October 29, 2019 (The Public Discourse) — In recent weeks, it has been reported that the Norwegian authorities have taken permanent custody of three American children from their Christian parents. Natalya Shutakova, a US citizen, and her husband, Lithuanian citizen Zigintas Aleksandravicius, are now allowed to visit their children only three times per year. Sadly, this is not particularly shocking to those who have been working to protect parental rights in Europe.

It seems remarkable that this can be happening in a country that positions itself as a human rights champion. Through its Agency for Development Cooperation, Norway devotes more than $400 million per year to its priority areas, including the protection of human rights. It is therefore ironic that, despite its public efforts to protect human rights, a human rights violation it would have rather kept hidden has been exposed to the world.

The snatching of the Bodnariu children

In some ways, the story starts in 2015 with the very public removal of the five Bodnariu children — then aged nine to only three months — from their parents by the Barnevernet, Norway's child welfare agency. The first they knew of it was when two black cars approached their farm. A social worker told them that their daughters had been taken directly from school into emergency state care and that the parents should come to the police station to answer questions. At this point, their two older sons were also taken.

The very next day, the black cars appeared again. They were there for the baby. There was an allegation of corporal punishment (illegal in Norway) but, more concerningly, the parents' crime seemed to be seeking to raise the children in line with their Christian faith.

There was, for example, a concern about the way the parents thought that God punishes sin — a willful mischaracterization of the Christian belief in forgiveness and salvation. According to the family, this formed part of the concerns initially raised with Barnevernet by the principal at the daughters' school. The idea that such a core Christian belief was even partial grounds for Barnevernet to swoop in and wrest children from the school gates prompted protests outside dozens of Norwegian embassies around the world from Barcelona to Washington.

This outcry also encouraged others to speak up. At ADF International, we were almost overwhelmed with the number of people who spoke to us of similar cases. After investigating, we became convinced that the Bodnariu case was symptomatic of serious issues with the way in which the Barnevernet was functioning.

Until this point, at the international level, the European Court of Human Rights (ECHR) had routinely rejected cases against Norway relating to Barnevernet, and that route of challenge looked closed. We needed to dig deep into what was happening and to ask the tough questions. We provided information to a number of European parliamentarians who sit as part of the Council of Europe's Parliamentary Assembly. The Assembly took up the issue and compiled a detailed report. The rapporteur travelled to Norway and met with senior officials and members of the Norwegian Parliament. In the end, the report was presented to the Parliamentary Assembly, which voted to adopt it.

Another case comes to the fore

Around the same time that this report was underway, the ECHR decided to accept a raft of cases filed against Norway challenging these practices. While the Bodnariu case continued to make headlines, another case was heard first. In the Lower Chamber, the ECHR ruled against Ms. Trude Strand Lobben, but the Grand Chamber agreed to review the case, setting the stage for a showdown. This case concerned a young mother who went to the authorities for help when she was pregnant. They offered her a place in a supported family unit. A number of weeks after the birth of her son, she expressed a desire to leave. That set in motion a chain of events that would result in her son being taken away, her contact time reduced to eight hours per year, and, ultimately, her son being given up for adoption.

The ECHR hearing was held in Strasbourg in October 2018. On one side of the courtroom sat Ms. Strand Lobben and her lawyer. The inequality of arms on full display, the Norwegian government was represented in court by none other than its Attorney General supported by eight advisers. Ms. Strand Lobben waited almost a year for the ruling.

This month, she was vindicated by the Grand Chamber, which ruled that Norway had made no effort to reunite her family, as it is obliged to do. The ruling referenced the Report that had been adopted by the Parliamentary Assembly just four months before the hearing in this case. The decision marks only the third time the Grand Chamber has found Norway in violation of the European Convention — a conclusion with which thirteen of the seventeen judges agreed. The tragedy is that this "victory" at the ECHR comes over ten years after Ms. Strand Lobben's son was taken from her. The decision does not have the effect of reuniting mother and son, and neither the judgment nor the small sum of compensation awarded could atone for the damage done to this family.

Norway on trial

The facts of this case generally follow a now well-established — and tragic — pattern. A child is removed based on one specific concern. The parents then robustly challenge the authorities. What should be understood as a reflection of their love for their child is then used against them as demonstrating an unwillingness to work with the authorities. That is used as grounds to prolong the separation, with the original specific concern fading into the background. Eventually, enough time passes that the authorities claim the child is now well-settled and should remain permanently with the foster family. We have seen this pattern repeat time and time again.

Thankfully, the Grand Chamber has now intervened. And it is not just the European Court of Human Rights that is taking note. Recently, Norway was subject to a four-year review of its human rights record at the United Nations in Geneva. Several states and NGOs raised concerns and made recommendations about the way in which Barnevernet has been operating. Norway, battered by the winds of international condemnation, accepted every single recommendation made to protect children from arbitrary removal by Barnevernet and to ensure proper protection for the family.

But accepting recommendations is not enough. It needs to be followed by concrete actions that result in better protection for families. While anyone would agree that there are some cases in which the state should intervene to protect children, this needs to be rare, and based on clear evidence that a child will suffer real harm. And even after a child has been removed, the duty of the state — as the ECHR made clear — is to work vigorously toward bringing the family back together.

Parental rights under fire

Although these revelations concern Norway, it does not stand completely alone when it comes to harmful practices that undermine parents and the family. In Germany, the longstanding prohibition on homeschooling (backed by criminal penalties in some regions) was upheld earlier this year by the ECHR. In the case of the Wunderlich family, four children were snatched from their home by more than thirty police officers in a dawn raid. They were kept for three weeks and subjected to education assessments. They performed at normal levels but were only allowed to return home after their parents promised to send them to school. This treatment, decided the ECHR, was "not implemented in a way which was particularly harsh or exceptional."

Meanwhile, in Sweden, homeschooling is, in theory, allowed. However, permission must be sought, which is only granted under "extraordinary circumstances." In practice, this means almost never. That was the decision of the Swedish Child and Education Board in the case of the Petersen family. The mother and father, dual American and Swedish citizens, had educated their seven-year-old daughter at home during a three-month trip. The results were excellent and, on her return to school, it was clear she was performing at a level well above her classmates. Wanting to continue educating their daughter in this way, they sought and were refused the necessary permission.

The only way they were able to pursue the educational choice they believed to be in their daughter's best interest was to sell almost everything they owned and relocate to the United States. That is clearly not an option available to most, and so ADF welcomed the news that the United Nations Human Rights Committee has agreed to hear this complaint earlier this year. Even more recently, just this month, in Scotland, the government has finally announced that its beleaguered "Named Person" scheme will be dropped. Under the scheme, every child would have been given a state-appointed guardian to oversee his or her well-being.

The scheme was challenged all the way to the UK Supreme Court which, in Summer 2016, ruled that the scheme violated article 8 of the European Convention. In a telling passage, the justices wrote, "Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers' view of the world. Within limits, families must be left to bring up their children in their own way."

For more than two years after this judgment, the Scottish government clung to its flagship initiative, suggesting this "snoopers charter" could be amended to become lawful. They have finally given up. And yet British parents cannot rest for long as, separately, Parliament has passed regulations introducing compulsory "relationships and sex education" in English schools from September 2020. Parents can withdraw their children from the sex education aspect until just before they turn 16 but have no right to opt them out of relationships education at any age.

The battle continues

Parents around the world know the profound responsibility and privilege it is to have and to raise children. And governments know the immense power of families and communities as a check on the excesses of the state. As the Universal Declaration of Human Rights puts it, the family is the "fundamental group unit" of society. Those who undermine it attack the foundation of our societies and the source of great richness and diversity.

The most generous interpretation of these attacks is that some of the policies, ostensibly aimed at protecting children, are well-intentioned, but misguided. Yet we must also be on guard for those for whom the temptation of power affords the opportunity to force their utopian vision on a future generation by sidelining parents and, ultimately, deconstructing the family.

One of the strands running through many of these threats is the legal test often used in child welfare proceedings. That test says that actions must be judged against what is in the "best interests of the child." While that may sound attractive — who, after all, would want to act against a child's best interests? — this nice-sounding phrase provides no real guidance to courts asked to settle a dispute between parties who both claim to be acting in the best interests of a child. The divergent parties could be the parents; but we also often see the parents on one side, and the state on the other. That was the case for the Bodnariu parents, the parents of Charlie Gard, and for Ms. Strand Lobben. In her case, the judgment referenced this standard 122 times.

If we are to restore the place of parents, and to protect the family, we must revisit this standard. The consequences for those involved in child welfare proceedings can be more serious and long-lasting than even those involved in criminal proceedings. The standards involved must be no less exacting. Intervention must always be a last resort, and only based on verified evidence that a child is in real danger of serious harm. Moreover, in circumstances where separation occurs, parental appeals must be dealt with expeditiously, given the way in which the status quo can quickly become ossified.

Back in Norway, things are far from over. Natalya Shutakova and Zigintas Aleksandravicius have vowed to appeal, and the Bodnariu case, filed in December 2016, is waiting for its day in court. It seems likely that it will mark another bad day for Norway, but a much-needed good day for parents and families across Europe and beyond.

Published with permission from The Public Discourse.