preserved, access rights increased or the child returned, she would work with the child welfare authorities. [36] In the instant case, the authority charged with balancing the different interests involved was itself in conflict with one of the persons whose interests were being balanced. This is a very delicate situation.

(7) Finally, the conflict which created tension during contact visits was between the first applicant, her extended family, and the foster mother and child welfare authorities. No explanation is given why arrangements were not attempted which removed the child and allowed visits to proceed outside the sphere of tension created when the biological and foster mothers met. [37] In other cases in this field the Court has pointed to the need to give due consideration to possible alternatives and to safeguard parental rights while finding a means to allow children to regain their emotional balance. [38] In addition, while the Court has recognised the difficult position domestic authorities find themselves in when faced with strained (parental) relationships; it has held that such a lack of cooperation does not exempt the authorities from their positive obligations under Article 8. [39]

V. The need to respect existing jurisprudential standards

25 . We have attempted to explain why, factually and legally, we do not share the assessment of our colleagues in the circumstances of the present case, conscious throughout of the limits rightfully dictated by subsidiarity and the margin of appreciation.

26 . We are acutely aware not only of the direct contact enjoyed by the authorities with the persons affected by their decisions but also of their expertise in questions relating to child placement, access rights and adoption. This case demonstrates that there is a marked preference in Norway for adoption rather than long-term foster care and that the former is considered in the best interests of the child. Policy decisions of that nature and the assessments which underpin them are legitimate and fall within the margin of appreciation of the domestic authorities.

27 . However, a review of the Court ’ s case-law demonstrates the existence of legal standards – the need to establish particularly weighty reasons, to limit the breaking of de facto and de jure ties to exceptional circumstances and to apply stricter scrutiny when the latter occurs. They are standards with legal meaning and which should, in our view, have legal consequences. The majority judgment takes cognizance of these legal standards in an abstract manner but only partly applies them to the circumstances of the present case.

28 . The general principles outlined in Section III reflect the case-law as it stands and clearly point to procedural and substantive requirements which must be met in a case like this. Once it comes to the concrete application of those principles to the circumstances of the individual case, it would appear that the focus becomes almost exclusively procedural. However, an excessive focus on procedures risks rendering banal what are far-reaching intrusions in family and private life. In addition, the Court ’ s general principles when read in the abstract risk providing false hopes of reunification which, as this case demonstrates, are unlikely to be fulfilled once a child has been taken into care, access rights have been significantly limited, time has passed and domestic proceedings formally meet Article 8 procedural standards.

[1] T he complaints of the biological mother (the first applicant) and the child ( the second applicant, X) who was the subject first of placement and then adoption proceedings were deemed admissible. The complaints by the first applicants’ second child and her parents were deemed inadmissible (§§ 78 -94 of the majority judgment). The first applicant’s third child was not born until after the end of the adoption proceedings.

[2] See, for example, Gnahoré v. France , no. 40031/98, § 54, CEDH 2000-IX; Sahin c. Allemagne [GC], no 30943/96, § 65, CEDH 2003-VIII and the authorities cited in Section III below. Those authorities make clear that the margin narrows and the Court’s scrutiny is strict as regards restriction or deprivation of access rights.

[3] See, for example, T.P. and K.M. v. the United Kingdom [ GC ] , no. 289 45/95, § 70 , ECHR 2001-V and the authorities cited in Section III below.

[4] See Görgülü v. Germany , no. 74969/01, 26 February 2004, § 48; Gnahoré v. France , cited above , § 59, ECHR 2000-IX, or Johansen v. Norway , judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, § 78.

[5] Görgülü , cited above, § 48 (emphasis added).

[6] It was not disputed at domestic level or before the Court that the first applicant had considerable medical difficulties to surmount as a child, that these difficulties had had consequences for her social and psychological development and that her feelings about the pregnancy were conflicted.

[7] 1.5 hour weekly sessions were reduced to six two-hour sessions per year and then further reduced to four two-hour sessions per year. For a brief period after the City Court had upheld the first applicant’s claim, they had been extended to 3 hours 3 times weekly.

[8] It is not disputed that, formally, the procedure before the Board (composition of the board, holding of an oral hearing, presence of the first applicant who was legally represented, number of witnesses heard - § 40 of the majority judgment) and the City Court (§ 47 of the majority judgment) complied with the implicit procedural requirements of Article 8 of the Convention (§§ 111 – 112 of the majority judgment). See further below, however, on the assessment of evidence.

[9] See, in particular, §§ 102 – 110 of the majority judgment.

[10] See note 2 above, Görgülü , cited above, § 50 or Anayo v. Germany , no. 20578/07, 21 December 2010, § 66.

[11] See, for example, K and T. v. Finland , no. 25702/94, 12 July 2001, §§ 154-155; Görgülü , cited above, § 42, or Johansen , cited above, § 64 . See also §§ 104 and 110 of the majority judgment.

[12] See, for example, Y.C. v. the United Kingdom , no. 4547/10, 13 March 2012, § 138, and §§ 102, 107 and 110 of the majority judgment which refer to the need for relevant and sufficient reasons.

[13] See Scozzari and Giunta v. Italy , no. 39221/98, 13 July 2000, § 169 and K. and T. v. Finland , cited above, § 178. On the best interests of the child , see further below.

[14] K. and T. v . Finland , cited above, § 155.

[15] See Y.C ., cited above, § 136.

[16] See, variously, Johansen , cited above, § 78; Gnahoré , cited above, § 59, or Pontes v. Portugal , no. 19554/09, 10 April 2012, § 79.

[17] Görgülü , cited above, § 41 and § 43.

[18] See also Johansen , cited above, § 79. Indeed the majority judgment appears later to recognise this and relies on the legitimacy of placement in care as a basis for suggesting adoption could have legitimately been considered by the domestic authorities as preferable to continued, long-term foster care (§§ 121 and 123).

[19] See, inter alia, K. and T. v. Finland , cited above, § 178.

[20] In Aune v. Norway , no. 52502/07, 28 October 2010, §§ 76-78, where the Court referred to the domestic courts’ findings regarding the “ great, almost absolute, certainty ” that the openness of the adoptive parents to contact would continue . T hat openness , which had already been established, meant that the biological mother was therefore not prevented from maintaining a relationship with her child.

[21] See, for example, I.D. v. Norway ( dec. ), 4 April 2017 (visiting rights of 4 hours, 3 times a year); T.S. and J.J. v. Norway ( dec. ), no. 15633/15, § 5, 11 October 2016 (visiting rights of 4 hours, twice a year, albeit for a grandmother but one who had to travel from Poland to visit the child of her deceased daughter), or J.M.N. and C.H. v. Norway ( dec. ), 11 October 2016 (visiting rights of 2 hours, 3 times a year).

[22] See, in this regard, Görgülü , cited above, §§ 46 and 48; Pontes , cited above, § 80; Ignaccolo-Zenide v. Romania , no. 31679/96, § 102, CEDH 2000-I, or Maire v. Portugal , no 48206/99, § 74, CEDH 2003-VI.

[23] See the facts described in Section II above and §§ 7 – 18 of the majority judgment.

[24] Contrast with the clear description of the vulnerabilty of the adoptive child in Aune , cited above; the special needs of the child placed in care in T.S. and J.J. , cited above, § 5, or the vulnerability and special needs of both parents and child in J.M.N. and C.H ., cited above, §§ 3-10.

[25] Contrast the statements of the Board, reproduced at § 41 of the majority judgment, with the reports from the family centre , § 10, the child psychiatry clinic, § 12 and the testimony of the family consultant, § 25.

[26] See the assessment of the Court in Görgülü , cited above, §46: “that court does not appear to have examined whether it would be viable to unify [X] and the applicant under circumstances that would minimise the strain put on [X]. Instead, the Court of Appeal apparently only focussed on the imminent effects which a separation from his foster parents would have on the child, but failed to consider the long-term effects which a permanent separation from his natural father might have on [X]. The solution envisaged by the District Court, namely to increase and facilitate contacts between the applicant and [X], who would at an initial stage continue to live with his foster family, was seemingly not taken into consideration. The Court recalls in this respect that the possibilities of reunification will be progressively diminished and eventually destroyed if the biological father and the child are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur”. See also Anayo , cited above, § 71.

[27] Mandet v. France , no. 30955/12, 14 January 2016, §§ 56-57.

[28] See §§ 62-63 of the majority judgment.

[29] See Johansen , cited above, §§ 83-84 and also Pontes , cited above, § 96 for the need to reconsider changed family circumstances.

[30] See I.D. , cited above, § 65 (emphasis added).

[31] See similarly Pontes , cited above, § 96 for a contradictory assessment of a family situation.

[32] See Görgülü , cited above, § 48 and other authorities.

[33] See § 51 of the majority judgment.

[34] The fact that this conflict is unexceptional is also reflected in the fact that the first applicant can introduce a complaint on behalf of her biological child before a Court whose judgment confirms the ending of their social and legal relationship. As § 81 of the majority judgment recognises in the context of admissibility, citing Scozzari and Giunta , “minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention.”

[35] For a depiction of similar opposing interests which also proved fatal to a biological parent’s claim (although the circumstances of the case were very different) see R. and H. v. the United Kingdom , no. 35348/06, 31 May 2011, § 88: “ once the domestic courts had concluded that adoption was in N’s best interests, they were also entitled to conclude that any reasonable parent who paid regard to their child’s welfare would have consented to the adoption ” .

[36] See, inter alia , the first applicant’s submissions to the City Court, § 45 of the majority judgment.

[37] See also the arguments of the applicant in Johansen , cited above, § 74.

[38] See, for example, Vojnity v. Hungary , no. 29617/07, 12 February 2013, §§ 42-43, although the case concerned a complaint relating to Article 14 and 8 combined.

[39] See, for example, Kacper Nowakowski v. Poland , no. 32407/13, 10 January 2017, § 89.