DISSENTING OPINION OF JUDGE POWER-FORDE

1. I am unable to join the majority in finding no violation of Article 8 of the Convention in this case. Child care proceedings are complex and a wide margin is granted to the domestic authorities in taking a child into public care. However, this Court cannot abandon its supervisory role, particularly where a serious and permanent interference with the right to respect for family life has occurred. Once admitted into public care, a stricter scrutiny is called for in respect of any further limitations, such as, restrictions on parental rights of access.

2 . I have two difficulties with this case. The first pertains to the speed with and extent to which parental access to the children was reduced which, for me, raises a serious question as to proportionality; the second relates to the failure on the part of the authorities to discharge their positive duty to take measures to facilitate family reunification (see X v. Croatia , no. 11223/04, 17 July 2008; K.A. v. Finland , no. 27751/95, 14 January 2003 ; and R. v. Finland , no. 34141/96, § 89, 30 May 2006).

3 . During a difficult period of crisis in her life, the applicant, a vulnerable and concerned mother, telephoned the social services in May 2005 to seek help in coping with her three young children—then aged 6, 4 and 3 years, respectively. That she took the initiative in protecting her children from her own temporary inability to care for them is an important factor in this case. There was no history of criminal conduct, substance abuse or sexual abuse but the children were, clearly, neglected and in need of immediate attention. Correctly, in my view, the Swedish authorities responded and sought a temporary care order.

4 . What I find disturbing in this case is that within some 20 weeks of that initial call for help being made, a decision was taken by the social services regarding long term placement of the children and a permanent care order was sought. I am aware that the complaint concerning the making of that order has previously been declared inadmissible but the complaint concerning the contact restrictions which flowed therefrom is not. After the permanent order was granted, the entire family was broken up. Within seven months of that initial call for help, the three children were separated and sent to live in different homes. Undoubtedly distressed, the applicant went to live with her sister but was prepared to travel over 1,000 kilometres every month in order to see her children. Indeed, she was willing to do so more frequently but her appeals for increased access were rejected (§ § 21 and 22 of the judgment ).

5 . To split up a family is an interference of a very serious nature ( X v. Croatia , cited above, and R. and H. v. the United Kingdom , no. 35348/06 , 31 May 2011) and should only be applied in exceptional circumstances. That a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit is a ‘ guiding principle ’ in this Court ’ s case law under Article 8. Any measures implementing it should be consistent with the ultimate aim of reuniting the natural parent and the child (see Olsson v. Sweden (no. 1) , 24 March 1988, § 81, Series A no. 130, and R. v. Finland , cited above, § 89).

6 . In K.A. v Finland ( cited above , § 138) the Court noted that “ the possibilities of reunification may be progressively diminished and eventually destroyed if the biological parents 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 ” . The speed with which the decision regarding long-term placement was made and the stringent restriction on access that flowed therefrom is a strong indicator that the possibility of reunification was never, seriously, considered let alone pursued. On any assessment, there appears to have been a manifest prematurity in deciding upon the future of this family. The restrictions imposed at such an early stage in the proceedings cannot but have significantly hindered any possibility of reunification and cannot have been consistent with what the Court ’ s case ‑ law identifies as the ‘ ultimate aim ’ of care proceedings.

7 . Rather than exploring ways of assisting and supporting the applicant to parent and care for her children, the authorities ’ principal objective, from the outset, appears to have been the long term placement of the children and the maintenance of the restrictions imposed. This, they considered, to be in the children ’ s best interests having regard to their initial state of neglect and the obvious distress which seeing their mother provoked. However , one cannot but question whether it can ever be i n a child ’ s best interests to have its established relationship with its biological mother ruptured so suddenly and contact with her reduced so radically within such a short period of time , particularly, in circumstances where the main problem in the family home was one of neglect – as distinct from serious violence or abuse . By bringing about such far-reaching and radical changes in the lives of three young children which saw them , suddenly, deprived of their mother ’ s care – (however temporarily inadequate that may have been) – the authorities cannot but have contributed to the emotional and psychological distress symptoms displayed by them whenever they met with their mother. Ironically, it was these very stress symptoms which w ere then relied upon by the authorities in support of their applications for the maintenance of such ongoing restrictions.

8 . In accepting such grounds as the basis for maintaining severely limited parental access, the domestic courts appear not to have considered or assessed the social council ’ s own contribution to the children ’ s traumatic reaction upon seeing their mother. Furthermore, at no stage in the proceedings did the domestic courts hear the children themselves either directly or by way of video link. Whilst the Court of Appeal in 2008 directed that their point of view be obtained, there is a manifest want of independence in the manner in which this ‘ evidence ’ was ascertained – the children being interviewed by only one of the parties to the proceedings (the council), in a non-neutral environment and in the presence of their substitute carers. The potential for a conflicted emotional response within the children (then aged 9, 7 and 6) was evident and yet no measures were taken to facilitate a more independent expert assessment of their feelings and wishes.

9 . Furthermore, the domestic courts appear to have given little weight to the fact that after the period of personal crisis had ended, the applicant made a good recovery , found employment and stabilised her life situation. She complied, fully , with a request by the social council to undergo neuropsychological assessment. Despite the fact that the result of this assessment stressed that such impairment of her capabilities as existed ‘ could hardly be sufficient to disqualify her as a parent ’ – there has been no increase in parental access. She currently sees her children for just 16 hours per year (§ 32 of the judgment ).

10 . As in the case of R. v. Finland (cited above), I find that the picture which transpires from the facts of this case is one of ‘ a determination on the part of the social authorities not to consider reunification ’ of the applicant with her children as a serious option, instead firmly proceeding from a presumption (reached with significant speed) that the children would be placed in long-term foster care with severely restricted parental access. It is clear that when the applicant first contacted the social services, this family was in need of care and support . However, once they became involved, I cannot discern any serious and sustained effort on their part directed towards facilitating a possible family reunification, such as, could reasonably be expected for the purposes of Article 8 § 2 of the Convention.

[1] A family home ( familjehem ) is responsible for providing the daily care of the child. However the primary responsibility for the child lies with the social authorities and important decisions concerning the child are made jointly by the social authorities, the biological parents and the family home parents.