Adoption and religious upbringing: Abdi Ibrahim

Background

In Abdi Ibrahim v Norway [2019] ECHR 914, the applicant, Mariya Abdi Ibrahim, who was born in Somalia, had a son in November 2009 in Kenya and travelled to Norway in 2010, where she was granted a temporary residence permit with refugee status [6 & 7]. In September 2010 a parent-child institution notified the child welfare services that it was concerned that the child risked harm in her care [8]. He was placed in emergency foster care and in December 2010 the Country Social Welfare Board made a care order. He was subsequently placed with a Christian family, while Ms Ibrahim had argued that he should go either to her cousins or to a Somali or Muslim family [9].

The District Court upheld the care order in September 2011, allowing the applicant contact for one hour six times a year and expressing uncertainty as to whether the care order would be long-term [11]. In March 2014, the Country Social Welfare Board granted a request from the child welfare services for Ms Ibrahim’s parental responsibilities to be withdrawn and for the child to be adopted by the foster family [12-14].

Ms Ibrahim ultimately appealed to the High Court. She did not ask for the child’s return given that he had spent so long in the care of foster parents to whom he had become attached. However, she argued that it could not be concluded that contact with her in the future would not be in the child’s best interests, particularly given his need to keep in touch with his cultural and religious roots. The High Court ruled in May 2015 to allow the adoption. It considered, inter alia, the risks faced by the child: he was vulnerable and had special care needs and had suffered neglect in Ms Ibrahim’s care, even if that neglect could have been due to her own life situation during the pregnancy, birth and post-natal period. It also examined the issues such as ethnicity, culture and religion arising from the fact that he was to be adopted by a Christian family [17 & 18]. A majority concluded that there were several risk factors relating to Ms Ibrahims ability to provide proper care [21].  She was refused leave to appeal to the Supreme Court in September 2015.

The arguments

Before the ECtHR, Ms Ibrahim argued that the decision had violated her rights under Article 8 (respect for private and family life) and Article 9 (freedom of thought, conscience and religion). There had been no exceptional circumstances in the case and the nature of her son’s reactions after her visits had never been properly established [39]. Further, he had been placed in a Christian family with a very different background as to their origin, language and ethnicity – which meant that the authorities could not have had reunification of the family as an aim. By placing him in a Christian home where the family, including the boy, went to church and ate pork, the authorities had also systematically violated Ms Ibrahim’s right to freedom of religion [39 & 40]. 

The Government argued that, while the measures taken in the case had been far-reaching, they had clearly been supported by relevant and sufficient reasons [41]. Ms Ibrahim had been directly involved in the proceedings in person, granted legal aid and provided with a lawyer of her choice. She had been given full access to the information relied on by the courts and given the opportunity to present relevant evidence, including witnesses and had been aided by an interpreter. She had also been entitled to appeal against the decision of the County Social Welfare Board and the judgments of the District Court and High Court [42].  Further, the measures taken had been in the boy’s best interests, which had been assessed by the Board and two levels of domestic courts. Though the assessments might be difficult, the Government was obliged to act to protect vulnerable children and, in striking a fair balance between the rights of the parents and the rights of the child, to attach crucial importance to the childs best interests [43].

The judgment

The Court reiterated the principles related to child welfare as set out in Strand Lobben v Norway [2019] ECHR 615. Where a child had been placed in care, the authorities had a duty to take measures to facilitate family reunification as soon as reasonably feasible. Where there was a conflict of interests between a child and its parents, the authorities had to strike a fair balance – though a child’s best interests could override those of a parent. Family ties could only be severed in very exceptional circumstances [53].

Though states parties had a wide margin of appreciation when deciding on taking a child into care, the Court had to apply a “stricter scrutiny” of further limitations such as restricting parental access, because they could lead to a parent and young child’s family relations being curtailed [55].

Ms Ibrahim had not sought her child’s return but had asked the courts to refuse to allow him to be adopted, thereby removing her parental rights, and to maintain her contact rights [56]. Regardless of that, however, the domestic authorities had still been under an obligation to facilitate their family life, at the minimum by maintaining a relationship via regular contact in a way that was in the child’s best interests [57]. In the circumstances, it was difficult to see how the authorities could be said to have fulfilled their duty to facilitate family reunification.

A key issue in the High Court judgment had been that the boy had reacted negatively to the few contact sessions he had had with his mother; however, it was not possible to draw clear conclusions about future contact from so few meetings. There had been little to suggest that contact would always be so negative as justify a conclusion that breaking off all contact with his mother would be in the boy’s best interests [63].

The Court concluded that the authorities had given insufficient weight to Ms Ibrahim and her child enjoying family life together, basing its finding on the case as a whole and on the arguments for maintaining contact, notably relating to their cultural and religious background. The decision-making process that had led to the withdrawal of Ms Ibrahim’s parental responsibilities for her child and the authorisation of his adoption had not taken her views and interests duly into account [64].

There had therefore been a violation of Article 8 [65] – the Court having held that it was unnecessary to examine the case in relation to Article 9 [34].

Cite this article as: Frank Cranmer, "Adoption and religious upbringing: Abdi Ibrahim" in Law & Religion UK, 17 December 2019, https://lawandreligionuk.com/2019/12/17/adoption-and-religious-upbringing-abdi-ibrahim/

 

 

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