Information Note on the Court’s case-law No.
August 1996
Johansen v. Norway - 17383/90
Judgment 7.8.1996
Article 8
Article 8-1
Respect for family life
Taking into public care of daughter, refusal to terminate the care, deprivation of mother's parental rights and access: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 8 OF THE CONVENTION
A.Whether there was an interference
Impugned measures clearly amounted to interferences with the applicant mother's right to respect for her family life with her daughter.
B.Whether the interferences were justified
1."In accordance with the law"
The measures had had a basis in domestic law – applicant's submission to Commission that relevant law not foreseeable was not pursued before Court.
2.Legitimate aim
Legitimate aims pursued: "health" and "rights and freedoms" of daughter.
3."Necessary in a democratic society"
Competent national authorities enjoyed a wide margin of appreciation in assessing the necessity of taking a child into care – however, a stricter scrutiny was 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 effective protection of right of parents and children to respect for their family life.
(a)The decision-making process
Nothing to suggest that decision-making process leading to contested measures had been unfair or failed to involve applicant sufficiently to provide her with the requisite protection of her interests.
(b)Merits of impugned measures
(i)Taking into care and refusal to terminate care
The taking into care of applicant's daughter and the maintenance in force of the care decision concerned had been based on reasons which were not only relevant but also sufficient for the purposes of Article 8 § 2 – they were supported by painstaking and detailed assessments by experts appointed by competent national authorities – as findings of fact primarily a matter for those authorities, Court would not substitute its views for theirs as to relative weight to be given to expert evidence adduced by each party -they had acted within their margin of appreciation.
Conclusion: no violation (unanimously).
(ii)Deprivation of parental rights and access
Measures in issue were particularly far-reaching in that they had totally deprived applicant of her family life with the child and had been inconsistent with the aim of reuniting them – such measures could only be applied in exceptional circumstances and could only be justified if motivated by an overriding requirement pertaining to child's best interests.
The reasons adduced for decision to deprive applicant of her parental rights and access in respect of her daughter were relevant for purposes of Article 8 § 2.
Question whether they were also sufficient – firstly, during period between daughter's birth and the decision in question, applicant had had access to her child twice a week in a manner which did not appear to be open to criticism.
Secondly, applicant's lifestyle had by the time of the decision already somewhat changed for the better – it was rather the difficulties experienced in implementing care decision concerning her son which provided reason for authorities' view that applicant unlikely to cooperate and that there was a risk of her disturbing daughter's care if given access to foster home – however, it could not be said that the difficulties and risk had been such as to dispense authorities altogether from their normal obligation under Article 8 to take measures with a view to reuniting them if mother were to become able to provide daughter with a satisfactory upbringing.
Against this background, decision to deprive applicant of her access and parental rights was not sufficiently justified for purposes of Article 8 § 2, it not having been shown that the measure corresponded to any overriding requirement in child's interest – authorities had thus overstepped their margin of appreciation.
Conclusion: violation (eight votes to one).
II.ARTICLE 6 § 1 OF THE CONVENTION
Competent national authorities had a duty under Article 6 § 1 to act with exceptional diligence.
The proceedings, which had lasted altogether one year and nine months, comprised thorough examination of merits of contested measures at three administrative levels and by City Court and then summary examination by Supreme Court – nothing to suggest that any of these separately had failed to act with required diligence, nor that, having regard to complexity of case, duration of proceedings as a whole had been excessive.
Conclusion: no violation (unanimously).
III.ARTICLE 13 OF THE CONVENTION
Complaint to Commission not pursued before Court.
Conclusion: not necessary to examine (unanimously).
IV.ARTICLE 50 OF THE CONVENTION
Costs and expenses: not necessary to make an award (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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