PARTLY DISSENTING OPINION OF JUDGE HÃœSEYNOV

1. I agree with both decisions concerning the complaints under Article 2 of Protocol No. 1, but regret that I am unable to agree with the majority’s finding that there has been no violation of Article 8 as regards the temporary suspension of the applicants’ parental authority and the temporary placement of the applicant’s son in public care. For the reasons set out below, I consider that Article 8 of the Convention has been violated in the present case.

2. The impugned measures against the applicant were triggered by an incident which occurred on 25 February 2013. On that night the applicant and her son (X) had a fight, after which X ran out of the home in his pyjamas and slippers. He was picked up by the police on the street and taken to a police station in city B. After that he was taken to a children’s hospital in another city, where no danger to his health was detected. X asked to be taken home, and on receiving a negative answer attempted to throw a cup of tea in the police officer’s face. Following that, he was taken to the psychiatric unit of that hospital. That decision appears to have been taken in response to the attitude adopted by X, who expressed exasperation at not being taken home (cf. O.G. v. Latvia (dec.), no. 6752/13, § 29, 30 June 2015, in which an adult was taken to a psychiatric hospital following a physical altercation endangering the public). There is no information in the case material that an in-depth examination was carried out to establish that X’s placement in the psychiatric unit was in his best interests or that his state of health necessitated such placement (see paragraph 13 of the judgment).

3. It should be noted that the criminal proceedings which had been instituted against the applicant on account of X’s allegations that she had been physically violent to him on the night of 25 February 2013, were subsequently terminated on account of the absence of a criminal act ( actus reus ). It was concluded that X had lied in his initial account of events (see paragraph 38 of the judgment).

4. The measures taken by the domestic authorities vis-à-vis the applicant on the day following the incident of 25 February 2013 were rather harsh: the applicant’s parental authority was suspended, and two weeks later her contact rights with her son were completely removed. No time-limit was set on the suspension of the applicant’s parental authority, even though she risked having that authority completely removed if it was not restored within one year. As a result of those measures the applicant’s son, who had lived with the applicant for most of his life, was taken into public care and – within a period of two weeks – was deprived of any contact with his mother and – after a further period of one month – with his remaining closest relatives.

5. Without underestimating the difficulties faced by the authorities in finding the best response to the urgent situation in the wake of the above-mentioned incident, it would not appear that sufficient consideration was given to the possibility of attempting, as a first step, measures that would not completely sever contact between the applicant and her son. With regard to the decision-making process leading to the suspension of the applicant’s parental authority on 26 February 2013, one cannot discern from the case material that the domestic authorities provided adequate supportive measures. On the one hand, the applicant and her child had been monitored by the childcare and other social welfare authorities since at least 2008. On the other hand, she was not warned about the possible consequences of her son’s disruptive behaviour if she was unable to cope with it without specialist help. Although the domestic authorities did take some steps to address the situation in the years preceding the incident of 25 February 2013, it appears that following every incident involving X, his removal from the family was immediately considered and no alternative solutions appear to have been sought (see paragraphs 6-10 of the judgment). More targeted offers of social rehabilitation, assistance by social services and various referrals for further consultations and meetings were only offered after the event (see paragraphs 19, 21, 24, 27, 42-44 of the judgment). No specific help appears to have been envisaged prior to the suspension of the applicant’s parental authority. The Court has emphasised that the authorities’ role in the social welfare field is precisely to help people in difficulty and that in the case of vulnerable people, the authorities must show particular vigilance and afford increased protection (see Y.I. v. Russia , no. 68868/14, § 87, 25 February 2020, and S.S. v. Slovenia , no. 40938/16, § 84, 30 October 2018).

6. The case material does not contain sufficient information to conclude that the applicant or other family members were allowed contact with X during his time in the psychiatric unit; it appears that they were prevented from seeing him on 26 February 2013 (see paragraph 14 of the judgment). X stayed in that unit for eight days, during which time he ran away but was brought back by the police. To further reinforce his separation from the family, X was moved to the children’s unit of a closed psychiatric hospital, where he stayed another six days before being moved to a family crisis centre (see paragraphs 14 and 18 of the judgment). While an in-depth examination was recommended at the end of his stay in the children’s hospital, there was no suggestion that it had to be carried out in any particular hospital, let alone a psychiatric one, (see paragraph 42 of the judgment). Following his stay in the psychiatric hospital, the conclusion was reached that treatment was unnecessary (see paragraph 44 of the judgment).

7. It is evident – and this is also acknowledged by the majority – that the placement of X, who was a vulnerable teenage boy, in several psychiatric institutions cannot be considered conducive to his well-being or in his best interests in the absence of a psychiatric illness or any indication that his state of health necessitated particular treatment. The case material reveals a particularly worrying trend: it appears that when the domestic authorities were faced with X’s violent or disruptive attitude – when he vehemently protested at being taken away from home or placed in yet another childcare institution – they opted for placement in the psychiatric unit or psychiatric hospital (see paragraphs 6, 13, 23 and 72 in fine of the judgment). Thus, the domestic authorities do not appear to have considered the possibility of resorting to less restrictive and more appropriate measures.

8. As a result of the domestic authorities’ decisions, the applicant’s son found himself in an unfamiliar setting in various psychiatric and childcare institutions for nearly three months. In this regard, the conclusions of the Ombudsperson concerning the fundamental deficiencies in Latvian children’s homes are quite enlightening (see paragraphs 72-73 of the judgment). Many of the issues highlighted by the Ombudsperson also manifested themselves during the time X spent in childcare institutions, including recourse to psychiatric hospitals in order to handle behavioural problems; placement in distant children’s homes, thereby disrupting all existing family and social contact; and failure to address individual behavioural issues. It should be noted that a decision to remove a vulnerable child from his or her family and place him or her in public care cannot be made without an assessment of whether such action would actually serve the child’s interests and improve his or her situation. This is particularly true in a case such as the present one, where the problems appear to emanate from parenting and cooperation issues, rather than abuse of the child (compare R.M.S. v. Spain , no. 28775/12, § 84, 18 June 2013).

9. Despite the Government’s assertion that alternatives to the impugned decisions had been considered, the decisions of the guardianship institutions and administrative courts comprised no indication to that effect. The case file does not show that any steps had been taken to place X with a guardian or a foster family. Even though X had protracted behavioural difficulties, it had not been established that such placement was excluded by virtue of his state of health. It appears that X was not offered alternative out-of-family care arrangements because they were not available in Latvia at the material time (see paragraph 72 of the judgment).

10. Furthermore, there is no indication that measures not involving suspension of the applicant’s parental authority and X’s removal from his family, such as leaving him in the applicant’s care but providing adequate help to cope with his behavioural difficulties, were ever explored. The Court has emphasised that every Contracting State has an obligation to equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it under Article 8 of the Convention (see R.M.S. v. Spain , cited above, § 72).

11. While at the initial stages of the proceedings there were concerns about abuse on the part of the applicant, the national authorities and courts appear to have taken a rather mechanical approach, maintaining harsh measures without due regard to the details. In particular, the psychological reports did not conclude that X had suffered emotional or physical abuse from the applicant, and instead found that he showed indications of having experienced abuse, without establishing its origins (see paragraphs 42-46 of the judgment). The reports and other materials in the case file contained indications that X might have experienced abuse at the hands of others. Accordingly, it is not possible to conclude that the causes of the child’s behavioural issues were properly identified by the relevant authorities. The Court has already held that the continued absence of a judicial finding of guilt where a parent has been suspected of having abused a child increases the onus on the social authorities and the courts to produce sufficient justification for maintaining the care measure (see K.A. v. Finland , no. 27751/95, § 119, 14 January 2003, and Haddad v. Spain , no. 16572/17, § 63, 18 June 2019). In the present case, which involves unconfirmed suspicions of abuse , the emphasis in the authorities’ reasoning gradually shifted towards the applicant’s parenting errors and her failure to cooperate with the domestic authorities.

12. The Court has held that the absence of skills and experience in rearing children, whatever reasons there might be cannot, in itself, be regarded as legitimate grounds for restricting parental authority or keeping a child in public care (see Kocherov and Sergeyeva v. Russia , no. 16899/13, § 106, 29 March 2016). Furthermore, 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 of such an interference (see K. and T. v. Finland [GC], no. 25702/94, § 173, ECHR 2001 ‑ VII; Kutzner v. Germany , no. 46544/99, § 69, ECHR 2002 ‑ I; and Haase v. Germany , no. 11057/02, § 95, ECHR 2004 ‑ III (extracts)). In the present case, the applicant was criticised for not having sufficient parenting skills to deal with a vulnerable teenage boy who had most likely suffered some form of abuse and had behavioural issues and personality disorders.

13. I agree with the majority that in such circumstances the parent’s cooperation is particularly important to ensure the well-being of the child, and, therefore, I acknowledge that the applicant’s action of taking X away from the hospital, flagrantly disregarding the decision taken to suspend her parental authority, was clearly an unlawful act which complicated the task of the national authorities. Even if the applicant assumed that X’s health and well-being was at risk in the children’s home, there can be no justification for her decision to take matters into her own hands by disregarding the law and taking X away from the hospital. That being said, it can hardly be established that the applicant took any active steps to hide X from the authorities. Although she had changed her registered address in the past (see paragraphs 8 and 10 of the judgment), it appears that she continued to reside together with X in her usual place of residence (see paragraph 23 of the judgment).

14. In my view, in the circumstances of the present case the domestic authorities bear some degree of responsibility for not having enforced the decision to suspend the applicant’s parental authority following the events of 16 May 2013. While the search for the applicant’s son allegedly started on the next day, it took more than four months for the police to establish that the applicant was living with her child at her usual place of residence (see paragraph 23 of the judgment), despite the obvious fact that rapidity is crucial in enforcing child care measures. A similar chain of events as those that had taken place following the incident of 25 February 2013 unfolded: X was placed in the psychiatric unit of the children’s hospital for one week, then taken to the social rehabilitation centre, where he stayed only a couple of days as he managed to run away again. Subsequently, no more steps appear to have been taken to place the applicant’s son in public care pursuant to the decision to suspend the applicant’s parental authority.

15. Furthermore, the steps taken by the police to ensure the child’s placement with his father, following the decision to grant him sole parental custody, appear to have been highly ineffective – X managed to run away from the police or his father on three occasions in April, May and July 2014 (see paragraph 26 of the judgment). No more steps appear to have been taken to ensure compliance with the decision to suspend the applicant’s parental authority until it was eventually restored on 4 November 2014.

16. I admit that the realities of policing and the need to prioritise the use of public resources may lead to some delays. However, the delays in the present case were significant and, as a whole, the domestic authorities’ attitude appeared contradictory and erratic: the applicant’s parental authority was suspended and her applications for its restoration were rejected on the grounds that living with her would be harmful to the child, whereas at the same time the authorities, being aware that X was living with the applicant, allowed this situation to persist for about a year and a half.

17. It is also worth noting that the criminal proceedings concerning the applicant’s non-compliance with the decisions concerning her parental authority and contact rights were terminated, as it was established that by hiding her son she had acted in his interests (see paragraphs 40 and 41 of the judgment).

18. In any event, the Court has held that a parent’s failure to cooperate is not a decisive factor, since it does not relieve the authorities of the duty to implement such measures as will be apt to enable the family link to be maintained (see Gnahoré v. France , no. 40031/98, § 63, ECHR 2000 ‑ IX). Even where the parent has shown an inappropriate and disrespectful attitude towards the authorities, the Court will seek to establish whether the national authorities have taken all the necessary and appropriate steps that could reasonably be expected of them to ensure that the child could lead a normal family life within his or her own family (see R.M.S. v. Spain , cited above, §§ 75 and 82). It should be noted that in cases of this type the child’s interests must come before all other considerations (see Y.C. v. the United Kingdom , no. 4547/10, § 138, 13 March 2012).

19. The parties disagree on whether the decisions of the domestic authorities were actually taken in the child’s interests and comprised an assessment of them. In my view, a careful review of the decisions of the guardianship institutions and administrative courts allows the Court to conclude that they were all primarily based on considerations of the applicant’s attitude and behaviour. It was expressly noted that it was up to the applicant to take the appropriate steps for her parental authority to be restored. The Government also submitted that the applicant, through her conduct, had delayed X’s return to the family, which would have been in his best interests. While the administrative and judicial authorities considered that remaining in the applicant’s care would not be in X’s interests, those decisions did not include any comprehensive analysis of more suitable solutions that would serve his interests and would allow for some adequately supervised contact with the applicant. Most importantly, they did not analyse whether the measures chosen by the childcare authorities were more conducive to the child’s development and interests than remaining in the applicant’s care. The first such comparative assessment was made by social services more than one-and-a-half years after the suspension of the applicant’s parental authority (see paragraphs 63-65 of the judgment).

20. The Court has already held that as children mature and, with the passage of time, become able to formulate their own opinions, the courts should give due weight to their views and feelings as well as to their right to respect for their private life (see N.Ts. and Others v. Georgia , no. 71776/12, § 72, 2 February 2016). In the present case, X was always very clear about his unwavering desire to live with the applicant. While the domestic authorities did address X’s opinion, little weight was given to it despite the fact that, during the initial period of suspension of parental authority, all the medical reports and expert assessments pointed to the child’s high dependence on his mother, heightened desire for emotional attachment and overriding wish to remain in his mother’s care. Moreover, the relationship between X and the applicant had been described as symbiotic and, as the situation progressed, X consistently continued to assert his desire to remain in his mother’s care, running away from the institutions in which he was placed on more than one occasion. Even if it was relevant to also take into account the child’s immaturity and influenceability at the beginning of the process, nevertheless the authorities failed to consider the question whether X’s persistent attitude should not lead to less weight being given to that aspect with the passage of time.

21. Furthermore, following X’s removal from the children’s home (see paragraph 18 of the judgment) no administrative or judicial decision assessed his reportedly negative experience in the childcare institutions (apart from the assessment made within the criminal proceedings; see paragraph 39 of the judgment) or took this into account when determining his best interests. Without speculating as to what happened during the time X spent in the children’s home, it should be borne in mind that he sought out his mother’s help in circumstances which he himself was no longer able to tolerate. It does not transpire that the authorities took his experience and perception into account when assessing what subsequent measures should be taken. It should also be emphasised that following X’s apprehension by the police after he had supposedly been in hiding (see paragraph 23 of the judgment), the expert’s recommendation was for him to stay in a stable, safe, calm and unchanging environment (see paragraph 49 of the judgment). This recommendation was not assessed with respect to the realities of the situation at hand and in the light of his wishes and conduct. Insufficient regard was paid to the particular circumstances of the case – the child was not only mature enough to formulate an opinion, but also capable of arranging his escape and ensuring that he lived with the caregiver of his choice.

22. Overall, while understanding that the domestic authorities had faced an unusual and complicated situation, in the light of the above-mentioned deficiencies one cannot conclude that they paid sufficient regard to the best interests of the child. Notwithstanding the domestic authorities’ margin of appreciation, the interference with the applicant’s family life was therefore not proportionate to the legitimate aim pursued, and accordingly, there was a violation of Article 8 of the Convention in this case.