September 05, 2023
By Jill Marshall
The ECHR’s text does not explicitly protect cultural rights. This position contrasts with other international human rights treaties such as the International Covenant on Economic, Social and Cultural Rights. However, through its dynamic interpretation of the ECHR’s different articles, substantive rights have been recognised which may fall under the notion of ‘cultural rights’. The provisions most commonly invoked are Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the Convention, as well as Article 2 of Protocol No. 1 (right to education). It has been noted that the growing importance of cultural rights in the Court’s case-law may be, at least in part, caused by the number of cases brought by persons or entities belonging to national minorities within member states of the ECHR, including cultural, linguistic or ethnic minorities. This is especially so when these cases concern the right to maintain a minority identity and to lead one’s private and family life in accordance with one’s traditions and culture, an issue pertinent when children are involuntarily removed from biological parents by the state. In this blog, I analyse these issues through case law developments in Strand Lobben and Others v Norway, Abdi Ibrahim v Norway and, the most recent case which for that reason is set out in more detail: Kılıc v Austria. Each case demonstrates shifts in attitudes towards the importance of maintaining ties with biological families and their cultural and religious origins when children are involuntarily removed from biological parents. All cases emphasise that the children’s best interests must remain paramount.
In Strand Lobben, after giving birth to her son, the first applicant accepted the child welfare authorities’ recommendation to stay at a family centre for evaluation. When she decided to leave three weeks later, the child was taken into immediate compulsory care and placed in a foster home on an emergency basis, because of concerns about the child’s nutrition. The child remained in foster care for three years until the social welfare authorities authorised adoption by the foster parents.
The ECtHR confirmed that protecting biological family ties was fundamental, except when a family has proved particularly unfit. In this case, the ECtHR decided that the domestic authorities had not attempted to perform a genuine balancing exercise between the interests of the child and those of his biological family. The Court found that the decision-making process that had led to the decision authorising his adoption had not been conducted to ensure that all the views and interests of the applicants had duly been considered. The process did not have the safeguards required for such a grave interference and the seriousness of the interests at stake, and therefore breached Article 8.
In Abdi Ibrahim, the applicant was a Somali woman of Muslim faith who immigrated to Norway in 2010 as a single underage mother with her one-year old son. She was granted asylum status. To help care for her child, the applicant had stayed at a parent-child-centre. The centre notified the child welfare services that the applicant’s child was at risk. The child welfare services issued a care order regarding the applicant’s son based on gross physical and emotional neglect. The child was subsequently placed with Norwegian foster parents described as active Christians. The Somali applicant had requested that her child should be cared for by her cousin or a Somali or a Muslim family but this was said to not be possible. For three and a half years, the applicant was allowed limited contact with her son. The foster parents wanted to adopt but they did not want an open adoption with future contact sessions between the applicant and her son. They intended to baptise the adopted child and change his name. When the authorities subsequently allowed for his adoption by the foster family, the applicant did not ask for the child’s return but sought continuation of contact so that her son could maintain his cultural and religious roots.
The ECtHR found a violation in that the relevant authorities had seemingly given more importance to the foster parents’ opposition to open adoption than to the applicant’s interest in the possibility of a continued family life with her child through contact. Reaching its decision, the ECtHR noted that the domestic courts had relied on Article 20 (3) of the Children’s Rights Convention (UNCRC), according to which, when assessing possible solutions for a child temporarily or permanently deprived of his or her family environment, due regard must be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. The Court accepted that this standard corresponded to, and complied with, the requirements of the Convention. However, the arrangements made after the child’s initial placement into foster care as regards the applicant’s ability to have regular contact with him, culminating in the decision to allow for his adoption, had failed to take due account of the applicant’s interest in allowing the child to retain at least some ties to his cultural and religious origins. The reasons given for the domestic decision were not, therefore, sufficient to show they were exceptional to justify a complete and definite severance of the ties between the child and the applicant or that the decision to that effect had been motivated by an overriding requirement to act in the child’s best interests. Ultimately therefore the ECtHR considered that the decision to approve the adoption failed to take due account of the applicant’s interest in allowing the child to retain at least some ties to his cultural and religious origins (see also this blogpost). A violation of Article 8, in light of Article 9, of the ECHR, was found.
The married applicants in this case complained under Article 8 and, in substance also under Article 9. They were of Turkish nationality and Muslim. Their complaint centred on the Austrian domestic courts refusing to return their two youngest children R and M to their care. Further, they complained that the children’s placement with Austrian Christian foster families who did not speak Turkish failed to take into account their cultural, linguistic and religious background. Evidence was produced that the applicants had been reported to the relevant authorities because four out of five of the applicants’ children were alone in an unhygienic and uninhabitable apartment. The youngest two – R, three years old, and M, three months old, at this time were ‘showing signs of severely delayed development’ (para. 7). All five children were immediately removed from the applicants’ care. During domestic court proceedings, the three older children were returned. An occasion was recounted when the applicants visited R, at the foster carer’s home. R was wearing a necklace with a small cross on it. The parents reacted by ‘yelling and hurling abuse’ ‘dragged R…. forcibly grabbed the child and ran away with her’. However, passers-by stopped this. R was returned to her foster mother. R was ‘severely shocked by the incident and felt afraid of both applicants.’ (para. 15). The cross necklace was explained in domestic court proceedings by the foster mother as originating from a chewing gum machine during a holiday and that the girl had insisted on wearing it on the day of that visit when R had said she did not want to see the applicants.
A lengthy series of court proceedings occurred between 2010 and 2016, including one at which the relevant courts reminded the foster carer that she had to respect R’s Muslim religion. Evidence of the children’s agitation and fear at contact visits, and inappropriate reactions and lack of empathy of the applicants, particularly the mother, was produced. During initial visiting rights, the mother had, in the presence of R, slapped a social worker and insulted her using derogatory terms. In 2014, the relevant court held there was no indication of any ‘Christianisation’ of the children. There was no evidence to suggest any foster carers were inconsiderate of the children’s cultural background and their religion. Their removal from their biological family did not amount to forced ‘Christianisation’ ‘deracination’ or ‘deprivation of their identity’ as the applicants had argued. It was a valid protective measure (para. 58). Expert reports had provided evidence that the mother in contact meetings with R and M demonstrated ‘a lack of empathy and respect towards her children…driven by her own incentives…and was not considerate towards her children.’ (para. 40). When the older three children had been returned to the applicants’ family home, the authorities provided evidence that the applicants would not be able to care for R and M too.
The Court held that there was an interference with the right to respect for the applicants’ family life under Article 8 (1) and that the measure was in accordance with law aimed to protect the legitimate aim of protecting children. But the question to be decided was whether the authorities, and therefore Austria, had struck a fair balance between the competing interests at stake in line with their negative and positive obligations to achieve the legitimate aim. By six votes to one, the Court decided that there were relevant and sufficient reasons for the domestic authorities not to return the children to their parents’ care because family reunification had not been reasonably feasible, and that, throughout the proceedings, the authorities had had due regard to the applicants’ interest in their children being brought up in line with their cultural, religious and linguistic origin. The Court therefore decided that there was no violation of Article 8 either alone or taken with Article 9.
The Court’s starting point in its assessment was Strand Lobben. The Court reiterated that when public care is imposed restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible. As a guiding measure, a care order should be regarded as a temporary measure, and any measures implementing temporary care should be consistent with the ultimate aim of reunification (para. 119). Generally, the best interests of the child dictate that the child’s ties with its family must be maintained, except in cases where the family has been proved to be particularly unfit. However, it is clearly also in the child’s interest to ensure their development in a ‘sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development’ (para. 121, citing Strand Lobben, paras 207-8). The Court noted the broad consensus, including in international law, that in all such decisions, paramount importance is given to the best interests of the child (para. 120). The child’s interests must come before all other considerations. Article 8 requires the striking of a fair balance between interests of the child and parents if they conflict, with particular importance attached to the best interests of the child which may override those of the parents (para. 120, citing Strand Lobben, paras 204-206).
The ECtHR noted that the authorities had made efforts to check if any members of the wider biological family were capable of taking care of the children, as Austrian law gives priority to placing children with relatives (para. 82, 148). The Court noted that none of them were deemed suitable to take care of the children or were capable of doing so. Further, Austrian law, and foster care practice, include information as to the importance of so-called ‘biography work’, the importance of the family of origin for the child and the child’s personal search for his or her identity (para. 89), all in keeping with respect for cultural, linguistic and religious ties. The Court referred to the numerous proceedings before the domestic courts and whether the authorities, when placing R and M with foster carers and thereafter, had due regard to the applicants’ interest in their children being brought up in line with their cultural and religious origin. There was undisputed information that there are only a very few Turkish and/or Muslim foster families available in the Vienna area, despite active efforts made by the authorities to encourage more to apply. Both children had been placed with foster families open to other cultures and religions (para. 147). The Court therefore accepted that (based on the available information) the domestic authorities had made efforts to place the children with families corresponding to the applicants’ cultural, linguistic and religious background, including the wider biological family, but that no such family had been deemed suitable or available at the time (para. 148-9).
The Court moreover attached importance to the fact that it only appeared to be after the necklace was worn that the applicants raised the issue of Turkish or Muslim identity – at least one and a half years after R had been living with the foster mother. The Court contrasted this with the situation in Abdi Ibrahim where the biological mother specifically expressed her wish to place her child in a Somali or Muslim foster home just over a month after the initial care placement (para. 150). In terms of language, it was accepted that Turkish was the language spoken within the applicants’ home. The Court noted that the best interests of a child who has been taken into care at a very young age would normally require that the child learn their mother tongue as soon as possible and appropriate, in order to maintain their cultural background and to facilitate reunification with their biological family. The Court noted that, according to the Austrian government submissions, Turkish language courses are available free of charge to the applicants’ children, but the applicants do not appear to have requested these (para. 159). Ultimately the Court concluded there was no evidence of indoctrination, and that the choice of foster carers did not deprive the applicants of their right to maintain a relationship with, or pass on their cultural heritage to, their children. The authorities had complied with their positive obligations and provided regular contact with the children, taking into account the applicants’ interest in maintaining their cultural, linguistic and religious bonds (para. 161).
The Turkish government intervened in the case and Judge Hüseynov gave a dissenting opinion because of Austria’s failure, in his view, to take the required measures to preserve the children’s cultural, linguistic and religious identity (para. 166). He cites a lengthy quotation from Abdi Ibrahim stating it sets out the extensive positive obligations on states to maintain the religious, linguistic and cultural identity of children in care which is ‘an obligation of means, not of result’. Therefore, the positive obligation includes, but goes beyond, facilitating 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, to facilitate the children’s reunification with the parents as soon as possible. The positive obligation requires the prevention of the children being cut off from their cultural and religious roots, especially at a very young age.
Although finding no violation, Kılıc is consistent with Strand Lobben and Abdi Ibrahim. The ECtHR reiterates that when public care is imposed restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible, guided by the principle that a care order should be regarded as a temporary measure, and the best interests of the child generally mean that the child’s ties with its family must be maintained. But there will be cases when this is not the situation. The Court accepted that the Austrian authorities had made efforts to place the children with families corresponding to the applicants’ cultural, linguistic and religious background, but that no such family had been available at the time. Further, it was only after wearing a necklace with a small cross by one of children, one and half years after the removal of the children from the applicants, that the applicants in Kılıc raised the issue of Turkish or Muslim identity. The Court contrasted this with the situation in Abdi Ibrahim where the biological mother specifically expressed her wish to place her child in a Somali or Muslim foster home just over a month after the initial care placement (Kılıc at para. 150).
While Strand Lobben focused on the need to keep the family preserved, Abdi Ibrahim highlighted the interests of the parents to allow the child to retain ties to their cultural and religious origins. Abdi Ibrahim referenced Article 20 of the UNCRC which states that ‘due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background’. In that case, the applicant was successful because she raised this issue early, the foster parents were described as ‘active Christians who wished to baptise the foster child and to change his name’ and involved permanent adoption as contrasted to the facts of Kılıc (Kılıc at para. 152). All of these cases reflect more recent societal developments and attitudes in favour of maintaining parental links in involuntary removal of children from biological parents in contrast to previous views on adoption. Such societal changes have varied reasons but have at least partially arisen because of the abhorrent abuses of forceable removal of babies, mother and baby homes, indigenous people’s violations in this regard and more.
While Abdi Ibrahim was directly referenced in Kılıc, its facts lead to a different conclusion. In Kılıc, the ECtHR decided that the Austrian authorities did take into account the cultural, linguistic and religious heritage of the applicants’ children, did seek to maintain ties with the family, and the case does not involve adoption. As explained above, the Court stated that it is clearly also in the child’s interest to ensure their development in a ‘sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development’ (121, citing Strand Lobben, para. 207-8). The Court noted the broad consensus, including in international law, that in all such decisions, paramount importance is given to the best interests of the child (para. 120).
The child’s best interests must come before all other considerations. In Kılıc, the evidence appeared to demonstrate that the children were often afraid of their parents with the consequence that it was in the children’s best interests to be placed elsewhere. Efforts had been made to place the children with wider family members and with foster carers from Turkish and or Muslim backgrounds. These were not available. Austrian law and foster care practice include information as to the importance of ‘biography work’, of the biological family’s origins and a child’s search for his or her identity. This is all in keeping with these recent care cases at the ECtHR.
Although not the subject matter of this case, the cases are consistent with the ECtHR’s development of the right to personal identity arising from interpretation of Article 8’s right to respect for private life, and children’s identity rights under international law. While origins, background and heritage are important to identity, what is in the child’s best interests will ultimately trump any placements. What is in the child’s best interests will not always include maintenance of biological ties, including cultural, religious and linguistic heritage from one’s biological parents. These best interests will depend on the facts of the case.
 See, for example, J Marshall Personal Freedom through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Martinus Nijhoff 2009) and Human Rights Law and Personal Identity (Routledge 2014).