FIFTH SECTION
DECISION
Application no. 3145/16
J.M.N. and C.H.
against Norway
The European Court of Human Rights (Fifth Section), sitting on 11 October 2016 as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 14 December 2015,
Having regard to the decision to grant the applicants anonymity under Rule 47 § 4 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr J.M.N., is a Swedish national born in 1973. The second applicant, Ms C.H., is a Norwegian national born in 1976. The applicants live in Moelv. They were represented before the Court by Mr A. Westeng, a lawyer practising in Oslo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants have a son, X, born in August 2013. In 2006, the second applicant had a son, Y, with another man. The second applicant suffers from paranoid schizophrenia, a chronic mental illness requiring medication. X had a difficult birth with birth asphyxia and possible withdrawal symptoms from the second applicant’s medication, which she had taken during pregnancy. Six days after X was born, Ringsaker Child Care Protection Services (barneverntjenesten) decided to take him into public care on an emergency basis because of the second applicant’s poor mental health and the first applicant’s inability to understand that this could be hazardous for X.
4. The applicants’ appeal was rejected on 5 September 2013 by Oppland and Hedmark County Social Affairs Board (fylkesnemnda for barnevern og sosiale saker, henceforth “the Board”). The applicants were at the same time granted contact rights for two hours once per week with X. The applicants did not appeal against the Board’s decision.
5. On 10 October 2013 the Child Care Protection Services requested the Board to take X and Y into permanent public care, place them in foster homes and regulate the contact rights with the applicants. The applicants opposed the measures.
6. On 4 March 2014, the Board decided to take X and Y into permanent public care and place them in foster homes. Y was placed with his maternal grandmother, with whom he had already lived since he was a baby. X was placed in another foster home. The applicants were granted contact rights with X for two hours, three times per year, with a foster parent present if needed. The second applicant was granted more substantial contact rights with Y, including overnight visits. An oral hearing was held for two days and 12 witnesses were heard. Moreover, the Board took into consideration a report issued by an expert, psychologist M.H., who had observed the applicants during several visits with X. The report concluded that the applicants failed to provide X with personal contact and security and that there were flaws in the emotional and child development care.
7. The applicants appealed against the permanent public care order and the decision on contact rights only regarding X.
8. On 24 June 2014, the Board’s decision was confirmed by Hedmarken City Court (tingrett), after a two-day oral hearing where 12 witnesses and the expert M.H. were heard. The court was composed of one judge and two expert lay judges. The court found that the applicants were able adequately to take care of X’s basic daily needs. However, as a vulnerable child, X had a special need for contact and emotional interaction. Regarding the second applicant, the court took into consideration the report by M.H. where it was noted, inter alia, that she was strongly affected by negative psychosis symptoms such as passivity and social withdrawal. She was emotionally numb, with heavily reduced function levels. As to the first applicant, M.H. had found that he was not able to compensate for the first applicant’s deficiencies. Although he could take care of X’s material needs, he was unable to fulfil X’s need for contact and interaction. In view of this, the court concluded that the public care of X could not be terminated.
9. One of the expert lay judges dissented and expressed the view that the first applicant was able to compensate for the second applicant’s deficiencies, at least if support measures were put in place by the authorities.
10. On 10 April 2015, Eidsivating High Court (lagmannsrett) unanimously rejected the applicants’ appeal against the lower court’s judgment concerning the permanent public care order. The appellate court consisted of three judges and two expert lay judges. Although the applicants did not appeal against the judgment in so far as it concerned the contact rights, the appellate court considered the matter on its own initiative. An oral hearing was held for three days. The parties and 14 witnesses were heard. With regard to X, he was considered by the appellate court to be a healthy and normal child but, due to his infant trauma, still vulnerable. Moreover, it noted that the second applicant had a chronic mental illness. The court relied on the same expert, M.H., as the City Court. M.H. had observed visits between the applicants and X on several occasions and had issued a new report, dated 23 February 2015, where, inter alia, the following was noted:
“[The second applicant] has, during the visits I have observed, occasionally been more active with [X] than during the visits I observed in 2013. But her demeanour during the visits is, as during earlier visits, with some exception, characterised by her subdued (avdempet), detached (følelseflat) and quiet (stille) behaviour. There are long pauses where it is completely silent in the room.”
As to the first applicant, the report by M.H. noted, inter alia, the following:
“[He] was very passive during both visits. He followed [X] around the room while [X] explored the various games, and sat down on the floor when [X] did. However, he sat down behind [X] so that there was no face-to-face contact between them ... He smiled at [X] but did not take the initiative to interact or answer or develop the various initiatives X took for interaction during play. The visits were characterised by [the first applicant] quietly observing X’s play and the [second applicant’s] and [X’s] play. When [the second applicant] during the last part of the visits became more passive, [the first applicant] did not take over, but remained passive and quiet.”
The report concluded that neither parent was able to meet X’s need for contact and interaction. Even though the first applicant was considered to possess more parental ability, he was still not found able to compensate for the second applicant’s lack of such ability, in particular as he lacked in his ability for sensitive care (sensitiv omsorg). It was furthermore concluded by M.H. that neither parent saw, understood or responded to X’s signals. The first applicant still lacked an understanding of the second applicant’s mental illness and how it affected her capacity to care for the child.
11. The appellate court found that the expert M.H.’s observations were confirmed by the court’s own observations during the oral hearing. It further considered that support measures would not be sufficient because of the applicants’ lack of interest in such measures and lack of understanding of their deficiencies. Moreover, X had settled well in his foster home and developed positively. Thus, it was in X’s best interest that the permanent public care order be granted.
12. The applicants appealed to the Supreme Court (Høyesterett), submitting that the permanent public care order should not be granted. They did not complain about the contact rights.
13. On 23 June 2015, the Supreme Court refused leave to appeal.
B. Relevant domestic law
14. According to Section 4-8(2) of the 1992 Child Welfare Act (lov om barneverntjenester), a newborn child may be taken into public care if it is highly probable that a move to the parents would lead to such a situation or risk to the child as mentioned in Section 4-12.
15. Section 4-12(a), of the Act stipulates that a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security the child needs, depending on his or her age and development.
16. According to Section 4-21(2) of the Act, the parties may request the County Social Affairs Board to terminate the public care as long as at least 12 months have passed since the Board or the courts last considered the matter.
17. Contact rights between a child in public care and his or her parents are regulated in Section 4-19 of the Act which stipulates that the extent of the contact rights is decided by the County Social Affairs Board. The private parties can demand that the matter be reconsidered by the Board as long as at least 12 months have passed since the Board or the courts last considered it (Section 4-19(5)).
C. Relevant international law
18. Article 3 of the Convention on the Rights of the Child, in so far as relevant, reads as follows:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. “
COMPLAINTS
19. The applicants complained under Article 8 of the Convention that the decisions to take X into emergency public care and then to take him into permanent public care, as well as the restrictions on their contact rights with him, violated their right to respect for their family life. They also complained under Article 6 of the Convention that the length of the proceedings before the High Court was excessive.
THE LAW
A. The applicants’ complaints relating to the permanent public care proceedings
20. The applicants complained that the decision to take X into permanent public care violated their right to respect for their family life, contrary to Article 8 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his ... family life ....
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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”
21. In relation to these proceedings, the applicants also complained that the High Court had not delivered its judgment within a reasonable time, contrary to Article 6 of the Convention.
22. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case, and that it has previously held that whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. It considers that the complaint raised by the applicants under Article 6 of the Convention is closely linked to their complaint under Article 8 and may accordingly be examined as part of the latter complaint (see, among other authorities, Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 111, 1 December 2009).
23. The Court notes that it is clear that the instant case concerns “family life” within the meaning of Article 8 and that the measure to take X into permanent public care constituted an interference with the applicants’ right to respect for their family life. It further observes that the measure taken was in accordance with the law, namely the 1992 Child Welfare Act, and it finds no reason to doubt that the measure was intended to protect the “health and morals” and the “ rights and freedoms” of the child.
24. In determining whether the impugned measure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purpose of paragraph 2 of Article 8. 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 interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII).
25. Moreover, the margin of appreciation 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, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit. When a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited. The Court has indicated 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 in respect of any further limitations, such as restrictions placed by the authorities on parental rights of 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 (see K. and T., cited above, § 155).
26. The Court further takes into account that although, as noted above, Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8 (see R. and H. v. the United Kingdom, no. 35348/06, § 75, 31 May 2011).
27. In the present case, the Court notes that the granting of the permanent public care order of X was examined in detail on the merits by the Board, the City Court and the High Court. The applicants were represented by legal counsel throughout the proceedings and an oral hearing was held before each instance where numerous witness testimonials were given. The applicants were active throughout the proceedings and were able to present their case thoroughly.
28. Moreover, in reaching their decision, the Board and the courts took note of various relevant factors and made detailed references to the expert’s reports and oral evidence from witnesses, all of whom had identified various long-term deficiencies in the applicants’ parental ability. In this respect, the Court observes that the national courts accepted that the applicants were able to take care of X’s basic daily needs but that he was a vulnerable child with special needs for contact and emotional interaction which the applicants were unable to meet. They were found to be very passive and lacking in interaction and did not understand or respond to X’s signals. Although the first applicant was deemed to possess more parental ability, he was still not able to compensate for the second applicant’s lack thereof. Also, X had settled well in his foster home and was developing well. The High Court also considered the possibility of support measures instead of public care, but dismissed it due to the applicants’ lack of interest in such measures and their lack of understanding of their deficiencies. In these circumstances, there is no doubt for the Court that the domestic authorities carefully considered all aspects of the case and focused on what was in X’s best interest to ensure his well-being.
29. Furthermore, the Court notes that the applicants maintain contact with X and that they can request more extended contact rights, as well as the termination of the permanent public care order, when 12 months have passed since the Board and the national courts last considered these matters. They thus have the possibility for regular review of these measures where the authorities need to take into account any changes and developments in the applicants’ and X’s circumstances.
30. Lastly, although the proceedings as a whole lasted a little over one year and eight months, the Court reiterates that the case was tried on the merits by three instances which all held oral hearings, and then reviewed by the Supreme Court. The expert, M.H., also carried out her observations of the applicants and X during visits and submitted a report both before the Board and the High Court. In view of this, the Court considers that the overall length of the proceedings cannot be considered excessive, even having regard to the fact that it took the High Court four months to grant leave to appeal (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 72, Series A no. 299‑A).
31. In the light of all of the above considerations, the Court concludes that the national authorities acted within their margin of appreciation and that the impugned measure was proportional and justified in the circumstances of the case.
32. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The applicants’ other complaints
33. The applicants further complained under Article 8 of the Convention about the initial proceedings concerning the emergency public care order of X. However, the Court observes that the applicants did not appeal to the domestic courts against the Board’s decision in September 2013 relating to this measure. They have therefore failed to exhaust available domestic remedies.
34. The applicants also complained under Article 8 about the restriction of their contact rights with X. However, the Court notes that they failed to appeal against this part to the Supreme Court. It follows that they have failed to exhaust available domestic remedies also as concerns this complaint.
35. Consequently, these complaints must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 3 November 2016.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy