Parental contact case remitted to the family court

Case no. BS-25683/2022-HJR
Judgment delivered on 21 February 2023

The biological parents
vs.
The adoptive parents

A and B are the biological parents of a child born on 21 March 2020. On 3 April 2020, the child was placed in care without their consent. On 1 July 2020, the child was released for adoption, and on 14 August 2020, it was placed in the care of the adoptive parents. The case concerned the issue of whether A and B should be given regular parental contact rights or the right to some other form of contact with the child.

The Supreme Court stated that Section 20a of the Danish Act on Parental Responsibility must be interpreted in accordance with the European Court of Human Rights’ case law in cases concerning Article 8 of the European Convention on Human Rights on the right to family life. Referring to the legislative history behind this provision, the Supreme Court also stated that it must be ensured, among other things, that access to regular parental contact or other form of contact between the child and the biological parents is not in effect only granted in very special cases, and that the importance of giving the child the opportunity to know its roots must be taken into account in the overall assessment to be made under Section 20a.

Against this background, the Supreme Court considered that in cases concerning Section 20a of the Act on Parental Responsibility, there must be sufficient evidence to enable the Court to make a decision in accordance with both the Act on Parental Responsibility and Article 8 of the ECHR. The scope of the information to be produced must be considered on a case-by-case basis, but in cases where it cannot be ruled out in advance that there may be a basis for granting regular parental contact or other form of contact, it may be relevant, among other things, to obtain the opinion of a child expert as well as an expert opinion on the biological parents, including inviting the child expert to make a statement in court. In that connection, it would also be possible to examine the options for granting another form of contact than regular parental contact.

As it was not possible based on the information in the case to rule out that the conditions for granting regular parental contact or other form of contact between A and B and the child, including the exchange of photos or video recordings etc., were fulfilled, the Supreme Court held that the family court and the High Court had not had sufficient information before them to pass a judgment in the case, and that the case was therefore to be remitted for reconsideration to the family court.

The High Court had reached a different conclusion.