AS TO THE ADMISSIBILITY OF
Application No. 22173/93
by Egil BORSE
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
H.G. SCHERMERS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 April 1992 by
Egil Borse against Norway and registered on 7 July 1993 under file
No. 22173/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Norwegian citizen, born in 1948. He is a
civil engineer and resides at Trondheim, Norway.
I.
In 1978 the applicant married a Canadian citizen and in November
1980 his wife gave birth to their son, C. In 1985 the applicant and
his wife separated and a detailed agreement concerning custody and
access to C was made between the parents on 4 October 1985.
It appears, however, that the agreement could not be honoured to
both parties' satisfaction for which reason the applicant instituted
proceedings, on 6 May 1986, in the Trondheim City Court (byrett) in
order to obtain sole custody of C. Experts were appointed and their
report of 5 January 1987 concluded that both parents were capable of
taking proper care of C and that, therefore, joint custody would be
preferable. On 12 January 1987 the parties reached an agreement in
court whereby the parents were given joint custody of C. It was
furthermore agreed that C should live with the applicant and that the
mother should have access as set out in the agreement.
However, the mother considered ultimately that the applicant did
not fulfil his part of the agreement for which reason she instituted
proceedings, on 22 October 1987, in the City Court against the
applicant in order to obtain sole custody of C. The Court appointed
two experts who were asked to assess each parent's situation, having
regard in particular to the interests of C. In their opinions of
21 March and 11 April 1988, respectively, one of the experts
recommended that the mother should be granted custody whereas the other
concluded that the parents were equally capable of taking care of C.
By judgment of 26 April 1988 the City Court awarded custody of
C to the mother. The applicant was granted access in accordance with
the applicable provisions of the Children's Act (Barneloven).
The applicant appealed against the judgment to the Frostating
High Court (Lagmannsrett). While the appeal was pending the mother
requested the High Court, as an interim measure, to award her custody
until final judgment was pronounced. Her request was based on the fact
that the applicant's employer had requested the applicant to take up
employment in Oslo and that therefore he might take C with him. On
22 September 1988 the High Court decided in accordance with the
mother's request and C moved to his mother's residence on
29 September 1988.
The case was examined in the High Court from 11 to
13 January 1989. The applicant and the mother were heard, as well as
thirteen witnesses and two experts. On the basis of an evaluation of
their statements as well as the documentary evidence submitted the High
Court pronounced judgment on 13 February 1989 in which the City Court
judgment was upheld. The High Court stated inter alia as follows:
(translation)
Like the City Court the High Court finds that the case
concerns two parents who both are strong and capable
persons and who both have a sincere wish to serve the
child's interests. ... Like the City Court the High Court
finds that the difficulties which are at the heart of the
present case must be the parents' mutual lack of harmony in
their relationship and the lack of communication which
follows therefrom when it comes to matters concerning the
child. ... Both parents have satisfactory living conditions
as well as other material conditions which would secure the
child a good upbringing. ...
...
Despite the equality between (C's) parents as regards their
capability as his custodians differences in personality and
character speak in favour of giving the mother custody. C
is now in his ninth year. Despite the fact that he is
physically and mentally well developed according to his age
he needs a certain firmness in his life and vis-à-vis his
superiors. The High Court finds no reason to doubt that
(the applicant) as a father has a number of positive sides
and features of great importance for the child's future
development. The Court finds, however, that many of the
difficulties in the child's daily life and the lax attitude
towards agreements reached are due to the fact that (the
applicant) has not sufficiently understood the importance
of honouring the agreements reached. It appears that he
has, as a father, on a number of occasions and based on
insufficient grounds, let the child decide in situations
where the issue was already regulated otherwise between the
parents, with problematic effects a sa consequence.
...
When reaching the conclusion that it is in the interest of
(C) that the complicated and conflict-ridden situation of
co-operation which exists between the parents is now sought
solved by giving custody to the mother in that she alone is
awarded parental rights and daily care over (C), the City
Court and the High Court expect that she is aware of, and
will respect, the duties which follow therefrom vis-à-vis
(the applicant) and his interests. The High Court finds no
reason to blame unilaterally the father that the agreements
reached were not always honoured as expected. Also the
mother's attitude and reactions in the particular
situations on which emphasis has been placed have probably
contributed to an aggravation of the situation. However,
based on the experts' evaluation the High Court considers
that the mother ought to step in as the person responsible
(for C) as the parents, in the previous arrangements in
which the father was the central person, did not manage to
make the arrangements work."
As regards access the High Court found that the usual
arrangements pursuant to the provisions of the Children's Act could not
be implemented as it found it established that the applicant's
permanent residence was now Oslo. In these circumstances a specific
access arrangement was set out in the judgment on which the parties
could rely in case access could not be agreed upon between them.
The applicant subsequently applied to the Supreme Court
(Høyesterett) for leave to appeal. On 5 October 1989, his request was
rejected by the Appeals Selection Committee of the Supreme Court
(Høyesteretts Kjæremålsutfalg).
Less than four months later, on 19 January 1990, the applicant
instituted proceedings in the Trondheim City Court requesting that
custody of C be transferred to him or, in the alternative, that he be
granted access pursuant to the provisions of the Children's Act. By
judgment of 27 August 1990 the City Court decided that custody of C
should remain with the mother. Furthermore, the applicant was in the
circumstances refused access. The applicant's appeal was rejected by
the Frostating High Court on 29 March 1991 and leave to appeal was
refused by the Appeals Seelection Committee on 31 Octobner 1991.
Less than two months later, on 22 December 1991, the applicant
instituted new proceedings in the Trondheim City Court with a request
for custody or access. By decision of 2 March 1992 the Court dismissed
the case as it concerned substantially the same issues as previously
dealt with and since it contained no relevant new information. This
decisin was quashed by the High court on 29 September 1992 and the case
was referred back to the City Court for examination on its merits. The
Appeals Selection Committee of the Supreme Court confirmed the High
Court's decision on 19 November 1992.
While the case was pending in the City Court again, the applicant
requested the City Court judge to vacate his seat and to have another
judge appointed to deal with the case. On 4 January 1993 the President
of the City Court rejected the applicant's requests. The applicant's
appeals on these points were rejected by the High Court on
18 February 1993 and by the Appeals Selection Committee of the Supreme
Court on 27 April 1993.
The applicant then requested the City Court to grant him,
provisionally, a right of access to C pending the outcome of the case.
This request was rejected by the Court on 15 June 1993 inter alia due
to the fact that an access arrangement on a voluntary basis actually
existed. The applicant's appeals were subsequently rejected by the
High Court on 9 July 1993 and by the appeals Selection Committee of the
Supreme Court on 30 September 1993.
On 14 October 1993 the City Court held a hearing on the merits
of the applicant's requests for a transfer of custody or, in the
alternative, access to C. The applicant did not appear. The Court
then dismissed the case after having established that the applicant had
been called to appear and that he had not submitted any valid
justification for his absence. This decision was upheld by the High
Court on 29 December 1993. On 3 March 1994 the Appeals Selection
Committee of the Supreme Court dismissed the applicant's further appeal
as it found that his appeal did not contain anything which the Supreme
Court could consider.
Approximately three weeks later the applicant instituted new
proceedings in the Trondheim City Court which scheduled the main
hearing for 23 August 1994. However, the applicant did not appear for
which reason the case was again dismissed as it was established that
he had submitted no valid justification for his absence. This decision
was upheld by the high Court on 24 October 1994.
II.
It appears from the above that the applicant and his ex-wife
agreed, on 12 January 1987, to joint custody of C, that C should live
with the applicant and that the mother should have access in accordance
with the agreement. The applicant submits that C's name was
accordingly entered in the applicant's passport. In the autumn of 1988
the applicant obtained a new passport from the Chief of Police of Asker
and Bærum and C's name was again entered in the passport despite the
fact that the Trondheim City Court on 26 April 1988 had awarded custody
to the mother and despite the Frostating High Court's decision of
22 September 1988 to transfer, provisionally, custody of C to the
mother.
Following the final judgment as regards custody and access and
as these issues nevertheless, as set out above, continued to affect the
daily life of C, his mother and the applicant, it appears that the
police, in 1990, searched the applicant's home in order to find and to
verify the contents of his passport as he apparently was no longer
entitled to have C's name inscribed in it. On 5 April 1991 the police
searched the applicant's office in Trondheim, brought the applicant to
the police station and seized his passport. The same day the applicant
went to the local hospital and obtained a medical statement as he found
the police had used excessive force against him.
Subsequent to the seizure of his passport the Trondheim police
decided on 11 April 1991 to confiscate it as C's name was still
inscribed in it. It was returned to him approximately nine months
later after C's name has been deleted.
In the meantime, however, the applicant had complained about the
confiscation to the Ministry of Justice which, on 15 July 1991,
confirmed the decision taken by the Trondheim police. This decision
was maintained by the Ministry on 8 October 1991, By letter of
2 December 1992 the Parliamentary Ombudsman informed the applicant that
he found no reason to citicise the decisions taken.
Following the Ministry of Justice's above decision of
15 July 1991 it appears that the applicant instituted proceedings
against the Ministry in the Trondheim City Court maintaining that the
decision to confiscate his passport was illegal. The outcome of these
proceedings is unknown.
COMPLAINTS
The applicant complains that over the past ten years he has been
subjected to inhuman and degrading treatment by the Norwegian
authorities. In particular he refers to the custody conflict between
him and his ex-wife and maintains that his right to respect for his
family life has been violated due to the fact that the mother was
awarded sole custody of C and he was refused access.
The applicant also maintains that he has been, and still is,
harassed by the police.
He invokes Articles 3, 5, 6, 8, and 10 of the Convention.
THE LAW
1. The applicant complains of the fact that custody of his son, C,
was awarded to the mother and that he has been refused access to C by
the courts.
The Commission has examined this aspect of the applicant's case
under Article (Art. 8) of the Convention which reads:
"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 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."
The Commission recalls that proceedings concerning custody and
access have been pending before the Norwegian courts for years.
However, following the decision of the Appeals Selection Committee of
the Supreme Court of 5 October 1989 the courts have dismissed the
applicant's subsequent cases as he failed to appear. Nevertheless, the
Commission does not find it necessary to determine whether the
applicant in these circumstances has complied with the requirements of
Article 26 (Art. 26) of the convention because this part of the
application is in any event inadmissible for the following reasons.
In so far as the applicant complains of the fact that custody was
awarded to the mother the Commission recalls that the national courts
are often faced with the problem of making a choice between the
parents. Their decisions in this respect will not as such disclose any
lack of respect for the family life of the parent who is not granted
custody. In the circumstances of the present case the Commission has
not found any elements which could lead to another conclusion.
As regards the question of access the Commission recalls that in
accordance with its established case-law the right to respect for
family life within the meaning of Article 8 (Art. 8) of the Convention
includes the right of a divorced parent who is deprived of custody
following the break-up of the marriage to have access to or contact
with his child. The State may not interfere with the exercise of that
right otherwise than in accordance with the conditions set out in
Article 8 para. 2 (Art. 8-2) (cf. Hendriks v. the Netherlands, Comm.
Report 8.3.82, para. 94, D.R. 29, p. 14).
The Commission furthermore considers that the natural link
between a parent and a child is of fundamental importance and that,
where the actual family life in the sense of living together has come
to an end, continued contact between them is desirable and should in
principle remain possible. Respect for family life within the meaning
of Article 8 (Art. 8) thus implies that this contact should not be
denied unless there are strong reasons which justify such an
interference.
The Commission observes that the decisions taken by the Norwegian
courts in respect of access were based on the provisions of the
Children's Act. The interference was thus inaccordance with the law
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
As regards the legitimate aim the Commission has constantly held
that in assessing the question of whether or not the refusal of the
right of access to the non-custodial parent was in conformity with
Article 8 (Art. 8) of the Convention, the interests of the child
predominate. The interference therefore has a legitimate aim in so far
as it has been made for the protection of the child's interests (cf.
No. 7911/77, Dec. 12.12.77, D.R. 12, p. 192). There can be no doubt
that the interference in the present case with the applicant's right
under Article 8 (Art. 8) had this purpose. What remains to be
considered is therefore whether the interference was necesssary in a
democratic society for the protection of the child's interest.
In examining whether the interference was necessary the
Commission does not intend to substitute its own judgment for that of
the competent domestic courts. Its function is to assess from the
point of view of Article 8 (Art. 8) the decision which the courts took
in the exercise of their discretionary power.
It is an important function of the law in a democratic society
to provide safeguards in order to protect children from harm and mental
suffering resulting, for instance, from the break-up of the
relationship of their parents. In such cases this purpose may be
achieved by keeping the child away from a situation which could be
detrimental to his or her mental development owing to the existence of
a loyalty conflict vis-à-vis one or both of the parents and the
ivevitable parental pressure put on him or her causing feelings of
insecurity and distress (cf. Hendriks v. the Netherlands, loc. cit.,
para. 120).
In the present case the Commission finds that the competent
national courts carefully considered the questions of custody and
access. They came to the conclusion, however, that, given the
difficulties between the parents, it was impoartant for the child's
well-being to be kept out of these difficulties. In these
circumstances the Commission is satisfied that the interference
complained of was required by the interests of the child and that the
courts, when so deciding, did not go beyond their discretionary power.
The Commission has not overlooked the applicant's situation.
However, where, as in the present case, there is a serious conflict
between the interests of the child and one of its parents, the interest
of the child must under Article 8 (Art. 8) prevail. Furthermore, the
applicant submits that he is in fact seeing his son on a voluntary
basis.
The Commission concludes therefore that the interference with the
applicant's right to respect for his family life, being proportionate
to the legitimate aim pursued, was justified under Article 8 para. 2
(Art. 8-2) as being necessary in a democratic society for the
protection of the rights and freedoms of another person, namely the
child concerned.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The Commission has examined the remainder of the applicant's
complaints as submitted by him under Articles 3, 5, 6 and 10
(Art. 3, 5, 6, 10) of the Convention. However, it finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy