W artykule poruszę zbadane już kwestie przez instytut dotyczące praw rodzin w Państwach skandynawskich. Uwzględnię kilka spraw i poszukam odpowiedzi o związek przyczynowo skutkowy.
Istotny będzie rozdział o historii Państw skandynawskich, dotyczących ustaw sterylizacyjnych i polityki eugenicznej.
In the article, I will discuss the issues already examined by the institute regarding the rights of families in Scandinavian countries. I will take into account a few cases and look for an answer about the cause and effect relationship.
The chapter on the history of the Scandinavian countries, regarding sterilization laws and eugenics policy, will be important.
Słowa kluczowe: prawa człowieka, rodzina
Keywords: human rights, family
The issue of child welfare offices in Scandinavian countries and in Germany has been a source of controversy in recent years. This can be seen in the context of the jurisprudence of the European Court of Human Rights in Strasbourg or diplomatic scandals. This is especially visible in the context of Poles, who are a significant national minority in Norway and Sweden. Child welfare poses immense challenges for many European countries as it involves not only legal issues, but also a clash of cultures and their approach to the institution of the family.
The Constitution of the Republic of Poland of 2 April 1997 expressly mentions the rights of parents to raise a child in accordance with their own convictions. This upbringing should take into account the child’s degree of maturity, as well as its freedom of conscience and religion[1].
Strict child welfare offices exist in Norway (Barnevernet), Sweden, and Germany (Jugendamt). These institutions have been repeatedly accused of violating human rights. The European Court of Human Rights has already ruled in 35 cases related to the activities of the Norwegian Barnevernet.
The following article aims to analyze human rights violations by the referenced institutions based on the scientific literature and jurisprudence of Polish courts and the European Court of Human Rights in Stasbourg (selected judgments). In particular, the author will focus his analysis on selected cases, in particular the case of the Bodnariu family, the case of the Lisov family, or the matter of political asylum for Silje Garmo[2].
An important issue to consider is the counteraction process based on the premise that it is the biological family that is the most important educational foundation. In recent years, Poland has become an ideal place of asylum for families from all over the world. It is worth mentioning that conservative families constitute the majority of the victims of child welfare violations.
Defining international law is a very difficult task and will not be undertaken in this article, as it is a topic for multi-volume monographs. This article will only mention its general definition as well as its origins and sources.
As Grégor Puppinck rightly notes, international law was created to “transcend the sovereignty of states.” In other words, the return of the natural order and the subordination of states to general rules[3]. This means that the primacy of the state in law-making was limited. Given that the doctrine was permeated with radical legal positivism, it is not surprising that it had to be rejected and partially returned to the concept of natural law in connection with crimes lawfully committed by totalitarian states.
Although its modern history is long, its institutional beginning can be considered the Peace of Westphalia (1648). The following important events in the history of international law were the Congress of Vienna (1814–1815) and the Conference of Versailles (1919–1920)[4] . The League of Nations (1920–1946) was the first organization that was to break the lead of states in law-making, but it was the establishment of the United Nations in 1948 and the signing of the Universal Declaration of Human Rights that turned out to be a breakthrough.
Therefore, we can define international law as a set of norms that are universal and supranational. International law, following the Roman model, is divided into public law concerning relations between states and private law concerning relations between citizens[5]. The main sources of international law are international agreements and international customs[6]. Soft law has also played an increasingly important role in recent years. Although it is an informal law, courts and states tend to follow it[7].
This text will focus on specific cases of human rights violations by Scandinavian countries. Child welfare offices are equipped with broad powers, one of which is the right to issue a decision to remove a child from its parents before it is even born. Institutions can freely access medical records, even though it seems obvious that doctors should not just make them available without the consent of the European Court of Human Rights (ECHR)[8]. Therefore, without a doubt, the influence, and powers (both statutory and non-statutory) of this type of institution are very broad. In addition, in cases where children are placed in a foster family, offices like Barnevernet makes it difficult for biological parents to meet their children[9]. The ECHR’s jurisprudence has rightly emphasized that this violates not only international law, but also the very essence of foster care, the purpose of which is to reunite the whole family[10]. Officials in Norway even made it difficult for the Polish consul Sławomir Kowalski to perform official duties aimed at accompanying Polish parents to meetings with children, even though such a right is guaranteed by the Vienna Convention on Consular Relations of April 24th, 1963. Ultimately, Norway expelled the consul, showing disrespect for international law, which caused a similar reaction from the Polish side. This article will also show that the current approach and mentality of the Scandinavian countries to child welfare should not come as a surprise, as these countries have demonstrated a consistent approach in this matter throughout their history.
The Norwegian Barnevernet operates based on the Act of 17 July 1992 No. 100 relating to Child Welfare Services (the Child Welfare Act). The system is organized both nationally and regionally. The organizational units of this institution operate in each commune or part of the commune, such as a city district[11]. From its inception, the system was criticized along with the German office[12] . This is evident when it comes to the confidentiality of the client, which prevents the institution from presenting its version of events[13]. As a result, media reports become the main source of information, often based on eyewitness accounts, available documentation, and on the jurisprudence of the ECHR. There are many allegations, the main ones being: violation of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (ratified by the Norwegians with two amendments in January 1989) and the European Convention of Human Rights of 4 November 1989, 1950. Norway has also shown a lack of respect for other acts of international law.
In recent years, Norway has made headlines in Europe for taking children away from their parents without good reason. The Romanian-Norwegian Bodnariu family is one of several cases for which Norway was taken to the European Court of Human Rights in Strasbourg[14]. It should be noted, however, that the case became famous for another reason as well. The family belonged to a Protestant community that protested in front of Norwegian embassies around the world. The mere teaching of religion to children and upbringing in accordance with the principles of faith challenged by Bondariou family turned out to be a sufficient pretext to intervene (children sang religious songs). The official reason for intervention was child abuse allegedly perpetrated by parents and “complained about by children at school”[15]. However, the allegations were, the office acted, and it seems that the family of foreigners was in a losing position from the beginning.
The legal bases were sections 4–6 and 4–12 of the Child Welfare Act (barnevernloven) of 17 July 1992 which allow for emergency removal of children and placement in foster families. The officials could not prove that the Bodnariu family hurt the children in any way. On the contrary, they were a loving family. The children loved their parents (there were five children including one which was still breastfed). The child welfare office was notified by the head of the school, who admittedly mentioned that the children had complained that they had been spanked and that their religion might be impeding development. On the other hand, the Principal considered Ruth and Mariusz to be good and loving parents. However, it was no use, Barnevernet decided that children should always be believed. The case file proves a very strong aversion to the family. The presumption of innocence[16] was also violated (it is up to the family to prove their innocence. The presumption of innocence per se applies to a criminal trial. A broader concept is the presumption of fairness. These rules can be derived from article 6 of the European Convention on Human Rights[17] \. In light of the above, it is unacceptable to immediately remove children without irrefutable evidence and a court decision. All five children were taken away. As already mentioned, after seven months, as a result of numerous protests around the world, the children returned to their parents, and the family fled to Romania, fearing further problems with the office.
The case finally went to the European Court of Human Rights in Strasbourg (Judgment from 26 November 2020). Despite the arguments of the parties that consideration of the merits of the complaint is possible, the Court finally rejected it, citing Art. 13 and 35 of the European Convention of Human Rights[18]. The premise of the application to the Court is the exhaustion of domestic remedies[19], which the family failed to do. Without commenting on the judgment in detail, it seems, that if the family had not run away, the Tribunal would have accepted their claims, as shown by subsequent judgments in similar cases. On the other hand, they would have had to wait much longer for their children to be returned. The Court would have dealt with this case, but it would not have guaranteed success due to the fact that the judges themselves work in such offices (in places other than those where they adjudicate). There is no doubt that if not for the attitude of the religious community, the family would struggle with problems for many years to come. This case may have been the most prominent, but it is one of many just like it, which shows the scale of this phenomenon.
Another case worthy of attention is that of Silje Garmo, a Norwegian mother descended from a noble family. A few years ago, this issue appeared in the Polish media. It became a groundbreaking case after which the Polish authorities and courts stopped disregarding the behavior of Norwegian offices. There is no doubt that successive judgments of the European Court of Human Rights[20] have also contributed to this increase in frequency which indicates the violation of human rights by the kingdom of Norway[21].
The Norwegian office had already taken her older child, based on allegations made by the child’s father. Barnevernet accused her of abusing drugs (paracetamol, which was prescribed by doctors), and of being too “dissolute” because she often traveled to Spain. Even prior to the birth, the decision to take the child away was made. Barnevernet had no interest in doctor-patient confidentiality or her mother’s arguments. Eventually, after encountering a bureaucratic wall, having no other choice, the woman fled with her newborn child to Poland. It is worth mentioning that without extensive contacts, the escape would not have been possible. It is also tragic that even feeding a newborn was made difficult[22].
There was no lack of support throughout the country, many organizations joined the cause (interestingly, Amnesty International – which ostensibly defends human rights – refused to help, due to the fact the criteria were ideological). Many petitions were organized, and many letters were sent to the Ministry for asylum to be granted and for Silje Garmo to be granted refugee status. Unfortunately, in Poland, the decision in this regard was purely political and dependent on many factors, including international relations, etc.
Silje was represented by attorney Jerzy Kwaśniewski[23]. Initially, the Office for Foreigners refused to grant asylum, arguing that it was not in the interest of the Republic of Poland. Arguments were pointless, because signals about violations of human rights came from many sides, including the European Parliament, the Council of Europe, and the European Court of Human Rights in Strasbourg.
This is another example of unjustified interference by state authorities in the family, violation of basic human rights, violation of the right to medical confidentiality and persecution on the basis of “speculation.”
Sweden does not have as radical model of state interference in family life as Norway. There are even situations when the Swedish media directly criticize the Norwegian Barnevernet for violating human rights. Although to a slightly lesser extent, in this country the state interferes more in the life of the family, as exemplified by the situation of the Lisov family from Russia – Sofia, Serafina, and Alise. The problems began when the girls’ mother was diagnosed with schizophrenia, which resulted in the woman being institutionalized. The girls’ father was also found incapable of caring for his daughters, due to the alleged failure to fulfill parental duties (earlier, the wife took care of the children while Denis worked). Due to this situation, the children were given to a Muslim foster family, despite being Christian. This is important because, according to international law, if foster care is provided, children should be placed with a family from the same cultural background as a priority.
Denis Lisov eventually had to abduct his own daughters. He tried to escape through Poland to Russia. However, the Swedes managed to mark the children as missing, and then issued a European Arrest Warrant on the Russian. Although he was detained at the Warsaw airport, a Polish court refused to extradite his family, citing possible human rights violations. The Polish Ombudsman for Children was also involved in the case. Ultimately, the Russian was not extradited, indicating that the daughters love their father, and he obtained a favorable verdict from the Polish court and returned to Russia.
Polish courts once again showed understanding and respect for international law, regardless of the diplomatic consequences. However, the Polish services did not rise to the occasion and were initially ready to hand over the family to “Swedish officials,” and they did not do so only because a lawyer intervened. This shows that training in this area of jurisdiction is also needed.
Once again, it turns out that separating the family is more important than helping the family. The Scandinavian understanding of the family seems to be the same as that of the state is above it.
Although this is a “Scandinavian model” approach to the best interests of the child, it seems to apply mainly in Norway, but unfortunately it also happens in other countries, to a greater or lesser extent. Even though the Polish Constitution seems to protect the unity of the family in writing, there are and have been many attempts to instill a different model of the family in our country. This is a major threat to freedom, democracy, and fundamental rights.
The model of excessive interference violates human rights. For example, according to article 8 Convention for the Protection of Human Rights and Fundamental Freedoms: T“1. Everyone has the right to respect for his private and family life, his home, and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” his does not mean that the state should not interfere in any way. The state should intervene to a limited extent, but the removal of the child from its family should be an instrument of last resort after all other options have been exhausted – such as providing social support, medical assistance, legal assistance, and other attempts to facilitate change of the situation. There is no doubt that pathological situations in families do occur. We should also strive to ensure that when people turn to state institutions, they feel a real possibility of receiving help. Unfortunately, in Poland, citizens are often worried their child will be taken away and are afraid to ask for help in the form of an allowance that they are legally entitled to.
Foster care should also not be treated as the final removal of a child, but rather as an indirect goal to reunite the family. It is worth remembering that the family is the foundation of society. Humanity survived totalitarianism thanks to the family, which teaches how to think and act independently.
We must postulate legal changes to our approach in how to treat every problem with determination to resolve the situation, not take a child away and have that be the end of it. Children should first and foremost be brought up by their biological parents who should be able to decide about their religion, views, and education. Many countries appear to have forgotten about these basic human rights. Happily, many community organizations are continuing this fight.
The history of the 20th century shows how excessive interference in family life and privacy can lead to tragedy. Sterilization, though a gloomy page in the history of Scandinavian countries, is kept silent as much as possible despite human rights violations in the 1980s, when all these countries were bound by international law.
Even though history has shown the effects of excessive interference in private and family life, no country has changed its approach. After all, shouldn’t the autonomy of the individual be the basis of human rights, which each of these countries theoretically respects[24]? Unfortunately, international law fails when it comes to the family. The activities of welfare offices should be kept to a minimum and we should not legally allow solutions that harm the family.