DISSENTING OPINION OF JUDGE HÃœSEYNOV

1. I respectfully disagree with the majority’s finding that there has been no violation of Article 8 of the Convention. In my view, the Austrian authorities did not comply with their positive obligations under that provision, as interpreted in the light of Article 9 of the Convention, since they failed to take into account the linguistic and cultural background of the applicants at a time when their two youngest children (R. – born in November 2007 and M. – July 2010) had been kept in foster care since October 2010.

2. At the outset, I note with regret that the applicants’ complaint concerning their restricted visiting rights in respect of their children was declared inadmissible at the time it was communicated to the parties. As a result, the Chamber was unable to examine that important complaint. It is true that the Chamber considered it appropriate to regard those allegations as part of the context (see paragraph 105 of the judgment) and referred to them when examining the applicants’ other complaints. Nevertheless, the majority, in my view, failed to have due regard to the impact of the limited contact between the applicants and their two youngest children on the maintenance of the children’s religious, linguistic and cultural identity.

3. As it appears from the case file, after R. and M. had been placed with emergency foster families and later with ordinary foster parents, the applicants were allowed to see them for one hour per month. Between 2012 and 2013 visiting rights were suspended for about one year and eight months in respect of R. and four months in respect of M. Since 2016 the applicants have been allowed to see M. only four times a year, for one-hour-visits, and R. twice a year, for similar one-hour sessions. The majority admit that “the visiting scheme was very limited ... and ... the applicants must have suffered as a result of seeing their children so little” (see paragraph 129 of the judgment).

4. That said, I do take note of the fact that the Austrian child welfare authorities and courts provided reasons (relating, in particular, to the care ‑ giving abilities of the natural parents, their behaviour during the visits and the needs of the children) for the subsequent restriction of the applicants’ visiting rights as well as for the decision not to return the two youngest children to them. The crux of my dissent is not that aspect of the present application. Indeed, there may have been reasons, for a certain period, to impose limitations on contact between the applicants and the children, and to refuse to return the children to the applicants’ care. The key point I wish to make is that the parents’ behaviour during the visits could not, as a matter of principle, justify the failure by the national authorities to take the requisite measures to preserve the children’s cultural, linguistic and religious identity.

5. In a recent Grand Chamber judgment ( Abdi Ibrahim v. Norway [GC], no. 15379/16, 10 December 2021), the Court clarified the scope of the positive obligations of Contracting Parties to the Convention as regards maintaining the religious, linguistic and cultural identity of children in care. Of particular note is paragraph 161 of that judgment, which I set out in full:

6. It follows that the obligation incumbent on States in similar childcare cases is an obligation of means, not of result. States are not obliged, when placing a child in foster care, to find a family which corresponds to the biological parents’ cultural and religious background. Appropriate means can and should be employed by domestic authorities, throughout the process, to ensure respect for the rights of the biological parents guaranteed by Article 8 of the Convention as interpreted in the light of Article 9 of the Convention. The authorities should have due regard to the biological parents’ wishes in respect of the care and education of their children and – as long as this is considered to be in the best interests of the child – should take into consideration the importance of the children’s continued contact with their biological parents, their common cultural, linguistic and religious background and the prevention of the development of communication barriers, in order to facilitate the children’s reunification with the parents as soon as feasible. That said, I am of the opinion that what essentially matters is whether the contact afforded is sufficiently meaningful and effective to safeguard, strengthen and develop family ties and avoid an estrangement of the children from their culture and religion.

7. By the same token, I believe that respect for family life, as interpreted in the light of Article 9 of the Convention, should not be limited to facilitating contact but should encompass other positive action, beyond that, to prevent children from being cut off from their cultural and religious roots, especially at a very young age. The Court’s task in such cases is, in my view, to ascertain whether the competent national authorities have taken all appropriate measures which are reasonable in the circumstances, and with paramount importance being attached to the best interests of the child, in order to prevent his or her linguistic, cultural or religious estrangement.

8. Now I turn to the question of whether and how the Austrian authorities complied with the general principles briefly outlined above.

9. I find it difficult to discern from the case file that the Austrian authorities “complied with their positive obligations and provided for regular contact between the applicants and their children and for support through well prepared foster parents and social workers, taking into account the applicants’ interest in maintaining their cultural, linguistic and religious bonds with R. and M.” (see paragraph 161 of the judgment). First, as I noted above, contact between the applicants and their two youngest children was very limited; second, no evidence was submitted to the Court that the foster parents and social workers had genuinely taken into account “the applicants’ interest in maintaining their cultural, linguistic and religious bonds with R. and M.”.

10. The majority state that the two youngest children were placed with foster families “who were particularly open to other cultures and religions” (see paragraph 147 of the judgment). This conclusion, which is in fact based on an assessment made by the RAP, a special department of the YWO for adopted and foster children (see paragraph 31 of the judgment), appears to be in contradiction with the fact that the Leopoldstadt District Court at least twice reminded R.’s foster mother that she had to respect the fact that R. was Muslim (see paragraphs 18 and 20 of the judgment). In this regard, I am not convinced that the incident involving R.’s wearing of a necklace with a cross (see paragraph 15 of the judgment) can simply be overlooked.

11. That said, the principal focus below will be on the alleged lack of linguistic ties between the applicants and their two youngest children.

12. It was undisputed that the language spoken in the applicants’ household was Turkish and that the applicants understandably preferred to speak Turkish to their children during the visits (see paragraph 56 of the judgment). Moreover, in their appeal of 22 January 2013, at a time when the children were about three and five years of age, the applicants did raise their concerns about the children’s lack of exposure to the Turkish language and culture (see paragraph 46 of the judgment).

13. The best interests of a child who has been taken into care at a very young age require that the child learn his or her mother tongue as soon as possible and appropriate, in order to facilitate reunification with his or her natural family. According to information submitted by the Government, Turkish language courses are available free of charge to children (see paragraphs 94 and 142 of the judgment). However, no information was submitted to the Court from which it could be concluded that the foster parents or the applicants had been made aware of such courses. It should be noted that it is incumbent on the authorities to inform the foster parents of the possibility of language courses and other opportunities to use a language, and to provide them with guidance in this respect. Although the Vienna Youth Welfare Office (YWO) paid attention to the need for the foster parents to speak with the children about their cultural roots and encourage them to take an interest in them (see paragraph 140 of the judgment), there is no indication that the foster parents received guidance of the sort to which I refer. One can accept that in certain cases the best interests of a child may militate against teaching an additional language, for example if an expert finds the child’s psychological state too fragile or his or her linguistic development already challenged. In the present case, however, the domestic courts do not seem to have examined R. and M.’s capacity to learn their native language. Consequently, on the basis of the material before them the domestic courts had no reason to consider that it was not in R. and M.’s best interests to learn Turkish.

14. In its decision dated 14 April 2014 the Leopoldstadt District Court stated that M. did not understand his mother when she was talking to him in Turkish and that one of the three oldest daughters acted as an interpreter (see paragraph 56 of the judgment). One should not lose sight of the difficulties which member States would quite understandably face if they were expected to organise visits in all parents’ and children’s native languages. However, in the present case, a Turkish-speaking therapist was made available to attend the visits with R. from April 2014 (see paragraph 22 of the judgment). That said, no attempts were made to find a suitable Turkish-speaking person to attend the visits and facilitate communication between the parents and the children at an earlier stage and no explanations were given in that respect. Instead, the Government submitted that the children could learn Turkish if they became interested in doing so at a later stage (see paragraphs 94 and 142 of the judgment), which means in turn that the authorities apparently never envisaged on their own initiative that R. and M. should be actively exposed to their native language.

15. Considering that R. and M. did not have the opportunity to learn their mother tongue either while in the care of their foster parents or during the limited visiting time, I am not convinced that sufficient alternative measures were taken to facilitate the maintenance of the linguistic ties between the applicants and their children at a time when it was not yet clear whether the children would return to their parents’ care.

16. The domestic courts apparently realised that there existed a language barrier between the applicants and their two youngest children (see paragraphs 40 and 56 of the judgment) but did not envisage any measures to remedy the situation.

17. I am not convinced that the visits put in place without any additional measures specifically related to language abilities were sufficient to encourage R. and M.’s command of the native language of their biological parents. Because of this linguistic estrangement, the authorities failed to facilitate meaningful contact and reunification.

18. In my view the foregoing considerations, relating specifically to the failure of the Austrian authorities to put in place requisite measures to secure the maintenance of linguistic ties between the applicants and their two youngest children and prevent the children’s linguistic and cultural estrangement (language being a fundamental aspect of cultural identity), provide a sufficient basis on which to conclude that there has been a violation of the State’s positive obligations under Article 8 of the Convention.