JOINT DISSENTING OPINION OF JUDGES MOUROU-VIKSTR ÖM AND ŠIMÁČKOVÁ

1. We cannot agree with the majority that there has been no violation of Article 8 of the Convention in respect of all three applicants. In our opinion, there are two issues where the majority’s conclusions (but also the conclusions of the national authorities) do not stand up to scrutiny, namely the question of the lawfulness of prohibiting contact between the applicants after the third applicant had reached the age of majority and the lack of consideration of the best interests of the child, i.e. the third applicant, in the national authorities’ procedure.

2. In our view, in the period from 5 February 2016 to 5 February 2017 (when the third applicant was still detained in a public institution), the prohibition of contact between the first two applicants and the third applicant was justified by the national courts on the basis of an impermissible analogy. We do not find sustainable the Government’s argument that the prohibition of contact continued after the third applicant had reached the age of majority due to the extension of institutional care until he turned 19. The national courts agreed that the prohibition of contact, based on Article 891 § 2 of the Civil Code, could continue after the third applicant’s majority in connection with the extension of the institutional care under Article 974 of the Civil Code.

3. We consider however, that once the third applicant reached the age of 18 (maturity), the prohibition of contact with his former foster parents was no longer based on any applicable legal provision of national law, as the mere consensus of the national courts involved in the matter, to which the Government referred, cannot be substituted for the valid national law, unless it is the courts’ interpretation based on settled case-law.

4. In the light of these considerations, we find that the prohibition of contact after the third applicant had reached maturity did not have any legal basis under national law. We are therefore persuaded that, at least during this period, the interference with the right of the three applicants to respect for their private and family life was unlawful.

5. The whole story of the third applicant clearly indicates that he was not provided with the care that was in his best interests. In his application, the third applicant himself pointed out that after having left the children’s home, he had moved to the home of the first and second applicants, his former foster parents (see paragraph 57 of the judgment).

6. It follows from the relevant legal framework and practice that the Czech Republic has faced criticism on grounds of over-institutionalising care for children without families (see paragraphs 64 to 66 of the judgment). Moreover, it cannot be overlooked that the third applicant spent his early childhood in institutionalised care and that he was placed in foster care (at the age of six), having lost all contact with his biological mother at the age of one and not having had any contact with his biological father.

7. It was clear from the very beginning that the State had not chosen the most suitable foster parents for the child, thus generating ongoing conflicts and problems (see paragraphs 6, 7, 13 and 23 of the judgment). The competent authorities did not provide the foster parents, who were not prepared to raise an older boy with health and educational problems and who was difficult to manage, with the sufficient support which was necessary in view of the well-known problems in foster care. Caring for a child with specific characteristics was very demanding and exhausting for the foster parents, who received no guidance or assistance from the State authorities. It follows that the State had already failed by selecting unsuitable foster carers and not providing sufficient support to them for the child. This, incidentally, was criticised by the Ombudsman in the course of the national court proceedings (see paragraph 24 of the judgment). That situation culminated in the placement of the child in institutional care, a fact which is not disputed by the applicants, who focused on the complete prohibition of contact between them.

8. In deciding whether to preserve at least some contact between the third applicant and his former foster parents, who were the only people in his life with whom he had personal ties similar to family ties, the third applicant was heavily influenced by an institution (children’s home) that was not sympathetic towards the foster parents because of their complicated behaviour. Thus the third applicant’s statements to the courts and other public bodies could not be considered to have been made freely. He had been motivated to obey and encouraged to write unsolicited texts, and in cases where his opinion was required, he was always accompanied by the staff of the children’s home.

9. The national authorities opted for a solution that was easier for the children’s home – banning all contact – rather than providing proper support and trying, for example, to straighten out the relationship between the child and the former foster parents through assisted contact. Moreover, they did not take a nuanced approach to assess the situation, did not review the measure over time, and did not properly explain why such a measure had been adopted.

10. We are convinced that when addressing the question of proportionality of the impugned measure, it must be considered whether, in the light of the case as a whole, the reasons given to justify it were “relevant and sufficient” for the purposes of Article 8 § 2 of the Convention. The latter element cannot be satisfactorily assessed without determining, at the same time, whether the decision-making process, seen as a whole, was fair and provided the applicants with the requisite protection of their interests safeguarded by Article 8 (see V.D. and Others v. Russia , no. 72931/10, § 112, 9 April 2019).

11. While the Court has already dealt with cases concerning contact between former foster parents and a child who used to be entrusted to their care (see for example V.D. and Others v. Russia ), it has not dealt with a situation where the child had no ties to its biological family and where the only adults with whom the child had formed close family ties were foster parents. In such a situation the importance of maintaining contact with the former foster parents – already recognised even in cases of return of the child to his or her biological family – is particularly significant and, therefore, the child’s contact with his or her former foster parents in the absence of any ties with the biological family must be respected and, in principle, encouraged, if it is in the child’s best interests. This is even more important where the child is placed in institutional care after having been removed from the foster parents. In our view, in the light of these considerations, the guiding principles set out in Court’s case-law regarding the relationships between a child taken into public care and his or her biological parents (see, in particular, Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 204-08, 10 September 2019) also apply, in principle, to contact between a child in institutional care (children’s home) and his or her former foster parents in a situation where the (former) foster parents are the only family that the child has known and has developed ties with.

12. In cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations. Furthermore, it is incumbent on the Contracting States to put in place practical and effective procedural safeguards to protect the best interests of the child and to ensure their implementation (see the United Nations Committee on the Rights of the Child: General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, paragraphs 85 and 87) and to examine on a case-by-case basis if it is in a child’s best interests to maintain contact with a person, whether biologically related or not, who has taken care of him or her for a sufficiently long period of time (see V.D. and Others v. Russia , cited above, §§ 125-26, with further references).

13. Domestic courts should provide more stringent procedural protection to a child who is placed in long-term institutional care, without any ties with members of his or her family, and who may tend to appropriate the views of the institution and instinctively substitute them for his or her own. It is thus the task of the courts to assess in an in-depth manner the opinions expressed by the child in the court proceedings, the outcome of which directly affects him or her, and to determine whether they are his or her own opinions. Institutional care entails structural neglect: children growing up in children’s homes are at risk in various areas of functioning, including their physical, socio-emotional, and cognitive development, including the risk that any will or wish expressed by them could be influenced by the institution in which they have been placed (ibid., § 126, with further references). The margin of appreciation to be afforded to the competent national authorities in cases where it has not been established that the situation seriously endangers the child’s health or development is limited, and the national authorities in question should always try to take less drastic measures (see Strand Lobben , cited above, § 211).

14. Where foster parents are the only persons with whom the child has formed close family ties, as in the present case, contact must be protected and encouraged, unless found to be explicitly dangerous to the child. This is even more important if the child is placed in institutional care. In this sense, the State has, in our view, significant procedural obligations in the court proceedings to explain whether and how it has taken the protection of these family ties into account and whether it has chosen the least drastic measure.

15. The wording of the national court decisions, when ordering the prohibition on contact, suggests that the courts did not consider the fact that the third applicant had spent most of his life in institutional care, which meant that he was inevitably under the influence of public institutions and, at the same time, subject to the influence of his foster parents, who were his only family. Referring to the third applicant’s submissions refusing contact with them, the courts did not seem to assess carefully whether he was repeating what he had heard or learnt in the children’s home or whether he was speaking for himself.

16. We are of the opinion that in the present case, the national authorities, having been fully aware of the history of the foster family and having monitored the situation of the family over the years, opted for the most drastic measure consisting of a complete prohibition on contact, which radically interfered with the relationships between the applicants, without considering whether an alternative less invasive measure aimed at regulating contact between them would have achieved the aim they were pursuing and without giving adequate reasons for their decision. Moreover, professional assistance by competent independent experts (i.e., for example, a psychologist or a social worker not linked in any way to the children’s home or its provider) in the normal course of the third applicant’s contacts with his former foster parents would have enabled the third applicant to enter adult life better prepared.

17. In conclusion, we find that there has been a violation of Article 8 of the Convention in respect of all the applicants, partly because of the unlawfulness of the prohibition of contact when the third applicant was already an adult. We more specifically find an even more serious violation of the third applicant’s rights under Article 8 of the Convention, namely in the excessive and probably ill-considered and unjustified absolute prohibition of contact between him and his former foster parents, who were the only persons with whom he had formed individualised family ties throughout his life.

APPENDIX

List of applicants

Application no. Case name Introduction date

Applicant’s name Year of birth Place of residence Nationality

Representative’s name Location

66015/17 Jírová and Others v. the Czech Republic 02/09/2017

Věra JÍROVÁ 1958 Hodkovice nad Mohelkou Czech Milan JÍRA 1958 Hodkovice nad Mohelkou Czech Vladimir BLÁHA 1998 Hodkovice nad Mohelkou Czech

David STRUPEK Prague