CASE OF JOHANSEN v. NORWAY



        In the case of Johansen v. Norway (1),

        The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court B (2), as a Chamber composed of the

following judges:

        Mr R. Bernhardt, President,

        Mr R. Ryssdal,

        Mr R. Macdonald,

        Mr I. Foighel,

        Mr R. Pekkanen,

        Mr A.N. Loizou,

        Mr J.M. Morenilla,

        Mr P. Kuris,

        Mr U. Lohmus,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

        Having deliberated in private on 26 January and 27 June 1996,

        Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1.  The case is numbered 24/1995/530/616.  The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number).  The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2.  Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

PROCEDURE

1.      The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Government of the

Kingdom of Norway ("the Government") on 1 March and 3 April 1995

respectively, within the three-month period laid down by Article 32

para. 1 and Article 47 of the Convention (art. 32-1, art. 47).  It

originated in an application (no. 17383/90) against Norway lodged with

the Commission under Article 25 (art. 25) by a Norwegian citizen,

Ms Adele Johansen, on 10 October 1990.

        The Commission's request and the Government's application

referred to Articles 44 and 48 (art. 44, art. 48); the request also

referred to the declaration whereby Norway recognised the compulsory

jurisdiction of the Court (Article 46) (art. 46).  The object of the

request and of the application was to obtain a decision as to whether

the facts of the case disclosed a breach by the respondent State of its

obligations under Articles 6, 8 and 13 of the Convention (art. 6,

art. 8, art. 13).

2.      In response to the enquiry made in accordance with

Rule 35 para. 3 (d) of Rules of Court B, the applicant stated that she

wished to take part in the proceedings and designated the lawyer who

would represent her (Rule 31).

3.      The Chamber to be constituted included ex officio

Mr R. Ryssdal, the elected judge of Norwegian nationality (Article 43

of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)).  On 5 May 1995, in the presence of

the Registrar, Mr Bernhardt drew by lot the names of the other

seven members, namely Mr R. Macdonald, Mr I. Foighel, Mr R. Pekkanen,

Mr A.N. Loizou, Mr J.M. Morenilla, Mr P. Kuris and Mr U. Lohmus

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4.      As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 39 para. 1 and 40).  Pursuant

to the orders made in consequence on 6 June and 13 November 1995, the

Registrar received the applicant's and the Government's memorials on

13 and 20 November 1995.  On 20 December 1995 the Secretary to the

Commission indicated that the Delegate did not wish to reply in

writing.

5.      On various dates between 10 January and 19 June 1996 the

Registrar received a number of documents from the Government and the

applicant, including particulars on the latter's Article 50 (art. 50)

claims.

6.      On 10 and 12 January 1996, the Registrar received from the

Government a request that the memorials and appendices thereto not be

made accessible to the public and that the hearing on 23 January be

held in camera.  The applicant and the Delegate of the Commission

submitted their comments on 16 and 17 January.  On 19 and 22 January

the Government and the applicant accepted that the hearing be held in

public subject, inter alia, to the non-disclosure of the identity of

certain persons, including the applicant's daughter.

7.      In accordance with the President's decisions, the hearing took

place in the Human Rights Building, Strasbourg, on 23 January 1996, in

public, in accordance with the terms indicated above.  The Court had

held a preparatory meeting beforehand.

        There appeared before the Court:

(a)  for the Government

     Mr T. Stabell, Assistant Attorney-General

        (Civil Matters),                                       Agent,

     Mr F. Elgesem, Attorney, Attorney-General's Office

        (Civil Matters),

     Ms T. Smith, Assistant Director-General, The Royal

        Ministry of Child and Family Affairs,

     Ms K. Ofstad, Adviser, The Royal Ministry of

        Child and Family Affairs,                           Advisers;

(b)  for the Commission

     Mrs G.H. Thune,                                        Delegate;

(c)  for the applicant

     Mrs S. Moland, advokat,                                 Counsel,

     Mrs K. Næss, advokat,                                   Adviser,

     Mr  A. Salomonsen,                                    Assistant.

        The Court heard addresses by Mrs Thune, Mrs Moland, Mrs Næss

and Mr Stabell.

8.      On 26 June 1996 the President decided that the Government's and

the applicant's memorials, subject to changes to the former, be made

accessible to the public but that those appendices thereto which

related to the domestic proceedings not be made so accessible

(see paragraph 6 above).

        On the same date, he also decided to authorise the filing of

the applicant's letters of 16 and 22 January 1996, with their

enclosures, but to refuse that of the letter and enclosures received

on 19 January (Rule 39 para. 1, third sub-paragraph, of

Rules of Court B).

AS TO THE FACTS

I.      Particular circumstances of the case

   A.   Background

9.      The applicant, who was born at Laksevåg near Bergen, left home

when she was 16. In 1977, when she was 17 years old, she gave birth to

her son C. and they became dependent on assistance from the social

welfare authorities.  From 1980 onwards the applicant cohabited with

a man who mistreated her and C.  He was convicted of drug offences in

1983 and spent two years in prison.  On many occasions the social

welfare authorities assisted the applicant in the upbringing of C., but

considerable problems as well as friction arose between those

authorities and the applicant.  In August 1988 C. began to receive

treatment at the Child Psychiatric Department of Haukeland Hospital in

Bergen.  In January 1989 he was admitted to a special school adapted

to his needs.

10.     On 14 November 1989 C., who was then 12 years old, was

provisionally taken into care under section 11 of the Child Welfare Act

(Barnevernsloven) no. 14 of 17 July 1953 ("the 1953 Act"; see

paragraph 33 below), as the circumstances of the case disclosed a

danger to his health and development.  The police assisted the child

welfare authorities in enforcing the decision.  After spending the

period from November 1989 to early January 1990 at the

Child Psychiatric Department of Haukeland Hospital, C. was placed in

a children's home.

        According to a statement of 10 January 1990 by the

Chief Physician, Ms Guri Rogge, and the Deputy Chief Physician,

Mr Arne Hæggernes, the applicant's and C.'s situation had been "rather

chaotic" throughout the period during which they had been in contact

with the hospital.  When faced with difficulties, the applicant had

broken off her contact with the system which had been set up to assist

her.  Her way of life had had a detrimental effect on C. and the fact

that he had changed schools had created much insecurity.

11.     In mid-November 1989 the applicant, who was pregnant, left

Bergen for Oslo.  On 23 November she was given accommodation at the

Oslo Crisis Centre, an institution for women who had been victims of

domestic ill-treatment.

        On the following day she went for an antenatal check-up at

Markveien Medical Centre in Oslo.  She stated to the doctor concerned

that she had been taking valium, vival and paralgin during her

pregnancy and that she had hardly eaten during the last fortnight.

Because of her pregnancy and her state of health she was subsequently

referred to Ullevål Hospital in Oslo.  The doctors there considered her

physical and mental state of health to be very poor, but refrained from

contacting the child welfare authorities, fearing that she might injure

herself if they did so.

   B.   Public-care measures in respect of the applicant's

        second child

12.     On 7 December 1989 the applicant gave birth to her daughter S.

In view of the applicant's difficult situation and the problems with

regard to the upbringing of C., the child welfare authorities

(barnevernet) at Røa in Oslo were contacted.  At a meeting on

8 December 1989 between the applicant and her lawyer and the child

welfare authorities the applicant's and S.'s situation was discussed.

        On 13 December 1989 the Chairperson of the Client and Patient

Committee of Røa, district 24 (klient- og pasientutvalget i bydel 24,

Røa - "the Committee"), decided to take S. provisionally into care

under section 11 of the Child Welfare Act (see paragraph 33 below) on

the grounds that the applicant, because of her physical and mental

state of health, was considered incapable of taking care of her

daughter.  The Chairperson considered that the child would be put at

risk if the decision were not implemented immediately.

        In reaching the above decision, the Chairperson had regard to

the decision by the social welfare authorities in Bergen to take the

applicant's son provisionally into care and their intention of doing

so on a permanent basis, as well as their concern for the situation of

the baby whom they considered taking into care immediately after birth.

The Chairperson also took into account information provided by

Markveien Medical Centre, by Ullevål Hospital and by those who had

attended the meeting on 8 December 1989.

        The applicant did not lodge any appeal against this provisional

care decision.

13.     On 19 December 1989, in accordance with the above decision, S.

was placed in a short-term foster home linked to the

Aline Child Care Centre.  The applicant was allowed to visit her twice

a week at the Centre.  She did not challenge this access arrangement,

which was not based on any formal decision.

14.     The question of public care was brought before the Committee

on 29 December 1989.  The Committee obtained an expert opinion dated

13 February 1990 from Mr Knut Rønbeck, psychologist, which contained

the following conclusion on the applicant's ability to take care of S.:

        "... On the surface, she appears to be a well-organised,

        friendly and charming young woman.  On meeting her, it may

        therefore initially be difficult to understand that the child

        welfare authorities and mental health authorities have had

        such serious problems in achieving cooperation with her for

        the benefit of her son.  If one approaches her more closely,

        however, a clear picture emerges of a woman with major

        unsolved mental problems which strongly affect her social

        functioning and her ability to care [for a child].  The

        problems are expressed in the form of anxiety and depression.

        Since her early youth, she has functioned fairly marginally

        from a social point of view.  For many years, she lived with

        a man who she herself believes abused both her and her son,

        but without being able to break out of this relationship.

        ...

        ... Having regard to [the applicant's] history in respect of

        taking care of her child and due to her lack of knowledge

        of/denial of her own faults vis-à-vis her own and [C.'s]

        problems I regret that, as the expert in this case, I am not

        hopeful about her future ability to take care of her children,

        although she undoubtedly loves them and is attached to them.

        In addition to these points [I] must add that [the applicant]

        now realises that what the future holds in store is the

        prospect of being a mother on her own in Oslo where she lacks

        support from a social environment.

        ...

        The child in this case [S.] is in a period of her life where

        the attachment to preferably stable persons ought to develop.

        It is of decisive importance for her personal development that

        she now gets the opportunity to attach herself to persons whom

        she may regard during her adolescence as stable and secure

        parents."

15.     The applicant requested the appointment of a second expert.

Since the child welfare authorities refused her request, the applicant

herself engaged a psychologist, Mrs Lise Valla, who submitted her

opinion on 17 April 1990.  This concluded:

        "... I cannot find that there are sufficient reasons for

        depriving [the applicant] of the care of her children [C.] and

        [S.].

        In my view [the applicant] shows responsibility when it comes

        to considering the children's adolescence - and she is also a

        person who may learn from the mistakes she has made.

        It is clear, however, that [the applicant] will need some

        practical assistance in the future.  It is desirable that both

        she and [C.] receive therapy in order to manage the emotional

        gaps from the bad years - and I would consider it reasonable

        that the public authorities should provide this.  Furthermore,

        [the applicant] ought to receive support so that she can

        improve her level of education."

        The above opinion was based on available documents and meetings

with the applicant and her son.

16.     In the meantime the child welfare authorities at Røa continued

their examination of the case.  Their report to the Committee of

30 March 1990, based on, among other material, talks with the

applicant, Mr Rønbeck's opinion and the case files of the child welfare

authorities in Bergen and Oslo, stated that if S. were to be reunited

with her mother, the child's mental health would be subjected to harm

or serious danger and she would live under such conditions as described

in section 16 (a) of the Child Welfare Act (see paragraph 32 below).

The report recommended that S. be taken into compulsory care pursuant

to section 19 of the Act, such measures being necessary in view of the

applicant's inability to provide satisfactory care for her daughter and

of the fact that the preventive care measures taken under section 18

of the Act in respect of her son C. had not been effective

(see paragraphs 33-34 below).  The report further recommended that S.

be placed in a foster home with a view to adoption.  Scientific

experience in recent years had shown that remaining a long-term foster

child instead of being adopted was disadvantageous for the child: the

foster parents could at any time cancel the agreement or the parents

might institute proceedings in order to be reunited with the child.

Adoption had the advantage of clarifying the situation and of creating

security and stability for the child and the adoptive parents.

Moreover, the report stated that, in order to secure the child's

development and its relationship with the persons who would permanently

assume the care, it would be appropriate for the authorities to deprive

the applicant of all her parental responsibilities (foreldreansvaret)

pursuant to section 20 of the Act (see paragraph 35 below).

        As regards the question of access, the report added:

        "While the girl has been at the Child Care Centre [the

        applicant] has had access to her twice a week for one hour.

        Following transfer of the girl to an approved foster home with

        a view to adoption it is recommended that access be refused

        and the address kept secret.

        [The applicant] has previously tried to disappear with her son

        in order to avoid the social welfare authorities and she did

        not inform the social welfare office/authorities when her son

        ran away from the children's home at Bergen in February 1990

        in order to stay with her.  Therefore, it is considered not

        unlikely that she would intervene in a disturbing manner in

        the foster home, and perhaps also try to take the girl with

        her.

        It is considered important for this child to have quiet and

        stability in the new environment where she is placed.  The

        social welfare authorities will accordingly recommend that

        [the applicant] be refused contact with the child and that the

        child's new address be kept secret.

        Today the girl has no relationship with her mother and,

        therefore, it will not be necessary to phase out the access

        arrangement before the girl is transferred to the foster

        home."

17.     On 2 May 1990 the Committee, chaired by a

Mrs Justice Inger Kristine Moksnes of the Oslo City Court (byrett),

examined the case.  The applicant, assisted by a lawyer, called

three witnesses and the child welfare authorities called one witness.

Mr Rønbeck, the appointed expert, was heard, but not Mrs Valla, the

expert engaged by the applicant herself.  As the costs in respect of

Mrs Valla's appearance were not covered by the State, she was not able

to attend the hearing.

        A request by the applicant's counsel to be assisted by

Mr Reidar Larssen, a psychiatrist, as a representative was rejected by

the Committee on the ground that the applicant was already represented.

He was, however, allowed to appear as a witness and to attend the

hearing thereafter with no right to address the Committee.

        The opinions of Mr Rønbeck and Mrs Valla and the child welfare

authorities' report of 30 March 1990 were available to the Committee.

        On the basis of the information and evidence submitted to it

the Committee decided on 3 May 1990, by four votes to two, to take S.

into care; to deprive the applicant of her parental responsibilities

(which as a result were transferred to the child welfare authorities);

to place S. in a foster home with a view to adoption; to refuse the

mother access as from the moment of the child's placement in the

foster home and to keep the latter's address secret.  In its decision

the Committee stated:

        "With reference to the reports which have been submitted and

        the submissions made during this meeting, the Committee's

        majority, Mrs Ryberg, Mr Clausen, Mr Aasland and Mrs Moksnes,

        finds that [the applicant] has very little chance of acting

        satisfactorily in taking care of her daughter.  The majority

        stresses that [the applicant] has had sole responsibility for

        the maintenance and care of her son, born in 1977.  This task

        she has not managed and the social welfare authorities have

        taken this child into care.  The [applicant] has received

        special assistance since 1977 and has lived off social

        security benefits since her son was 10 years old.  She has

        only worked for short periods.  She has not lived with the

        fathers of her two children but had for several years a

        cohabitant who ill-treated her and her son, both physically

        and mentally.  He was part of the drugs scene in Bergen, as

        she was at one time. He is now in prison, serving a sentence

        for drug dealing.  She has herself used drugs and alcohol and

        has had intoxication problems.  It is unclear how big a

        problem this has been, but the Committee assumes that she has

        no intoxication problems at present.  It is not quite clear,

        however, whether the problem has been solved also for the

        future.

        [The applicant] now maintains that she has broken with her

        former friend and her previous life.  She has moved to Oslo

        and now appears to have a different lifestyle than the one in

        Bergen.  She has made a few social contacts but these are

        dependent on circumstances and cannot be of decisive

        importance.  She has vague plans for the future, although she

        expresses a wish to train as a nursing auxiliary.

        However, the majority is of the opinion that the decisive

        factor in this case must be that, according to the appointed

        expert, [the applicant] has serious unsolved mental problems

        which impair her social skills and her ability to take care

        [of children]. Although her son has had considerable mental

        problems she has not been able to cooperate with the

        authorities and has not understood the necessity of giving his

        needs priority over her own.  She has not been able to

        understand that the boy needed help and has not been willing

        to accept assistance either.  The majority fears that this

        attitude may lead to her daughter's needs not being met either

        if she remains with [the applicant]. The majority finds that

        the daughter will live in such conditions that the

        requirements of section 16 (a) of the Child Welfare Act are

        fulfilled.

        In connection with taking her son into care a number of

        measures have been tried, and the majority therefore finds

        that measures under section 18 would be ineffective.  The

        requirements for care under section 19 are accordingly

        fulfilled.  The majority also finds that the requirements

        pursuant to section 20 of the Child Welfare Act are fulfilled.

        [The applicant] is not particularly motivated to accept

        treatment and there is little prospect of change in this

        respect.  The majority accordingly finds that it would be in

        the interest of the child to be placed in a foster home with

        a view to adoption.  The next few years will be crucial for

        the child and it is preferable that she should feel certain

        that she will not be moved.  It is of decisive importance for

        the girl that she can now be attached to stable persons whom

        she may regard as stable and secure parents in her

        adolescence.

        This is of decisive importance for the development of her

        personality.  Therefore she ought not to be exposed to a

        foster-home agreement which may be revoked.  She also ought to

        form close relationships with a small number of people and

        therefore ought to remain at a secret address pursuant to

        section 19 of the Child Welfare Act, so that [the applicant]

        no longer has access to her daughter when she is placed with

        foster parents."

18.     The minority of the Committee found that the applicant's

situation in life had improved since her removal from Bergen to Oslo

and that she should thus be given the opportunity to take charge of the

care of her daughter while staying at a special institution for that

purpose.

19.     After her daughter's birth the applicant moved to a flat in

Oslo.  During the spring of 1990, her son C. twice ran away from the

children's home in Bergen to join her in Oslo and, on the

second occasion, she indicated that she would not comply with the care

decision.  As C. did not want to return to Bergen and as the applicant

considered that the social welfare authorities there did not do enough

to help him, she decided to let C. stay in Oslo.  She managed to get

him admitted to a school there and she contacted a psychiatrist for

support.

20.     On 24 April 1990 it was decided to take C. permanently into

care but on 19 June that care decision was lifted, notwithstanding the

fact that his care situation was still considered to be detrimental to

his physical and psychological development, a matter which continued

to be of great concern to the authorities.  The conflict between the

authorities, on the one hand, and the applicant and her son, on the

other, had made it impossible to implement the care decision without

it being even more detrimental to the boy.  The decision of 19 June was

subsequently confirmed by the Hordaland County Governor (Fylkesmannen)

on 13 March 1991.  C. has lived with the applicant since May 1990.

   C.   Applicant's appeals against the care measures in respect of S.

21.     On 25 May 1990 the applicant's lawyer received the minutes of

the Committee's meeting of 2 May 1990 leading to its decision of

3 May 1990.  As regards the taking into public care and the deprivation

of her parental responsibilities, the applicant lodged an appeal on

28 May 1990 against the decision of 3 May with the County Governor for

Oslo and Akershus.  As far as the restrictions on access were

concerned, she requested the County Governor to give the appeal

suspensive effect (oppsettende virkning).  She submitted that

continuing access was decisive for maintaining contact between her and

the child pending the appeal.  The applicant also sent a copy of her

appeal to the Committee, which on 28 June 1990 decided to uphold the

decision of 3 May 1990 and to refer the case to the County Governor.

22.     On 31 July 1990 the County Governor, referring to section 42

of the Public Administration Act (Forvaltningsloven) of

10 February 1967 decided not to give the appeal suspensive effect on

the grounds that it would be in the girl's best interests if the

decision of 3 May 1990 to terminate access were implemented as from the

moment the child was placed in the foster home.

        S. was placed with foster parents on 30 May 1990.  The

applicant has not had access to or seen her daughter since.

23.     The applicant pursued her appeal against the care decision and

the deprivation of parental responsibilities.  As she was informed that

her appeal to the County Governor of 28 May 1990 would remain pending

for four to five months, she instituted proceedings in the

Oslo City Court.  She asked the court to set aside the Committee's

decision of 3 May 1990, maintaining inter alia that it was crucial that

her case be examined speedily, given that she had been refused access

to her daughter.  On 24 October 1990 the City Court dismissed (avviste)

the application as such actions could only be instituted subsequent to

a decision in the matter by the County Governor.  On 17 January 1991

the High Court (Lagmannsretten) rejected an appeal by the applicant on

the ground that the County Governor had in the meantime decided the

case (see paragraph 24 below) and there was therefore no reason to deal

with the appeal.  A further appeal to the Supreme Court (Høyesterett)

was rejected on 7 March 1991.

24.     On 9 November 1990, after a meeting with the applicant and her

lawyer, the County Governor for Oslo and Akershus upheld the

Committee's decision concerning care and parental responsibilities.

25.     On 13 November 1990 the applicant instituted proceedings

against the Ministry of Child and Family Affairs

(Barne- og familiedepartementet) in the Oslo City Court under

Chapter 33 of the Code of Civil Procedure (tvistemålsloven, Law no. 6

of 13 August 1915 -see paragraph 38 below), asking for the care

decision to be lifted and to be reunited with her daughter.  In the

alternative she requested that her parental responsibilities be

restored.

        On 20 December 1990 the defendant Ministry submitted

observations in reply.

26.     After consulting the parties, the City Court appointed two

experts on 1 February 1991 to evaluate the applicant's ability to take

care of her daughter and the consequences of revoking the care decision

and/or restoring the applicant's parental responsibilities.  The

experts were requested to submit their opinions by 15 March 1991, which

they did.

        On 8 February 1991 the parties were informed that the case had

been set down for 2 April 1991.

27.     The City Court, sitting with one specially appointed judge,

Mr Idar E. Pettersen, heard the case between 2 and 5 April 1991.

Having heard the applicant, represented by counsel, a representative

of the defendant Ministry, eleven witnesses and the two appointed

experts, the City Court, in a judgment of 16 April 1991, upheld the

taking into care and the deprivation of parental responsibilities.  It

gave the following reasons:

        "According to the Child Welfare Act the starting-point is that

        a child should grow up with his or her natural parents.  The

        interests of the child may, however, warrant exceptions being

        made to this general rule as it cannot be interpreted so as to

        allow the child to be subjected to considerable harm.

        In reviewing a compulsory measure imposed under the

        Child Welfare Act the courts must as a starting-point rely on

        the circumstances obtaining at the time of passing judgment.

        The possible negative effects on the child of being returned

        from the foster parents to the natural parents must be taken

        into consideration.  Regard must also be had to the fact that

        the Child Welfare Committee [barnevernsnemnda] and the

        County Governor may lawfully maintain a decision to take the

        child into care even if the circumstances on which the

        decision was based have later changed to such an extent that

        the conditions for intervention pursuant to the

        Child Welfare Act are no longer fulfilled.

        After hearing the evidence the Court finds that such material

        conditions [ytre betingelser] obtain as would allow the

        applicant today to give her daughter, born on 7 December 1989,

        an acceptable upbringing.  In this respect there has been an

        improvement in the situation since the child welfare

        authorities took over the care of the daughter.  [The

        applicant] now appears to be permanently settled in Oslo

        together with the father of her oldest child who also lives

        with her.  It appears quite clear that the applicant has great

        concern for the child who has been taken from her.  There can

        hardly be any doubt that it is her intention to arrange things

        as far as possible in order to assume the care of the child,

        if she were to be returned to the mother, to the best of her

        abilities.  These being the facts in the present case, the

        Court must examine whether returning the child from the foster

        parents to her natural mother would entail a real danger of

        harm to the child.

        We have before us a case where the mother had the care taken

        away from her shortly after birth.  The mother has since had

        very little contact with the child and is now a stranger to

        her.

        The experts appointed by the City Court are both in agreement

        that the child would be in a critical situation if returned.

        On this point, Mrs Seltzer, psychologist, states in her expert

        opinion:

            'She is today in the middle of a phase of development of

            her personal autonomy which, in order for her to develop

            without complications, depends on secure conditions and

            stable emotional continuity.  In the short term there can

            be no doubt that the child would react with sorrow and

            emotion if she were now to be removed from her foster

            home.  In the long run it is likely that if she were

            removed at this stage of her development she would carry

            with her into her future life an experience of insecurity

            vis-à-vis other people, including those who represent

            close and dear relations.'

        The experts stress that a return in these circumstances would

        entail a particular risk. This is so because [the child] has

        twice already in her short life experienced a removal from her

        natural mother, first shortly after birth and then at the age

        of seven months when she was moved from the

        [Child Care Centre] to her present foster parents.  She would

        therefore be particularly sensitive to further changes.

        The child now lives under secure and stimulating conditions

        with her foster family and, as the situation appears to the

        Court, it is considered that the foster parents can give her

        a safer upbringing than she would receive from her natural

        mother.  Furthermore, in the Court's view there is a real

        danger that the mother will not be able to deal adequately ...

        with the return of her child in a crisis.  The mother's

        history and previous contact with the public-support system

        indicate that when, in such a pressing and threatening

        situation, she needs help from that system, she will defend

        herself with fear and aggression.  It was in particular

        Mr Reigstad, psychologist, who emphasised this.  During his

        oral explanations to the Court he has maintained the views

        which he expressed in his written opinion but has also in his

        oral explanations submitted further details concerning the

        mother's personality.  He is of the opinion that the mother

        makes a projective identification.  This means that she has

        divided her world into two parts, one with friends and another

        with enemies.  Towards those whom she recognises as friends

        she shows a secure and nice side of herself, whilst to those

        whom she considers to be against her she reacts with deep

        suspicion, fear and aggression.  In Mr Reigstad's opinion, in

        such a situation the mother will consider the public-support

        system to be against her and will meet it with a

        correspondingly negative attitude.  This will place an

        additional burden on the child and harm her permanently in the

        form of a split character.

        The expert witnesses called by the mother have all had a very

        good impression of her.  This goes for Mr Terje Torgersen,

        doctor, Mrs Lise Valla, psychologist, and Mr Reidar Larsen,

        psychiatrist.  A common element for these persons is, however,

        that none of them have had a patient-doctor relationship with

        [the applicant].  Those who have been appointed by the child

        welfare authorities and the Court, Mr Knut Rønbeck,

        psychologist, Mrs Wenche Seltzer, psychologist and

        Mr Ståle Reigstad, psychologist, have all found the mother to

        be more complex.  The Court considers that the appointed

        experts, on the basis of their terms of reference and their

        contacts with [the applicant] and others, have had the best

        opportunity to evaluate her as a person.  The Court has

        therefore considerable hesitations about departing from [their

        assessment].  The Court has examined the [assessment] in the

        light of the other submissions in the case and, not least, the

        basic principles of the Act on the lifting of a care decision.

        In the Court's view the experts have done a very thorough job.

        The conclusions are clear and appear well-founded.  Their

        statements confirm and elaborate the overall impression

        which the Court has formed of the case.  The Court, therefore,

        considering the case as a whole, will base its decision on the

        experts' assessment.  In the Court's opinion, there is nothing

        in the case to suggest that it should depart from their

        assessment.

        In the light of the above the Court finds that, because of the

        likely reactions of the child to changes to her environment,

        it would be a particularly demanding task for the mother to

        assume the care of her.  In view of what is known about the

        mother's present situation and her history it is unlikely that

        she will be able to cooperate with the social assistance

        provided by society without friction. Accordingly, having

        regard to the concrete circumstances of the case as a whole,

        the Court reaches the conclusion that the County Governor's,

        and thus also the social welfare authorities', decision to

        take the child into care should be upheld.

        The next question is whether the decision should be limited to

        the taking into care or should also cover parental

        responsibilities pursuant to section 20 of the

        Child Welfare Act.  In this respect the Court points out that

        it is clear that section 20 has been applied with a view to

        adoption.  The foster parents wish to adopt [the child] and in

        view of the information available to it the Court assumes

        that, unless the present decision is limited to taking into

        care, adoption will be the end result.

        The Court considers that for it to apply ... section 20, it

        must be satisfied that this is necessary in order to secure

        proper care for the child.  What is required will depend on

        the purpose of depriving the parents of their parental

        responsibilities and the situation in general.  If the aim is

        to free the child for adoption, very weighty reasons are

        required.  Section 20 may be applied with a view to adoption

        only in very special circumstances.  It must be a condition

        that the parents will be unable to give the child appropriate

        care and that this would be a permanent situation.  When

        parental responsibilities are taken away with a view to

        adoption the question arises whether the child and the natural

        parents should be permanently deprived of contact with each

        other, with the consequences for reunification which that

        entails.

        In the Court's opinion a condition for the transfer of

        parental responsibilities with a view to adoption is that it

        is obvious that the child cannot in the foreseeable future be

        reunited with the parents.  In the present case, both

        appointed experts have recommended to the Court that the

        child's placement in the foster home be made permanent.  One

        of [them], [Mr] Reigstad, states in this respect:

            `Assessment of the question of parental responsibilities

            and adoption

            When considering this question in the present case we

            find, in addition to the general consideration that in

            such cases adoption is always an advantage for the child,

            concrete and real reasons militating in favour of

            adoption.

            The applicant's problems are in my view long-standing and

            well established in her overall character.  They can be

            documented back to 1977 and have been almost constantly

            present during her entire adult life.  It follows that she

            is unlikely to solve them in the foreseeable future and

            that the situation therefore has a certain permanent

            character.

            In addition, were the applicant to be given access to the

            foster home she would in all likelihood destroy the home's

            security and make it unsuitable as a foster home for the

            child.  This must be seen in the light of the crusade the

            applicant has led over the last years against the child

            care authorities and of the fact that she has clearly

            stated that her aim is to get her daughter back.  In

            addition, the fact that she earlier hid her son from the

            child care authorities in Bergen and was supported in this

            by her lawyers in Oslo on the whole gives very little

            reason for optimism in respect of her future cooperation

            with the foster home.

            I have therefore reached the conclusion that it would be

            in the interest of the daughter to remain in the

            foster home and that permission be granted to adopt her so

            that [the foster parents] also acquire the parental

            responsibilities.

            Having regard to my terms of reference, my conclusion is

            accordingly:

            Conclusion

            A.  If the daughter were to be reunited with her natural

            mother there is a considerable danger that she would not

            recover from her separation crisis, which would cause her

            permanent harm.  There are also objective grounds for

            doubting that the mother would be capable of ensuring that

            the daughter receives such necessary medical and

            psychological assistance as she needs.  For these reasons

            I cannot recommend to the Court that the child and her

            natural mother be reunited.

            B.  I assume that the aim of letting a natural mother keep

            her parental responsibilities in respect of a child placed

            in a foster home is to allow her access to the home and to

            participate in, or take, important decisions regarding the

            child.  In the circumstances, access to the foster home or

            even lifting of the secrecy of the home's address would

            destroy the security of the foster parents and make the

            home unsuitable as a foster home.  In both the short and

            the long run this would be detrimental to the child.

            C.  In my view the best solution from the child's point of

            view would be to deprive the mother of her parental

            responsibilities and to allow the foster family to adopt

            the child.  This would secure the child a stable and

            appropriate upbringing and would bind the child to its new

            family without reservation.'

        In this regard, the other expert, [Mrs] Seltzer, states:

            `If the child remains in the foster home and the

            foster parents continue to act as the [child's]

            foster parents, I consider that it would be impractical

            and possibly complicating if a person other than the

            foster parents were to assume parental responsibilities.

            I consider also that it would be in the best interests of

            the child for her to belong, fully, formally and

            uninterruptedly to one place.  In addition one cannot

            disregard the fact that an arrangement dividing the care

            and the parental responsibilities may create insecurity

            and represent a potential source of conflict between the

            adults, with the child in between.  In certain

            circumstances it can also be difficult to manage the daily

            care in a satisfactory manner if the parental

            responsibilities are assumed by another party.  If the

            Court nevertheless decides to split the daily care and

            parental responsibilities, this requires good cooperation

            between the parties, something which at present cannot be

            taken for granted having regard to the fact that the

            foster parents and the natural mother have not met each

            other.  I recommend that the daily care and the parental

            responsibilities be entrusted to those who have the daily

            care of the child.'

        Both experts, in their oral submissions to the Court, have

        stated that their views have been strengthened by the

        submissions made during the examination of the case.

        As regards the question whether the mother would be able to

        give the child proper care on a permanent basis, [Mr] Reigstad

        states that the mother lacks today and will lack in the

        foreseeable future the necessary ability to do so.

        [Mr] Rønbeck was of the same opinion when he submitted his

        report in connection with the case.  [Mrs] Seltzer for her

        part is of the opinion that today the mother is probably

        capable, in favourable and clear circumstances, of taking care

        of the child but the mother's situation is uncertain.  She

        suggests therefore that it would be in the child's interests

        to stay where she is.

            As the Court understands the expert evidence, it is

        obvious that the mother could not properly take care of the

        child on a permanent basis.  Also as regards the question of

        parental responsibilities, the Court attaches decisive weight

        to the experts' assessment.  The Court further agrees with the

        experts that allowing the [applicant] access to the

        foster home would entail a real danger of conflict between the

        foster parents and the natural mother.  The Court refers in

        this connection to what has been said about the mother's ways

        of reacting.  It follows that there are strong and real

        factors militating in favour of adoption.  The special

        interests which might weigh against adoption in the present

        case cannot in the opinion of the Court be decisive.  The

        Court here points out that the natural mother is a stranger to

        the child, who, as far as the Court has been informed, has not

        had any particular contact with the mother.  After a general,

        concrete evaluation the Court has accordingly reached the

        conclusion that the decision concerning the transfer of

        parental responsibilities shall also be maintained."

28.     On 28 May 1991 the applicant lodged an appeal with the

Supreme Court.  The defendant Ministry filed a reply on 19 June 1991.

On 23 August 1991 the applicant was requested to submit further

observations by 6 September 1991, which she did on 5 September 1991.

On 19 September 1991 the Appeals Committee of the Supreme Court

(Høyesteretts Kjæremålsutvalg) refused leave to appeal.

    D.  Subsequent developments

29.     In the spring of 1991 the applicant moved to Nørreballe,

Denmark.  She now lives there with C.'s father.  C. now lives near

Copenhagen where he works.  The applicant gave birth to a

second daughter on 14 December 1991.  According to the

Danish authorities this child has developed well.  A second son was

born in 1993.  The applicant's daughter S. is still living with her

foster parents.  No decision concerning her adoption has yet been

taken.

        A report of 30 January 1994 by Mrs An-Magritt Aanonsen,

psychologist, which is favourable both to the applicant and to the

foster parents, concluded:

        "1. Both mother and child today seem to be doing well.  The

        mother is cohabiting in a steady relationship with the father

        of three of her four children.  She seems to give satisfactory

        care to her children and copes well with her everyday

        situation and has managed to handle problems which have arisen

        without any special help.

        The child has formed a strong primary attachment to her

        foster parents who provide her with good conditions for

        growing up and who appear genuinely fond of her and very

        committed.

        2. In the previous section, I discussed the consequences of

        establishing a right of contact.  Given the child's situation

        today it is not desirable to establish a right of access at

        present unless there is some change in the conditions of care

        placement.  It is desirable for the child to have the greatest

        possible continuity and stability, something that is best

        achieved by permanent placement with her present carers.

        3. I have also discussed above the consequences of

        establishing a right of access with respect to the child's

        care position and the importance this will have for her

        development.  I have indicated a type of arrangement that it

        would be possible to introduce without any consequences for

        the care situation.

        In conclusion, I would stress that one thing we know today is

        that it is important for a child's development for him or her

        to have stability, continuity and carers who take

        responsibility for and are fond of it and help it affirm

        itself as a person.  It is in the child's interest that the

        carers should be confident that it is they who take decisions

        about important events in the child's life.  This must be

        taken into account if a right of access or visit is

        established."

II.     Relevant domestic law

    A.  The 1953 Child Welfare Act

       1. Compulsory care measures

30.     The public-care measures at issue in the present case were

based on provisions set out in the Child Welfare Act of 17 July 1953

("the 1953 Act"), which was replaced by new legislation on

1 January 1993 (see paragraphs 41-45 below).

31.     The principle underlying the 1953 Act, which was applicable in

this case, was that, generally speaking, it was in the best interests

of a child for it to be cared for by its natural parents.  If the child

had been taken into care, the best solution would in principle be for

the natural parents to remain in contact with it and retain parental

responsibilities.

32.     Under section 16 (a) of the 1953 Act, protective measures could

be taken if a child lived in such conditions that its physical and

mental health was likely to be impaired or was seriously endangered.

It was established case-law (see the Supreme Court's judgment of

6 November 1986, Norsk Retstidende ("NRt") 1986, p. 1189, and judgment

of 21 January 1987, NRt 1987, p. 52) that such a measure could be taken

not only where such harm had materialised but also where there was a

clear risk of harm.  Consequently, under this provision, a child could

be taken into care immediately after birth.

33.     Section 18 of the Act provided for several preventive measures

(forebyggende tiltak), such as placing the child's home under

supervision, furnishing financial assistance, ensuring placement in a

kindergarten or a school, or providing care and treatment.

        If such preventive measures were considered to be ineffective

or had proved to be of no avail and leaving the child in its current

situation pending care proceedings would entail a risk of harm to

the child, section 11 of the Act empowered the Health and Social Board

(helse- og sosialstyret), hereinafter "the Board", or if necessary its

chairperson, to take a child into care on a provisional basis.  Where

such an interim measure had been taken, the case had to be brought

before the Board, often represented by its

Client and Patient Committee.  Provided that the requirements of

section 16 were fulfilled, the Board or the Committee could decide to

take the child into public care (overta omsorgen) pursuant to

section 19 of the Act.  In practice the child was usually transferred

to a suitable child care centre or a foster family.

34.     The 1953 Act did not contain any provision expressly empowering

the authorities to restrict the parents' access to their child where

the child had been taken into public care.  However, according to an

authoritative interpretation of section 19 by the Ministry of Justice,

Department of Legislation (Justisdepartementets lovavdeling), the Board

or the Committee could also determine the extent of the parents' right

of access and whether or not the address of the foster family should

be kept secret (see the Department's statements of 28 October 1964 and

14 March 1966).

35.     Where the Board or the Committee had decided to take a child

into care in accordance with the above rules they could also decide,

pursuant to section 20 of the Act, to deprive the natural parents of

their parental responsibilities.  Section 20 did not set out the

circumstances in which such a measure could be taken but, according to

the Supreme Court's case-law, it should be supported by weighty

reasons.  A decision to deprive the natural parents of their parental

responsibilities could not be taken unless the long-term consequences

of alternative arrangements were considered (see the Supreme Court's

judgments of 20 December 1990, NRt 1990, p. 1274, and of 23 May 1991,

NRt 1991, p. 557). Measures under section 20 were often taken with a

view to adoption by the foster parents.  Adoption represented a final

break in the legal relations between the child and its natural parents.

        The notion of parental responsibilities, which is defined in

Chapter 5 of the Child Act (Barnelova) no. 7 of 7 April 1981, comprises

two elements: firstly a duty of care (omsut og omtanke), and secondly

a duty and a right to decide, within certain limits, for the child in

its personal matters (personlege tilhøve) (sections 30 to 33).  The

latter include decisions on the child's place of residence, general

education, religious and civic education, medical and dental treatment,

consent to marriage, adoption and employment (Lucy Smith and

Peter Lødrup in Barn og Foreldre, 4th edition, Oslo 1993, pp. 67

and 71).  In the present judgment the right of the parent to decide on

the child's personal matters is referred to as "parental rights".

36.     Compulsory care measures under the 1953 Act were to be lifted

when the child was 21 years of age or when there were no longer any

reasons to maintain the measures (section 48).

        2.  Administrative and judicial remedies against compulsory

            care measures

37.     A decision by the Board or the Committee to take a child into

care, to deprive the parents of their parental responsibilities or to

restrict access under the 1953 Act could be appealed against to the

County Governor by any person affected by the measure (sections 52 and

54 of the Act).  Orders on access could in addition be appealed against

to the Ministry of Child and Family Affairs (section 53 (2) of the

1953 Act).

38.     Decisions by the County Governor under the 1953 Act regarding

care decisions and the deprivation of parental responsibilities, but

not access, could form the subject of an appeal to the City or

District Court under a special procedure provided for in Chapter 33 of

the Code of Civil Procedure.  The court had jurisdiction to review all

aspects of the case (Article 482).

        An appeal against a judgment by the City or District Court lay

directly to the Supreme Court (Article 485).  This was to give priority

to the kind of cases to which Chapter 33 of the Code applied, as is

illustrated by Article 478 of the Code which provided that the

proceedings must be dealt with speedily.

39.     On the other hand, appeals to the courts against decisions by

the County Governor restricting access were governed by the ordinary

procedure laid down in Chapter 30 of the Code of Civil Procedure and

the general principles of judicial review of administrative decisions.

Such review covered not only questions of fact and of law but also to

some extent the exercise of administrative discretion (for a more

detailed description, see the E. v. Norway judgment of 29 August 1990,

Series A no. 181-A, pp. 18-19, paras. 40-42).

40.     If an appeal by the natural parents to have the care terminated

had been rejected, they were not entitled to apply for fresh review

proceedings until one year after the prior decisions had become final

(section 54 of the 1953 Act).  However, no such right to review applied

if the child had been adopted in the meantime, as adoption meant a

definite break between the child and its natural parents.

    B.  The Child Welfare Services Act 1992

41.     On 1 January 1993 the 1953 Act was replaced by the

Child Welfare Services Act no. 100 of 17 July 1992 ("the 1992 Act").

Among other reforms the 1992 Act introduced a new adjudicating body in

the child welfare administration, namely the County Social Welfare

Board ("the County Board"), which was established in accordance with

the Social Services Act (sosialtjenesteloven) no. 81 of

13 December 1991.  The major reason for this change was to reinforce

the legal protection of the parents and the child.

        Like the 1953 Act, the 1992 Act stresses that "crucial

importance shall be attached to framing measures which are in the

child's best interest" (section 4-1).

42.     Although the 1992 Act contains more detailed provisions, the

conditions for compulsory care measures and deprivation of parental

responsibilities are essentially the same as those that applied under

the 1953 Act.  The Supreme Court's case-law predating the 1992 Act

remains applicable.

43.     Under the 1992 Act the question of adoption of a child who has

been taken into care is a separate issue.  If the parents object to

adoption, such a measure cannot be taken unless the County Board gives

its consent.  Under the more detailed provisions of the 1992 Act

(section 4-20 (2) and (3)), the County Board may only give its consent

if the parents will be permanently unable to provide the child with

reasonable care, or if removing the child may lead to serious problems

for him or her because of his or her attachment to the persons and the

environment where he or she is living.  In addition, an adoption must

be in the child's best interest and the prospective adoptive parents

must have been the child's foster parents and have shown themselves fit

to bring up the child as their own.  According to the preparatory works

this implies that consent to adoption should not be given unless the

child has lived in the foster home for some time.

44.     Unlike the 1953 Act, the 1992 Act contains in section 4-19 (1)

a provision to the effect that both the child and the parent have a

right of access unless the County Board decides otherwise in the

child's interests.  The preparatory works of the new Act emphasise the

importance of contact between the child and its parents.

45.     The decisions of the County Board may be contested before the

courts under the special provisions of Chapter 33 of the

Code of Civil Procedure (section 9-10 of the Social Services Act).  The

system of judicial review of public-care decisions is amended on

two major points.

        Firstly, whereas judicial review of care decisions and

deprivation of parental responsibilities under the 1953 Act presupposed

a prior decision by the County Governor, an appeal against such

decisions taken by the County Board under the 1992 Act lies directly

to the City Court.

        Secondly, whilst the special Chapter 33 review did not apply

to access restrictions under the 1953 Act, it now does when such

restrictions have been imposed under the 1992 Act (section 7-1).

PROCEEDINGS BEFORE THE COMMISSION

46.     In her application to the Commission of 10 October 1990

(no. 17383/90), Ms Johansen complained that there had been a violation

of her right to respect for family life as guaranteed by Article 8 of

the Convention (art. 8) on account of the order to take her daughter

into public care, the deprivation of her parental rights, the

termination of her access to her daughter, the excessive length of the

proceedings and their lack of fairness.  She also invoked Article 6 of

the Convention (art. 6) (right to a fair hearing within a reasonable

time).  In addition, she complained that, contrary to Article 13

(art. 13), she had not been afforded an effective remedy in respect of

her complaint under Article 8 of the Convention (art. 8).

47.     On 13 October 1993 the Commission declared the application

admissible.  In its report of 17 January 1995 (Article 31) (art. 31),

the Commission expressed the opinion that there had been no violation

of Article 8 of the Convention (art. 8) with regard to the taking of

her daughter into care and the maintenance in force of the care

decision concerned (unanimously); that there had been a violation of

Article 8 (art. 8) as regards the decision depriving the applicant of

her parental rights and access (by eleven votes to two); that no

separate issue arose either under Article 6 (art. 6) (by twelve votes

to one) or Article 13 (art. 13) (unanimously).  The full text of the

Commission's opinion and of the two partly dissenting opinions

contained in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1.  For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT

48.     At the hearing on 23 January 1996 the Government, as they had

done in their memorial, invited the Court to hold that there had been

no violation of Article 6 or 8 of the Convention (art. 6, art. 8).

49.     On the same occasion the applicant reiterated her request to

the Court stated in her memorial to find that there had been a breach

of Articles 6 and 8 (art. 6, art. 8).

AS TO THE LAW

I.      ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)

50.     The applicant alleged that the taking into care of her daughter

S., the refusal to terminate the care and the deprivation of her

parental rights and access gave rise to violations of Article 8 of the

Convention (art. 8), which provides:

        "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."

51.     The Government disputed the above contention.  The Commission

considered that there had been no violation with regard to the taking

into public care and the refusal to terminate the care, but that there

had been a violation with regard to the deprivation of the applicant's

parental rights and access.

   A.   Was there an interference with the applicant's right to

        respect for family life?

52.     The Court recalls that the mutual enjoyment by parent and child

of each other's company constitutes a fundamental element of family

life and that domestic measures hindering such enjoyment amount to an

interference with the right protected by Article 8 (art. 8)

(see, amongst others, the McMichael v. the United Kingdom judgment of

24 February 1995, Series A no. 307-B, p. 55, para. 86).  The impugned

measures, as was not disputed, evidently amounted to interferences with

the applicant's right to respect for her family life as guaranteed by

paragraph 1 of Article 8 of the Convention (art. 8-1).  Such

interference constitutes a violation of this Article (art. 8) unless

it is "in accordance with the law", pursues an aim or aims that are

legitimate under paragraph 2 of Article 8 (art. 8-2) and can be

regarded as "necessary in a democratic society".

    B.  Were the interferences justified?

        1. "In accordance with the law"

53.     It was undisputed before the Commission and, with one

exception, before the Court that the impugned measures had a basis in

national law and, to that extent, the Court is satisfied that such was

the case.

54.     The exception was an allegation by the applicant - in her

written pleadings dealing with the necessity of the interference - to

the effect that the provisional taking into care of her daughter had

failed to fulfil the condition as to risk of harm in section 11 of the

Child Welfare Act 1953 (see paragraphs 12 and 33 above).

55.     The Government maintained that the measure was in accordance

with Norwegian law.

56.     The Court sees no reason to doubt that the provisional taking

into care of the daughter had a basis in Norwegian law; it observes

that the applicant, although she could have done so, did not appeal

against that measure but only challenged the subsequent decision to

take into care on a permanent basis, which measure was upheld by the

City Court as being lawful.

57.     Before the Commission the applicant had argued that as the

relevant law (see paragraphs 32-35 above) was framed in vague terms its

effects were unforeseeable and it thus failed to satisfy one of the

quality requirements implied by the expression "in accordance with the

law" (see, for instance, the Margareta and Roger Andersson v. Sweden

judgment of 25 February 1992, Series A no. 226-A, p. 25, para. 75).

58.     The Commission and the Government disagreed.  They considered

that the law in question was rather broad in its terms but that it was

impossible to formulate legal rules with absolute precision in this

field.  Also, since the imposition of measures under that law was to

a large extent subject to judicial review, there were important

safeguards against arbitrariness.

59.     Before the Court the applicant did not pursue her submission

that the relevant domestic law was not foreseeable for the purposes of

paragraph 2 of Article 8 (art. 8-2).

        2.  Legitimate aim

60.     Those who appeared before the Court agreed that the relevant

domestic law was clearly intended to protect the interests of children

and that there was nothing to suggest that it was applied for any other

purpose.

61.     The Court is satisfied that the contested measures were aimed

at protecting the "health" and "rights and freedoms" of the applicant's

daughter and thus pursued legitimate aims within the meaning of

paragraph 2 of Article 8 (art. 8-2).

        3. "Necessary in a democratic society"

62.     The applicant disputed that the interference with her right to

respect for family life had been "necessary".  In this connection she

challenged a number of aspects of the domestic decisions, namely

(1) the decision-making process before the Committee

(see paragraphs 14-17 above); (2) the merits of the taking into care

of her daughter S. and the maintenance in force of the care decision;

(3) the merits of the deprivation of her parental rights and access;

and (4) the length of the entire proceedings.

63.     The Government contested the applicant's allegations.  The

Commission disagreed on the first and second points but shared the

applicant's view as regards the third point, taking into account the

argument concerning the length of the proceedings.

64.     In determining whether the impugned measures were "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 purposes of paragraph 2 of Article 8

(art. 8-2) (see, inter alia, the Olsson v. Sweden (no. 1) judgment of

24 March 1988, Series A no. 130, p. 32, para. 68).

        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 traditions relating to the role

of the family and to State intervention in family affairs and the

availability of resources for public measures in this particular area.

However, consideration of what is in the best interest of the child is

in any event 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 (see the Olsson v. Sweden (no. 2) judgment

of 27 November 1992, Series A no. 250, pp. 35-36, para. 90), 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 that those authorities have taken in the

exercise of their power of appreciation (see, for instance, the

Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A,

p. 20, para. 55).

        The margin of appreciation so to be accorded to the competent

national authorities will vary in the light of the nature of the issues

and the seriousness of the interests at stake (see the Sunday Times

v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A

no. 30, pp. 35-37, para. 59).  Thus, the Court recognises that the

authorities enjoy a wide margin of appreciation in assessing the

necessity of taking a child into care.  However, a stricter scrutiny

is called for both of any further limitations, such as restrictions

placed by those authorities on parental rights and access, and of any

legal safeguards designed to secure an effective protection of the

right of parents and children to respect for their family life.  Such

further limitations entail the danger that the family relations between

the parents and a young child are effectively curtailed.

        It is against this background that the Court will examine

whether the measures constituting the interferences with the

applicant's exercise of her right to family life were "necessary".

        (a) The decision-making process

65.     The applicant complained that the hearing before the Committee

had been inadequate.  Not only had the authorities been

over-represented, but their expert, Mr Rønbeck, had had a more

favourable position at the hearing than the psychologists whom the

applicant had wanted to be present: Mrs Valla had not been summoned and

Mr Larssen had not been allowed to address the Committee

(see paragraph 17 above).  In addition, the fact that the hearing had

continued until late at night had adversely affected the applicant's

possibility of presenting her views in a fully satisfactory manner.

66.     The Court notes that the Committee took its decision of

3 May 1990 after hearing the views of the applicant and her counsel.

Mr Rønbeck had moreover been appointed with the applicant's agreement

and it was only after he had presented his opinion that she requested

the appointment of another psychologist, Mrs Valla.  Although the

latter was not heard directly by the Committee, her report was

submitted to it (see paragraph 17 above).

        In the circumstances, there is nothing to suggest that the

decision-making process leading to the adoption of the impugned

measures by the Committee was unfair or failed to involve the applicant

to a degree sufficient to provide her with the requisite protection of

her interests (cf. the W. v. the United Kingdom judgment of

8 July 1987, Series A no. 121, pp. 28-29, paras. 64-65; and the

above-mentioned McMichael judgment, pp. 55 and 57, paras. 87 and 92).

In addition, it is to be noted that, before deciding the applicant's

appeals, the County Governor and the City Court heard the applicant and

her counsel (see paragraphs 24 and 27 above).  The Court therefore

agrees with the Government and the Commission that the procedure did

not give rise to a breach of Article 8 (art. 8).

        (b) The merits of the impugned measures

        (i) The taking into care and the refusal to terminate the care

67.     As to the taking into care, the applicant maintained that the

Committee's majority had wrongly relied on Mr Rønbeck's assessment

(see paragraphs 14 and 17 above).  In concluding that she was incapable

of assuming the care of her daughter, he had over-emphasised the

importance of her difficult past in Bergen.  The minority had correctly

based its opinion on the assessment by the psychologist Mrs Valla, who,

in the light of the improvements in the applicant's situation after she

moved to Oslo, had considered her suitable as a carer, as was confirmed

by the subsequent opinions of two other psychologists, Mrs Seltzer and

Mrs Aanonsen (see paragraphs 18, 27 and 29 above).  Indeed, even the

City Court had found her suitable when adjudicating the case

(see paragraph 27 above).

        According to the applicant, any uncertainty as to her ability

to care for her daughter could have been reduced by resorting to

preventive care measures.  For instance, the authorities could have

acceded to the applicant's request for a place in a mother-and-child

unit, which would have enabled her to prove she was capable of assuming

care while under the supervision of the child welfare authorities.  Any

lack of cooperation between her and the child welfare authorities in

Bergen had stemmed from her extremely difficult situation while living

there and did not mean that she would not cooperate with the

authorities in Oslo; on the contrary she had declared her willingness

to do so.

68.     Also the County Governor, in rejecting the applicant's appeal

against the care decision, had in her view attached excessive weight

to her past in Bergen and too little to the improvements in her ability

to provide care after her move to Oslo.

69.     She further maintained that the City Court's ruling had the

undesirable consequence that a new-born baby placed in a foster home

could never be reunited with his or her natural parent even though the

latter, as here, was deemed capable of assuming care.  Since care

measures were in principle to be temporary in character, the

authorities should instead have sought gradually to return the child

to the applicant.

70.     The Government and the Commission were of the view that both

the taking into care and the maintenance in force of the care decision

were "necessary" within the meaning of paragraph 2 of Article 8 of the

Convention (art. 8-2).

71.     The Court observes that the Committee Chairperson's decision

of 13 December 1989 to take the applicant's daughter S. provisionally

into care was taken on the grounds that the applicant, in view of her

physical and mental state at the time, was deemed unable to provide

satisfactory care for her daughter, who would thus be at risk if she

were to remain with the applicant.  The Chairperson had regard not only

to statements by medical officers in Oslo but also to those of the

child welfare authorities in Bergen, which, after several years'

concern for the applicant's son C., had provisionally taken him into

care and had contemplated such a measure also with regard to the

daughter S. immediately after her birth (see paragraph 12 above).

        Furthermore, in deciding to take S. into care on a permanent

basis, the Committee attached decisive weight to Mr Rønbeck's

assessment that the applicant suffered from serious unsolved mental

problems impairing her social skills and her ability to take care of

children.  It considered that, if S. were to remain with the applicant,

it was likely that the child would live under such conditions as would

damage her physical and mental health.  Having failed to understand her

son C.'s need for care, the applicant had opposed attempts by the

authorities to assist her in this matter.  The fact that preventive

care measures in respect of her son had been ineffective suggested that

this kind of measure would also be unsuccessful with regard to her

daughter.  There was little reason to believe that the applicant would

be motivated to accept treatment.  The child was at a stage of her

development where it was crucial that she should become attached to

stable and secure persons without fearing that she would be moved.  In

these circumstances, the Committee considered, it was in her best

interests to be taken into care (see paragraphs 14 and 17 above).

        Moreover, the County Governor's decision of 9 November 1990

upholding the Committee's decision to take S. into care was based

essentially on the same reasons (see paragraph 24 above).

72.     In its decision of 16 April 1991 the City Court found that the

material conditions (ytre betingelser) had improved to a point where

the applicant was able to provide S. with a satisfactory upbringing but

held nevertheless that the measure should remain in force.  It

considered that, since S. had been taken into care shortly after birth,

had had very little contact with her mother and had already been moved

twice, returning her to the mother would entail a particular risk to

her development.  As the child was in the middle of a phase of

development of personal autonomy, it was crucial that she live under

secure and emotionally stable conditions, such as obtained in the

foster home.  Moreover, at this critical stage of her upbringing, there

was a real danger that the applicant would be unable to deal adequately

with the child's reactions to the change of environment

(see paragraph 27 above).

73.     In the light of the foregoing, the Court is satisfied that the

taking of the applicant's daughter S. into care and the maintenance in

force of the care decision concerned were based on reasons which were

not only relevant but also sufficient for the purposes of paragraph 2

of Article 8 (art. 8-2).  The measures were supported by painstaking

and detailed assessments by the experts appointed by the Committee and

the City Court.  The finding of fact being primarily a matter for the

national authorities, the Court will not substitute its views for

theirs as to the relative weight to be given to the expert evidence

adduced by each party (see paragraph 64 above).  It considers that in

taking the above care measures the national authorities acted within

the margin of appreciation afforded to them in such matters.

Accordingly, these measures did not constitute a violation of

Article 8 (art. 8).

        (ii) The deprivation of parental rights and access

74.     In the applicant's and the Commission's opinion, taking into

care should in principle be a temporary measure to be discontinued as

soon as circumstances permit.  The deprivation of the applicant's

parental rights and access had a permanent character and could only be

considered "necessary" within the meaning of Article 8 para. 2

(art. 8-2) if supported by particularly strong reasons.  However, the

applicant's state of health had not been such that she would have been

permanently unable to care for her daughter.  The argument that the

applicant might disturb the calm and stable foster-home environment

could not be decisive as access arrangements could have been

implemented outside the foster home.  Having regard to the improvements

in the applicant's situation and the irreversible effects which the

deprivation of the applicant's parental rights and access had on her

enjoyment of family life with her daughter, the measures could not be

said to be justified.

75.     In addition, the applicant disputed that the deprivation of her

parental rights and access were in her daughter's interest.  On the

contrary, the mother's contact with her child during the period

preceding her placement with the foster parents had been positive and

such contact could have contributed to a stable development of the

child's identity had it been allowed to continue.  The applicant

further stressed that the measures had not been based on proper and

repeated reviews of the specific circumstances of her case but on a

general and prevailing view that adoption offered better prospects for

the child's welfare than long-term fostering.  Having been taken

primarily to facilitate adoption, the measures had seriously and

permanently prejudiced the applicant's interests by depriving her of

any prospects of being reunited with her daughter.

76.     The Government argued that in cases such as the present one the

necessity test to be applied under Article 8 of the Convention

(art. 8), rather than attempting to strike a "fair balance" between the

interests of the natural parent and those of the child, should attach

paramount importance to the best interests of the child, a principle

which was firmly rooted not only in the laws of the

Council of Europe member States but also in the Organisation's own

policies (see Council of Europe: Committee of Ministers

Resolution (77) 33 on placement of children, adopted on

3 November 1977; 16th Conference of European Ministers of Justice,

Lisbon, 21-22 June 1988, Conclusions and resolutions of the conference,

pp. 5-6).  In this connection the Government referred also to the

preamble to the 1996 European Convention on the Exercise of

Children's Rights and to Articles 3, 9 paras. 1 and 3, and 21 of the

1989 United Nations Convention on the Rights of the Child.  In any

event, so the Government submitted, Article 8 of the Convention

(art. 8) should not be interpreted so as to protect family life to the

detriment of the child's health and development.

77.     In the instant case, they maintained, the reasons mentioned

above for the taking into care and for maintaining the care decision

concerned in force all suggested that it was necessary to place the

child permanently in a foster home.  There was strong scientific

evidence indicating that the placement was more likely to be successful

if the child was adopted by the foster parents.

        Reuniting the applicant with her daughter would have required

extensive preparation presupposing good cooperation between all the

parties involved.  However, the applicant had shown an extremely

hostile attitude towards the child welfare authorities in Bergen and

had actively obstructed their implementation of the care decision in

respect of her son by attempting to take him with her to Oslo.  The

competent authorities had therefore considered that there was a danger

that she might disturb the daughter's development in the foster home

and try to abduct her if given access.  In these circumstances, having

regard to their margin of appreciation, the relevant authorities were

entitled to think that it was necessary for the protection of the

child's best interests to deprive the applicant of her parental rights

and access.

78.     The Court considers that taking a child into care should

normally be regarded as a temporary measure to be discontinued as soon

as circumstances permit and that any measures of implementation of

temporary care should be consistent with the ultimate aim of reuniting

the natural parent and the child (see, in particular, the

above-mentioned Olsson (no. 1) judgment, p. 36, para. 81).  In this

regard, a fair balance has to be struck between the interests of the

child in remaining in public care and those of the parent in being

reunited with the child (see, for instance, the above-mentioned

Olsson (no. 2) judgment, pp. 35-36, para. 90; and the above-mentioned

Hokkanen judgment, p. 20, para. 55).  In carrying out this balancing

exercise, the Court will attach particular importance to the best

interests of the child, which, depending on their nature and

seriousness, may override those of the parent.  In particular, as

suggested by the Government, the parent cannot be entitled under

Article 8 of the Convention (art. 8) to have such measures taken as

would harm the child's health and development.

        In the present case the applicant had been deprived of her

parental rights and access in the context of a permanent placement of

her daughter in a foster home with a view to adoption by the

foster parents (see paragraphs 17 and 22 above).  These measures were

particularly far-reaching in that they totally deprived the applicant

of her family life with the child and were inconsistent with the aim

of reuniting them. Such measures should only be applied in exceptional

circumstances and could only be justified if they were motivated by an

overriding requirement pertaining to the child's best interests

(see, mutatis mutandis, the Margareta and Roger Andersson judgment

cited above, p. 31, para. 95).

79.     The question whether the deprivation of the applicant's

parental rights and access was justified must be assessed in the light

of the circumstances obtaining at the time when the decisions were

taken and not with the benefit of hindsight.  That question must

moreover be considered in the light of the reasons mentioned in

paragraphs 71 to 73 above for taking the daughter into care and for

maintaining the care decision in force.

80.     It is also relevant that it was in the child's interest to

ensure that the process of establishing bonds with her foster parents

was not disrupted.  As already mentioned, the girl, who had been taken

into care shortly after birth and had already spent half a year with

temporary carers before being placed in a long-term foster home, was

at a stage of her development when it was crucial that she live under

secure and emotionally stable conditions.  The Court sees no reason to

doubt that the care in the foster home had better prospects of success

if the placement was made with a view to adoption (see paragraphs 17

and 27 above).  Furthermore, regard must be had to the fact that the

child welfare authorities found that the applicant was not

"particularly motivated to accept treatment" (see paragraph 17 above)

and even feared that she might take her daughter away; for instance,

she had on one occasion tried to disappear with her son and on another

occasion she had failed to inform the authorities that he had run away

from the children's home to join her (see paragraph 16 above).

81.     In the Court's opinion, the above considerations were all

relevant to the issue of necessity under paragraph 2 of Article 8

(art. 8-2).  It remains to be examined whether they were also

sufficient to justify the Committee's decision of 3 May 1990 to cut off

the contact between the mother and the child (see paragraphs 17

and 22 above).

82.     In the first place, it must be observed that during the period

between the birth of the applicant's daughter on 7 December 1989 and

the Committee's decision of 3 May 1990, the applicant had had access

to her child twice a week in a manner which does not appear to be open

to criticism (see paragraph 16 above).

83.     Secondly, as indicated in the Committee's decision of

3 May 1990, the applicant's lifestyle had by then already somewhat

changed for the better (see paragraph 17 above).

        It was rather the difficulties experienced in the

implementation of the care decision concerning her son which provided

the reason for the authorities' view that the applicant was unlikely

to cooperate and that there was a risk of her disturbing the daughter's

care if given access to the foster home (see paragraphs 16

and 17 above).

        However, it cannot be said that those difficulties and that

risk were of such a nature and degree as to dispense the authorities

altogether from their normal obligation under Article 8 of the

Convention (art. 8) to take measures with a view to reuniting them if

the mother were to become able to provide the daughter with a

satisfactory upbringing.

84.     Against this background, the Court does not consider that the

decision of 3 May 1990, in so far as it deprived the applicant of her

access and parental rights in respect of her daughter, was sufficiently

justified for the purposes of Article 8 para. 2 (art. 8-2), it not

having been shown that the measure corresponded to any overriding

requirement in the child's best interests (see paragraph 78 above).

        Therefore the Court reaches the conclusion that the national

authorities overstepped their margin of appreciation, thereby violating

the applicant's rights under Article 8 of the Convention (art. 8).

        In this connection it should be noted that less than a year

after 3 May 1990 the City Court found that the applicant's material

conditions had improved to the point where she would have been able to

provide her daughter with a satisfactory upbringing.  An important

consideration for the City Court in refusing to terminate care was the

lack of contact between the applicant and her daughter pending the

proceedings, which state of affairs resulted directly from the decision

of 3 May 1990 to deprive the applicant of her access (see

paragraph 27 above).

85.     In view of the reasons set out in paragraphs 82 to 84 above,

the Court does not consider that the applicant's allegation that the

length of the care proceedings was excessive (see paragraph 62 above)

gives rise to any issue under Article 8 (art. 8).

II.     ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION

        (art. 6-1)

86.     The applicant also complained about the length of the

proceedings under Article 6 para. 1 of the Convention (art. 6-1),

which, in so far as relevant, reads:

        "In the determination of his civil rights and obligations ...,

        everyone is entitled to a ... hearing within a reasonable time

        by [a] ... tribunal ..."

87.     The Government disagreed with the applicant, whereas the

Commission, having taken the length of the proceedings into account

under Article 8 (art. 8) (see paragraph 63 above), concluded that no

separate issue arose under Article 6 (art. 6).

88.     The Court observes that the proceedings leading to the

deprivation of parental rights and access commenced before the

Committee on 13 December 1989 and ended when the Supreme Court refused

leave to appeal on 19 September 1991 (see paragraphs 12 and 28 above).

They thus lasted altogether one year and nine months.

        The Court shares the applicant's and the Commission's opinion

that, in view of what was at stake for the applicant and the

irreversible and definitive character of the measures concerned, the

competent national authorities were required by Article 6 para. 1

(art. 6-1) to act with exceptional diligence in ensuring the progress

of the proceedings.  However, it does not find that they failed to

discharge their obligations in this respect.

        In the Court's opinion the issues to be determined by the

relevant administrative and judicial authorities were of a certain

complexity.  The proceedings comprised a thorough examination of the

merits of the impugned care measures by the Committee's Chairperson,

the Committee itself, the County Governor and the City Court and then

a summary examination by the Supreme Court which refused leave to

appeal (see paragraphs 12, 17, 24, 27 and 28 above).  Thus

three administrative and two judicial levels were involved and there

is nothing to suggest, as was also conceded by the Commission, that any

of these separately failed to act with the diligence required in the

particular circumstances.  Nor does it appear, having regard to the

complexity of the case, that the duration of the proceedings as a whole

exceeded a reasonable time.

89.     Accordingly, the Court finds no breach of Article 6 of the

Convention (art. 6) on account of the length of the proceedings.

III.    ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)

90.     Before the Commission the applicant alleged that there had been

a breach of Article 13 of the Convention (art. 13), which reads:

        "Everyone whose rights and freedoms as set forth in [the]

        Convention are violated shall have an effective remedy before

        a national authority notwithstanding that the violation has

        been committed by persons acting in an official capacity."

91.     This complaint, which in the Commission's opinion gave rise to

no issue separate from that under Article 8 (art. 8), was not pursued

by the applicant before the Court, which does not consider it necessary

to examine it of its own motion.

IV.     APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

92.     Ms Adele Johansen sought just satisfaction under Article 50 of

the Convention (art. 50), which reads:

        "If the Court finds that a decision or a measure taken by a

        legal authority or any other authority of a High Contracting

        Party is completely or partially in conflict with the

        obligations arising from the ... Convention, and if the

        internal law of the said Party allows only partial reparation

        to be made for the consequences of this decision or measure,

        the decision of the Court shall, if necessary, afford just

        satisfaction to the injured party."

93.     The applicant sought no compensation for damage but claimed the

reimbursement of costs and expenses incurred in the proceedings before

the Court.  By letter of 17 June 1996, she stated that she waived her

Article 50 (art. 50) claim, the costs and expenses in question having

been reimbursed by way of legal aid from the Norwegian authorities.

FOR THESE REASONS, THE COURT

1.      Holds unanimously that the taking into care of the applicant's

        daughter and the maintenance in force of the relevant care

        decision did not give rise to a breach of Article 8 of the

        Convention (art. 8);

2.      Holds by eight votes to one that the decision of 3 May 1990,

        in so far as it deprived the applicant of her access and

        parental rights in respect of her daughter, constituted a

        violation of Article 8 (art. 8);

3.      Holds unanimously that there has been no violation of

        Article 6 para. 1 of the Convention (art. 6-1);

4.      Holds unanimously that it is not necessary to examine whether

        there was a breach of Article 13 of the Convention (art. 13);

5.      Holds unanimously that it is not necessary to make an award

        for costs and expenses.

        Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 7 August 1996.

Signed: Rudolf BERNHARDT

        President

Signed: Herbert PETZOLD

        Registrar

        In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the partly

dissenting opinion of Mr Morenilla is annexed to this judgment.

Initialled: R.B.

Initialled: H.P.

             PARTLY DISSENTING OPINION OF JUDGE MORENILLA

1.      I agree with the majority that the taking into care of the

applicant's daughter and the maintenance in force of the care decision

were "necessary in a democratic society" within the meaning of

paragraph 2 of Article 8 of the Convention (art. 8-2).  However, unlike

the majority, I find that the Norwegian administrative and judicial

authorities were entitled to think that it was "necessary" also to

deprive the applicant of her parental rights and access in respect of

the daughter.

2.      When judging the necessity of these measures, the Court should,

as rightly pointed out by the majority (see paragraph 64 of the

judgment), examine whether the reasons adduced by the domestic

authorities were "relevant and sufficient" in the light of the case as

a whole.  Moreover, regard should be had to the margin of appreciation

to be accorded to them in this area, which, in addition to those

reasons mentioned in paragraph 64 of the judgment, may be justified by

the changing structure of family life in many member States of the

Council of Europe (see Gomien, Harris and Zwaak, Law and Practice of

the European Convention on Human Rights and the European Social

Charter, Strasbourg 1996, pp. 242, 243).

        I share the majority's view that the authorities' discretion

in assessing the necessity of taking a child into care should be a wide

one but, unlike the majority, I see no valid justification for the

Court to exercise a stricter scrutiny of restrictions on parental

rights and access.  In my view, in respect of the latter kind of

measure too, the Court should avoid playing the role of a court of

appeal and should limit itself to reviewing whether the applicant's

interests were duly protected in the decision-making process and

whether the justifications adduced by the national authorities could

reasonably be made on the basis of the facts established by them.

3.      In the instant case, the decision-making process leading to the

decisions depriving the applicant of her parental rights and access

was, as also observed by the majority, beyond reproach.

        However, unlike the majority, I consider that the difficulties

which the child welfare authorities experienced with the applicant and

the risk of her disturbing the foster-home environment were such as to

exempt them from their normal duty under Article 8 (art. 8) to take

measures with a view to reuniting her and the daughter.  In serious

circumstances such as those which obtained in the instant case, where

the life, health and development of the child were at risk, society

must be able to intervene by taking such measures as are required in

order to protect the best interests of the child, even though it may

have the ultimate effect of disrupting in an irreversible manner the

natural bonds between the mother and the daughter.  Such interests were

paramount not only under the relevant domestic law

(see paragraphs 30-40 of the judgment) but also under Article 8 of the

Convention (art. 8) (see, for instance, the Keegan v. Ireland judgment

of 26 May 1994, Series A no. 290, pp. 20-21, para. 55; and the Olsson

v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250,

pp. 35-36, para. 90), which should be interpreted in the light of

Resolution (77) 33 on placement of children adopted by the Committee

of Ministers of the Council of Europe on 3 November 1977.

        Although I am aware of the serious consequences of the measures

for the applicant's family life, I consider that in the circumstances

the authorities were, having regard to their margin of appreciation,

entitled to think that it was necessary to deprive the applicant of her

parental rights and access in the context of a permanent placement of

the child in a foster home with a view to adoption.  In my opinion, in

reaching the contrary conclusion, the majority has based itself on

reasoning (see paragraphs 82-84 of the judgment) which amounts to a

reassessment of the evidence established by the Committee

(see paragraph 17) and the County Governor (see paragraph 22).

4.      For these reasons, I cannot follow the majority in finding that

the national authorities, by depriving the applicant of her parental

rights and access, "overstepped their margin of appreciation, thereby

violating the applicant's rights under Article 8 of the Convention

(art. 8)".

 

Full & Egal Universal Law Academy