Published on 10 July 2023

THIRD SECTION

Application no. 35789/22 Á.F.L. v. Iceland (anonymity has been granted) against Iceland lodged on 15 July 2022 communicated on 20 June 2023

SUBJECT MATTER OF THE CASE

The complaints concern depriving the applicant of custody of his daughter.

The applicant has been diagnosed with learning difficulties, attention deficit hyperactivity disorder and autistic spectrum disorder. In February 2019 he and his ex-girlfriend had a daughter. They had joint custody, but the mother took care of the girl for the most part. In the summer of 2019 the Child Protection Services (CPS) intervened following repeated reports about alleged neglect of the child and about the mother’s mental health issues. As a result of the intervention by the CPS, the applicant took over caring for the child as of October 2019. At first, the applicant and his daughter stayed in a specialised facility where he received help and instructions on how to care for her. At the end of January 2020, the applicant and his daughter moved into his home, at his mother’s house, where he continued to receive extensive support from the CPS. In July 2020, based on reports from support staff stating that the applicant’s daughter exhibited many signs of neglect, the CPS placed her into foster care for two months.

Two expert reports on the applicant’s parenting skills were prepared, in December 2019 and August 2020. Both concluded that he did not have the necessary competences to care for his daughter. The CPS subsequently petitioned the Reykjavik District Court that the applicant be deprived of custody. During the proceedings, a court-appointed expert assessed the applicant’s parenting skills, including his ability to benefit from treatment and support in light of his hitherto experience with the support provided and his right to support under Act No. 38/2018 on Services to Persons with Disabilities and Long-term Support Needs. The expert found that the applicant had a reduced capacity to acquire the skills needed to raise his daughter and that it was not justifiable, from the perspective of the welfare of the child, to continue the efforts of keeping them together.

On 15 September 2021, the Reykjavik District Court deprived the applicant of custody noting, inter alia, that the court knew of no realistic additional support measures, specially tailored to his situation, that would be available to him. The Court of Appeal ( Landsréttur ) upheld this judgment. The applicant’s leave to appeal to the Supreme Court was denied on 29 March 2022.

The applicant complains that his right to respect for his private and family life under Article 8 of the Convention was violated as the national authorities did not sufficiently investigate the availability of, or apply, appropriate measures to assist him in taking care of his daughter. Under Article 14 in conjunction with Article 8 the applicant complains of indirect discrimination as measures and assessments based on Act No. 76/2003 on Children and Act No. 80/2002 on Child Protection are tailored to situations involving non ‑ disabled parents. He also complains that he was denied reasonable accommodation.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see Strand Lobben and Others v. Norway [GC], no. 37283/13, §§ 210-213, 10 September 2019)? In particular, did the national authorities sufficiently investigate and apply appropriate measures to assist the applicant in taking care of his daughter (see Kacper Nowakowski v. Poland , no. 32407/13, §§ 93-94, 10 January 2017)?

2. Has the applicant suffered discrimination, contrary to Article 14 of the Convention read in conjunction with Article 8? In particular, did the State take reasonable measures of accommodation to enable the applicant to enjoy his rights equally to others (see, albeit in a different context, Çam v. Turkey , no. 51500/08, § 65, 23 February 2016; and Arnar Helgi Lárusson v. Iceland , no. 23077/19, §§ 55-59, 31 May 2022)?

3. As the court-appointed expert’s report, submitted by the applicant, had pages missing, the applicant is requested to submit this report, dated 25 April 2021, in its entirety.