Parental contact cases remitted to the family court

Case no. BS-18800/2023-HJR and no. BS-17016/2023-HJR
Judgments delivered on 26 October 2023

The biological parents (A and B)
vs.
The adoptive parents

and

The biological grandparents (D and E)
vs.
The adoptive parents

A and B are the biological parents and D and E are the biological grandparents of child C born on 5 August 2018. On 31 October 2018, the child was placed in care with the biological parents’ consent. On 15 January 2020, the child was released for adoption without the biological parents’ consent. The cases concerned the issue of whether the biological parents and grandparents should be given regular parental contact rights or the right to some other form of contact with the child.

The Supreme Court stated that after the 2019 amendment of the Act, Section 20a of the Danish Act on Parental Responsibility must still 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 and private life, and that there must be sufficient evidence to enable the Court to make such decisions, cf. in this respect the Supreme Court’s judgment of 21 February 2023 (UfR 2023.2114).

With regard to the biological grandparents, the Supreme Court held that, according to the European Court of Human Rights’ case law, the relationship between grandparents and grandchildren is generally accorded a lower level of protection than the relationship between parents and children under Article 8 of the Convention. This means that the grandparents’ only right in respect of their grandchildren under Article 8 is to maintain or develop a normal grandparent-grandchild relationship through contact between them.

As it was not possible based on the information in the cases to rule out that the conditions for granting regular parental contact, including the exchange of photos or video recordings etc., were fulfilled, the Supreme Court held that the family court and the High Court had in neither case had sufficient information before them to pass a judgment, and that the cases were therefore to be remitted for reconsideration to the family court.

In both cases, the High Court had reached different conclusions.