Release of child for non-consensual adoption

Case no. BS-41118/2020-HJR
Judgment delivered on 8 March 2021

M
and
F
vs.
The National Social Appeals Board

The child, B, was placed in care with a foster family shortly after birth due to M’s and F's lack of parenting capacity. In connection with the placement, M and F had contact with B, which did not, however, lead to any improvement of M’s and F’s parenting capacity. When B was around 18 months old, the Board decided to release the child for non-consensual adoption under Section 9(3) of the Danish Adoption Act. A suitable adoptive family was found, and B was placed in their care under Section 32a of the Adoption Act. At this time, M applied for contact with B under Section 20a of the Danish Act on Parental Responsibility. During the case before the Supreme Court, it was disclosed that a contact decision under Section 20a of the Act on Parental Responsibility was yet to be made after 13 months.

The case before the Supreme Court concerned the issue of whether the conditions for non-consensual adoption had been met, including whether the decision and the subsequent placement of the child with the adoptive family under Section 32a of the Adoption Act was in contravention of the European Convention on Human Rights.

The Supreme Court held that there was a high degree of probability that the parents would permanently be unable to care for their child, and that considerations for the continuity and stability in the child’s upbringing meant that adoption was in the best interest of the child.

With regard to Section 32a of the Adoption Act, the Supreme Court held that the provision implied no restrictions on the access to taking subsequent legal action to have the decision on adoption annulled if the conditions for the decision had not been met. The provision was thus in compliance with Article 8 and did not give rise to any concerns in respect of Article 6 of the Convention. The Supreme Court also stated that, according to the travaux préparatoires, the purpose of Section 32a was to create a safe and stable upbringing for children adopted without consent, and to avoid that these children are kept in a harmful waiting position pending the hearing of adoption cases.

The Supreme Court also stated that it is generally necessary for a decision on future contact under section 20a of the Act on Parental Responsibility to be taken as close in time to the adoption as possible, and that this, according to the case law, may be taken into account in the proportionality assessment when determining whether adoption is consistent with Article 8 of the ECHR. However, the Supreme Court ruled that it was in the child’s best interest not to annul the adoption on the grounds that the Board had not made a decision on contact under section 20a of the Act on Parental Responsibility.

The Supreme Court thus affirmed the judgment of the High Court.