Adoption, religious upbringing and Article 9 ECHR: Abdi Ibrahim

Abdi Ibrahim v Norway [2021] ECHR 1060 was about the decision by the Norwegian authorities to allow the adoption of a child by a foster family against his mother’s wishes.

Background

Ms Ibrahim was a Somalian who had moved to Norway and who had been granted refugee status in June 2010. She had arrived in Norway with her son, X, who had been born a few months earlier in Kenya. In December 2010, X was placed in emergency care by social services. Following a decision of the County Social Welfare Board (“the Board”) he was then put in ordinary foster care with an Evangelical Christian family, while his mother had argued he should go either to her cousins or to a Somali or Muslim family.

Ms Ibrahim was granted four supervised contact sessions with X per year, later increased to six. In September 2013, social services applied to allow the foster family to adopt X, which would lead to Ms Ibrahim having no contact and losing her parental rights. The intended adoptive parents wanted to baptise X [51], whereas she wanted him to follow Islam [56]. She appealed: she did not ask for X’s return because he had spent a long time with his foster parents and had become attached to them, but she did seek contact so that he could maintain his cultural and religious roots. Finally, in May 2015 the High Court authorised X’s adoption and Ms Ibrahim was refused permission to appeal to the Supreme Court.

She complained under Articles 8 and 9 of the Convention. She also relied on Article 2 of Protocol No.1. In a judgment of 17 December 2019, a Chamber of the European Court held, unanimously, that there had been a violation of Article 8. On 17 March 2020, she requested that the case be referred to the Grand Chamber in accordance with Article 43 and that the Chamber’s judgment be revised [6].

This was the nub of her submission:

“Article 8 should be interpreted in the light of Article 9 of the Convention and Article 2 of Protocol No. 1. Questions regarding violations of freedom of religion should, however, be kept separate from Article 8 and the issue arising under Article 9 merited its own discussion. For a parent to raise a child in accordance with his or her religion or belief was a manifestation of that religion or belief, and this practice was at the core of the perception of what religious freedom is; it was also universal to all religions and belief systems” [91].

The judgment

The Grand Chamber recognised that Ms Ibrahim’s views attained the necessary level of cogency, seriousness, cohesion and importance to bring them within the scope of Article 9, and for a parent to bring her child up in line with her own religious or philosophical convictions might be regarded as a way to manifest her religion or belief, in “teaching, practice and observance”. Further, when the child lived with her biological parent, she could exercise Article 9 rights in everyday life “through the manner of enjoyment of … her Article 8 rights”. However, it did not find it necessary in Ms Ibrahim’s case “to determine the scope of Article 9 and its applicability to the matters complained of” [140]. Her complaint about the adverse effect of the choice of a foster home on her wish that X be brought up in line with her Muslim faith could be examined as an integral part of her complaint under Article 8 interpreted and applied in the light of Article 9, rather than as a separate issue under Article 9 itself [141].

It was common ground that the withdrawal of Ms Ibrahim’s parental responsibility for X and the authorisation for his adoption interfered with her Article 8 rights. Further, the interference was in accordance with the law and pursued the legitimate aims of the protection of X’s “health and morals” and his “rights”, however, it remained to be considered

“whether the disputed measures were ‘necessary in a democratic society’ for the pursuit of these legitimate aims, including whether the domestic authorities had due regard to the applicant’s interests protected by the Article 9 freedom” [143].

The general principles were those set out in Strand Lobben and Others v Norway [2019] ECHR 615 at [203] to [213]:

  • whether, in the light of the case as a whole, the reasons adduced to justify that measure are relevant and sufficient for the purposes of paragraph 2 of Article 8;
  • that in all decisions concerning children, their best interests are of paramount importance;
  • that in the case of imposition of public care restricting family life, the authorities have a positive duty to take measures to facilitate family reunification as soon as reasonably feasible;
  • that where the respective interests of a child and those of the parents are in conflict, the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child;
  • that, generally, the best interests of the child dictate, on the one hand, that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit but, on the other, that a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development;
  • that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit;
  • that a foster-home arrangement with a more far-reaching measure such as deprivation of parental responsibilities and authorisation of adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child’s best interests”;
  • that the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on several varying factors, but “consideration of what is in the best interests of the child is in every case of crucial importance”;
  • the margin of appreciation will vary in the light of the nature of the issues and the seriousness of the interests at stake;
  • in cases relating to public-care measures, the Court will further have regard to the authorities’ decision-making process, to determine whether it has been conducted to take proper account of the views and interests of the natural parents and that they are able to exercise in due time any remedies available to them; and
  • “Whether the decision-making process sufficiently protected a parent’s interests depends on the particular circumstances of each case.”

In the present case, the Court was not satisfied that in depriving Ms Ibrahim of her parental responsibility for X and authorising his adoption by the foster parents, the domestic authorities had attached sufficient weight to her Article rights: in particular, to the mutual interest of a mother and child in maintaining their family ties and personal relations. The reasons that the domestic authorities had advanced were insufficient to demonstrate that the circumstances were so exceptional as to justify a total severance of the ties between X and his mother, or that their decision had been motivated by an overriding requirement pertaining to X’s best interests. Nor had Ms Ibrahim’s views and interests been duly taken into account. There had accordingly been a violation of Article 8 [162].

The Court was not prepared to order a reopening of the adoption proceedings under Article 46 of the Convention [179-185].

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For a critical review of the judgment, see Stephanos Stavros, Oxford Human Rights HubWhat It Takes to Make People Feel Integrated “Here in Europe” Without Necessarily “Becoming Like Them Norwegian Christians”.

Cite this article as: Frank Cranmer, "Adoption, religious upbringing and Article 9 ECHR: Abdi Ibrahim" in Law & Religion UK, 23 February 2022, https://lawandreligionuk.com/2022/02/23/adoption-religious-upbringing-and-article-9-echr-abdi-ibrahim/

2 thoughts on “Adoption, religious upbringing and Article 9 ECHR: Abdi Ibrahim

  1. So in spite of Ms Ibrahim winning the various arguments she does not win the child.
    I think a further short commentary on that issue would be helpful. Reading the judgment it seems to me that it could just as well gone the other way.

    • Indeed. That’s very much the view of Stephanos Stavros.

      On the whole, I try to write casenotes “straight”, without commentary, and leave readers to draw their own conclusions.

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