HØJESTERETS DOM afsagt torsdag den 26. oktober 2023 Ved offentlig gengivelse af rettens afgørelse må der ikke ske offentliggørelse af navn, stilling eller bopæl for nogen af de personer, der er nævnt

Article 8

of the Convention between grandparents and grandchildren where there are sufficiently close family ties between them (see Lawlor v. the United Kingdom, no. 12763/87, Commission de-cision of 14 July 1988, Decisions and Reports (DR) 57, p. 216). While cohabitation is not a prerequisite, as close relationships created by fre-quent contact also suffice, relations between a child and its grandpar-ents with whom it had lived for a time will normally be considered to fall within that category (see Bronda v. Italy, 9 June 1998, § 51, Reports of Judgments and Decisions 1998-IV).

1. That being so and given that in the instant case the applicants were living with their grandchildren from their birth until 30 December 2013 (see paragraphs 4 and 7 above), that is, some seven and eight years, the Court considers that the relations between them constituted “family life” protected by Article 8 of the Convention.
2. The Court further reiterates that in normal circumstances the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child and thus by its very nature generally calls for a lesser degree of protection. There-fore, when a parent is denied access to a child taken into public care this would constitute in most cases an interference with the parent’s right to respect for family life as protected by Article 8 of the Convention, but this would not necessarily be the case where grandparents are concer-ned. In the latter situation, there may be an interference with the grand-parents’ right to respect their family life only if the public authority reduces access below what is normal, that is, diminishes contacts by refusing to grandparents the reasonable access necessary to preserve a normal grandparent-grandchild relationship (see Price v. the United Kingdom, no. 12402/86, Commission decision of 9 March 1988, DR 55, p. 224; Lawlor, cited above; and G.H.B. v. the United Kingdom (dec.), no. 42455/98, 4 May 2000). That is so because respect for a family life in such situations implies an obligation for the State to act in a manner cal-culated to allow the ties between grandparents and their grandchildren to develop normally (see Marckx v. Belgium, 13 June 1979, § 45, Series A no. 31).
3. Thus, the right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contacts between them.
4. However, the Court reiterates that contacts between grandparents and grandchildren normally take place with the agreement of the per- 5 son who has parental responsibility which means that access of a grandparent to his or her grandchild is normally at the discretion of the child’s parents (see Price, cited above; and Lawlor, cited above). In any event, the Court notes that the domestic proceedings that could result in an interruption or restrictions of contacts between the applicants and their grandchildren, in particular those concerning imposition of a re-straining order (see paragraphs 85-88 above), and access rights of the applicants (see paragraphs 89-94 above), are still pending.” Menneskerettighedsdomstolens afgørelse af
5. oktober 2016 i sagen T.S. og J.J. mod Norge (sag nr. 15633/15) angik et barn, der var født i 2003, og som i 2007 sammen med sin mor flyttede fra Polen til Norge. Moderen døde i 2011, hvoref-ter barnet blev anbragt i en plejefamilie i Norge. Bedstemoderen, der var bosat i Polen, havde gennem årene haft en tæt kontakt med barnebarnet. Bedstemode-ren klagede over, at en norsk domstol havde truffet afgørelse om, at hun alene kunne have samvær med barnebarnet to gange om året i fire timer ad gangen. Domstolen afviste klagen. I afgørelsen hedder det bl.a.: “
6. The Court notes from the outset that it has accepted that there may be “family life”

Article 8

of the Convention be-tween grandparents and grandchildren where there are sufficiently close family ties between them (see, for example, Kruskic and others v. Croatia (dec.), no. 10140/13, 25 November 2014). While cohabitation is not a prerequisite, as close relationships created by frequent contact also suffice, relations between a child and its grandparents with whom it had lived for a time will normally be considered to fall within that category (see Bronda v. Italy, 9 June 1998, § 51, Reports of Judgments and Decisions 1998-IV). In the present case, X had good contact with the first applicant until he was four years old and moved to Norway in 2007. He regularly visited her in Poland while his mother was alive. After the death of X’s mother, this contact, even if less frequent because of geographical dis-tance, became more significant. The Court is thus satisfied that there is family life

Article 8. 24.

Turning to the question of whether there was an interference with the first applicant’s right to respect for her family life, it should be noted that, when a parent is denied access to a child taken into public care, this would constitute in most cases an interference with the parent’s right to respect for family life as protected by Article 8 of the Convention. How-ever, this would not necessarily be the case where grandparents are con-cerned. In the latter situation, there may be an interference with the grandparents’ right to respect for their family life only if the public au-thority reduces access below what is normal, that is, diminishes contacts by refusing to grandparents the reasonable access necessary to preserve 6 a normal grandparent-grandchild relationship (see Price v. the United Kingdom, no. 12402/86, Commission decision of 9 March 1988, DR 55, p. 224; Lawlor v. the United Kingdom, no. 12763/87, Commission decision of 14 July 1988, Decisions and Reports (DR) 57, p. 216; and Kruskic, cited above, § 110).

1. In the instant case, the first applicant was granted contact rights for four hours, twice per year. Having regard to the fact that the first applicant lives in Poland and X in Norway, and that the first applicant thus needs to travel for each visit, the Court considers that the very limited number of hours granted per visit amounts to an interference with the first applicant’s right to respect for her family life. 26.Moreover, it is clear that the measure to restrict contact between the first applicant and X was in accordance with the law, namely the 1992 Child Welfare Act (see paragraphs 15-17 above), and the Court finds no reason to doubt that these measures were intended to protect “health and morals” and the “rights and freedoms” of X.
2. In determining whether the impugned measure was “necessary in a democratic society” , the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purpose of paragraph 2 of Article
3. In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as tra-ditions relating to the role of the family and to State intervention in fam-ily affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII).
4. With regard to the proportionality of the measure, the Court has emphasised that the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent 7 and child and thus by its very nature generally calls for a lesser degree of protection (see Mitovi v. the former Yugoslav Republic of Macedonia, no. 53565/13, § 58, 16 April 2015).
5. In the present case, the Court notes that one of the reasons why the contact rights were restricted to four hours per visit was X’s own views on the extent of contact with the first applicant, as well as the observa-tions that the first applicant’s visits had had harmful effects on X (see paragraphs 8 and 11 above). Given his age (12 years at the time of the Supreme Court’s decision), and taking into account the fact that there will be nothing to prevent him from taking the initiative to increase con-tact at any time in the future if he so desires, the Court is satisfied that the domestic authorities were justified in giving weight to X’s own views as to whether increased contact would be in his best interests (see G.H.B. v. the United Kingdom (dec.), no. 42455/98, 4 May 2000).” Menneskerettighedsdomstolens dom af
6. september 2019 i sagen Bogonosovy mod Rusland (sag nr. 38201/16) angik et barnebarn, der i en længere årrække havde boet hos sine bedsteforældre. Barnebarnet blev med bedstefaderens samtykke i 2013 adopteret af en familie, som bedsteforældrene kendte. I november 2014 forhindrede adoptivforældrene bedstefaderen i at have kontakt med barnebarnet, hvilket bedstefaderen indbragte for den lokale byret. Menneskerettighedsdomstolen fandt, at der forelå en krænkelse af artikel 8, fordi bedstefaderen af byretten automatisk var blevet udelukket fra efter adop-tionen at have kontakt med sit barnebarn. I dommen udtalte Domstolen bl.a.: “
7. The Court reiterates that there may be “family life”

Article 8

of the Convention between grandparents and grandchildren where there are sufficiently close family ties between them. While cohabitation is not a prerequisite, as close relationships cre-ated by frequent contact also suffice, relations between a child and his or her grandparents with whom he or she had lived for a time will normally be considered to fall within that category (see Kruškić v. Croatia (dec.), no. 10140/13, § 108, 25 November 2014).

1. In the present case the second applicant had been taking care of his granddaughter M. for five years from May 2008, when she had moved in with him together with her mother at age one year and eight months, through her mother’s serious illness and death in April 2011, and until July 2013, when the girl moved out to live with her future adoptive par-ents Mr and Ms Z. He had also been M.’s guardian between May 2011 and December
2. The Court is satisfied that there was family life be- 8 tween the second applicant and the child

Article 8of the Convention.

This has not been disputed by the parties.

1. The Court will next examine whether there has been a failure to respect the second applicant’s family life.
2. The Court notes that where the existence of a family tie has been established, the State must in principle act in a manner calculated to ena-ble that tie to be maintained. The relationship between grandparents and grandchildren is different in nature and degree from the relation-ship between parent and child and thus by its very nature generally calls for a lesser degree of protection. The right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contact between them, even though that contact normally takes place with the agreement of the person who has parental responsibility (see Mitovi v. the former Yugoslav Republic of Macedonia, no. 53565/13, § 58, 16 April 2015).
3. The Court is mindful, however, that the adoption terminates the le-gal relationship between the child and his or her natural parents and family of origin and, therefore, the Convention obligation to enable the family tie to be maintained will necessarily change (see paragraph 54 above).
4. The Court observes that in the present case the issue of post-adop-tion contact, thus the issue of whether a family tie between the second applicant and his granddaughter should be maintained after her adop-tion was not examined as such by the domestic courts in the course of the adoption proceedings.” Menneskerettighedsdomstolens dom af
5. februar 2022 i sagen Q og R mod Slovenien (sag nr. 19938/20) angik to børnebørn, der havde boet hos deres bedsteforældre i fire måneder, efter at børnenes moder var død. Børnebørnene blev anbragt hos en plejefamilie i en anden slovensk region. En af bedsteforældrene indgav en anmodning om at fungere som plejeforælder for børnebørnene, hvil-ket de nationale domstole afslog. Bedsteforældrene klagede til Menneskerettighedsdomstolen over bl.a. dette afslag. Domstolen fandt, at der ikke forelå en krænkelse af artikel
6. I dommen hedder det bl.a.: ”
7. The Government pointed out that there had been no doubt that the applicants and W and Z had enjoyed family life and that the applicants were entitled to have contact with their grandchildren. However, the concept of family life between the grandparents and grandchildren 9 could not be compared to that of the family life between parents and children. …
8. The Court points out that “family life”

Article 8

includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life. “Respect” for a family life so under-stood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 221, ECHR 2000-VIII). For the gen-eral principles relating to the rights of grandparents, see Mitovi v. the former Yugoslav Republic of Macedonia, no. 53565/13, § 58, 16 April 2015, and Terna v. Italy, no. 21052/18, § 64, 14 January

2. In determining whether decisions on restriction of contact with a child in cases concerning parent-child relationship could be regarded as “necessary in a democratic society” , the Court has considered whether, in the light of the case as a whole, the reasons adduced to justify these measures were relevant and sufficient. The Court has emphasised that in cases of this type the child’s interest must come before all other considerations. Account must also be taken of the fact that the national authorities have the benefit of direct contact with all the persons con-cerned. It is not the Court’s task to substitute itself for the domestic au-thorities in the exercise of their responsibilities regarding contact issues but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see S.J.P. and E.S. v. Sweden, no. 8610/11, §§ 89 and 91, 28 August 2018, and Gobec v. Slovenia, no. 7233/04, §§ 132 and 133, 3 October 2013). The Court finds that these principles apply also to the cases concerning decisions on the contact rights of grandparents (see, for example, Nistor v. Romania, no. 14565/05, §§ 73 and 75, 2 November 2010, and Manuello and Nevi v. Italy, no. 107/10, § 58, 20 January 2015).
3. The Court further reiterates that, whilst Article 8 contains no explicit procedural requirements, the decision-making process must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Petrov and X, cited above, § 101). The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the appli-cants have been involved in the decision-making process to a degree sufficient to provide them with the requisite protection of their interests (see Z.J. v. Lithuania, no. 60092/12, § 100, 29 April 2014, with further ref-erences). 10
4. The Court has previously found that, pursuant to the international standards in force, in any judicial or administrative proceedings affect-ing children’s rights under Article 8 of the Convention, children capable of forming their own views should be sufficiently involved in the deci-sionmaking process and be given the opportunity to be heard and thus to express their views (see M. and M. v. Croatia, no. 10161/13, §§ 171 and 181, ECHR 2015 (extracts)).” Anbringender Biologisk bedstemor og Biologisk bedstefar har anført navnlig, at forældreansvarslovens § 20 a skal fortolkes i overensstemmelse med Den Euro-pæiske Menneskerettighedskonvention. Det indebærer, at fastsættelse af sam-vær ikke kun er forbeholdt ”helt særlige tilfælde” , jf. Højesterets dom af
5. fe-bruar 2019 (UfR 2019.1565). Det vil være bedst for barnet, at der fastsættes samvær med dem, fordi der inden bortadoptionen blev opbygget en positiv og betydningsfuld relation, som et fortsat samvær vil kunne bygge videre på. Vurderingen af, hvad der er bedst for barnet, beror på en helhedsvurdering, hvorved det bør indgå, at langt størstedelen af adoptivbørn i løbet af deres opvækst, og selv fra en tidlig alder, vil have gavn af at have samvær med såvel de-res biologiske forældre som deres bedsteforældre. Et samvær hver
6. uge kan ikke anses for at gå imod barnets behov for en stabil og sammenhængende hverdag med adoptivfamilien. Endvidere vil et samvær kunne afvikles på en sådan måde, at adoptivforældrenes identitet ikke afsløres. I hvert fald er sagen utilstrækkeligt oplyst og bør hjemvises til familieretten til fornyet behandling. Adoptivforældrene har anført navnlig, at det er bedst for barnet, at der ikke fastsættes samvær. Barnet har fortsat brug for ro og stabilitet. Etablering af samvær med de biologiske bedsteforældre vil have den modsatte effekt. Et barn, som er tvangsbortadopteret, har brug for en lang periode, hvor barnet uforstyr-ret har mulighed for at danne nye relationer og føle sig tryg i adoptivfamilien. Det vil virke forvirrende og uhensigtsmæssigt for barnet, hvis barnet samtidig skal forholde sig til sine biologiske bedsteforældre. Det beskedne samvær, der var forinden bortadoptionen, kan ikke siges at have skabt en blivende relation til de biologiske bedsteforældre. Under alle omstændigheder kan denne relation ikke antages at bestå længere, da der er gået mere end 3 ½ år uden samvær eller anden form for kontakt. Hvis der fastsættes sam- 11 vær eller anden kontakt, vil det derfor alene være de biologiske bedsteforældres behov, der tilgodeses. Gennemførelsen af samvær er ikke foreneligt med deres ønske om anonymitet, herunder bestemmelsesret over, hvilke oplysninger barnet skal have vedrø-rende adoptionen. Højesterets begrundelse og resultat Sagens baggrund og problemstilling Biologisk bedstemor og Biologisk bedstefar er biologiske bedsteforældre til et barn født Dato