SECOND SECTION
DECISION
Application no. 44412/21
M.J.M.
against Norway
The European Court of Human Rights (Second Section), sitting on 12 December 2023 as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 44412/21) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 August 2021 by a Norwegian national, Ms M.J.M. (“the applicant”), who was born in 1984 and lives in Bodø, and was represented before the Court by Mr F.P. Gundersen, a lawyer practising in Oslo;
the decision not to disclose the applicant’s name;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application essentially concerns care orders that were issued in respect of the applicant’s children.
2. In 2004 the applicant gave birth to a girl, X, and in 2007 to another girl, Y. The applicant had been married to the girls’ father since 2003. In 2011 the applicant and the girls’ father divorced.
3. The child welfare services first came into contact with the family in 2009 in the context of complaints by the applicant of violence, threats and rape perpetrated by the girls’ father. Various examinations and assistance measures were instituted until 21 May 2015, when emergency placement decisions were taken in respect of both girls; on 2 November 2015 care orders were issued. The applicant was granted contact eight times per year during the emergency placement. On judicial review, the City Court, on 23 May 2016, upheld the care orders but increased the contact to twelve times per year.
4. In 2019 the applicant lodged an application to have the care orders lifted. On 18 February 2020 the County Social Welfare Board dismissed the application and that decision was upheld on review by the City Court on 1 June 2020. The High Court refused the applicant leave to appeal on 15 December 2020 and an appeal against that decision was dismissed by the Supreme Court on 25 February 2021.
5. Under Article 8 of the Convention, the applicant complained that her right to respect for her family life had been violated on account of the issuance of the care orders, an overly limited contact regime after the children’s placement in care, insufficient monitoring of the development of the applicant’s caregiving capacities after the children’s placement in care, the refusal to lift the care orders and shortcomings in the processing of her application to have the care orders lifted. The applicant also submitted that the processing of her application to have the care orders lifted entailed a violation of Article 6 of the Convention.
THE COURT’S ASSESSMENT
6. With regard to the applicant’s submissions relating to the issuance of the care orders in 2015, her contact rights and the authorities’ monitoring of the development of her caregiving capacities in the period following the children’s placement, the Court observes that any grievances relating to proceedings prior to those that started in 2019 (see paragraph 4 above) were not brought before the Court within the six-month time-limit of Article 35 § 1 of the Convention (as then in force) and the Court therefore cannot review the compatibility of these prior proceedings as such with the Convention (see, similarly, Strand Lobben and Others v. Norway [GC], no. 37283/13, §§ 142‑47, 10 September 2019). However, they may still inform the Court’s assessment of the instant case by providing context (ibid., § 148).
7. 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 applicant under Article 6 of the Convention is closely linked to her complaint under Article 8 and shall accordingly be examined as part of the latter complaint only (see, among other authorities, Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 111, 1 December 2009).
8. As to the complaint under Article 8, the Court finds that the decision not to lift the care orders entailed an interference with the applicant’s right to respect for her family life. The interference was in accordance with the law, namely the 1992 Child Welfare Act, which was applicable at the material time. It pursued the legitimate aims of protecting the children’s “rights” and their “health”. The remaining question is whether the interference was “necessary in a democratic society” within the meaning of Article 8 § 2.
9. The general principles relevant to the necessity test were extensively set out in Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 202‑13, 10 September 2019) and have since been restated in a number of cases, including Abdi Ibrahim v. Norway ([GC], no. 15379/16, § 145, 10 December 2021). From those principles, it follows that the Court must determine whether, in the light of the entirety of the case, the reasons adduced to justify the measures in question were relevant and sufficient for the purposes of Article 8 § 2 and whether the applicants have been adequately involved in the decision-making process seen as a whole (see Strand Lobben and Others, cited above, §§ 203 and 212).
10. Turning to whether the domestic authorities gave relevant and sufficient reasons for their decision not to lift the care orders, the Court notes that the City Court carried out an extensive examination of the requirements flowing from the Court’s case-law, in addition to those flowing from the United Nations Convention on the Rights of the Child. It also meticulously examined each of the girls’ situations, care needs and opinions and the applicant’s caregiving skills. X, who was 16 years old at the time, had strongly opposed being moved back with the applicant and Y, who was 13 years old at the time, had emphasised that she wanted to live with X, which was more important to her than whether she lived with the applicant or her foster parents. The City Court concluded that each of the girls would suffer serious harm were the care orders to be lifted, notwithstanding that the applicant had shown positive development since the care orders had first been issued.
11. The Court bears in mind that when a considerable period of time has passed since a 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 (see, for example, Strand Lobben and Others, cited above, § 208). It is apparent to the Court that the impugned decision not to lift the care orders was taken in pursuance of X’s and Y’s best interests. Moreover, the weight attached to the girls’ own views, notably in view of their age at the time, by the domestic authorities aligned, in the Court’s assessment, with the weight that ought to be given to children’s opinions in cases such as the present one (see, for example, K.B. and Others v. Croatia, no. 36216/13, § 143, 14 March 2017, with further references).
12. As regards the entire context in which the decisions not to lift the care order were given (compare paragraph 6 above), the Court observes that the question of contact rights was extensively examined by the City Court in its judgment of 23 May 2016, in which it reviewed the issuance of the care orders and the contact regime set by the Board in that connection (see paragraph 3 above). In that regard the City Court emphasised that it appeared that the applicant’s caregiving skills might develop positively and that it could not be concluded that the care orders would be kept in place in the long term. The City Court also took note of the girls’ own wishes in respect of contact rights, the views of a court-appointed expert and the experiences with the contact sessions. The Court finds no indication of shortcomings with regard to the decisions on contact rights taken in the course of the placement proceedings and, therefore, finds no indication that the subsequent decisions not to lift the care orders here at issue were characterised by a situation where the authorities had limited evidence from which to draw conclusions with respect to the applicant’s caregiving skills owing to previous restrictions placed on her opportunity to spend time with the children (contrast Strand Lobben and Others, cited above, § 221).
13. As concerns the applicant’s submissions to the effect that the development of her caregiving skills had been insufficiently monitored after the care orders had been issued in 2015, which is equally relevant when having regard to the entire context in which the decisions not to lift the care order were given, the Court observes that the City Court, in its judgment of 1 June 2020 (see paragraph 4 above), made highly critical remarks to the child welfare services as regards their monitoring of the applicant’s caregiving skills. In general, the Court considers that the City Court’s reasons on that point appear to align with its case-law in which it has set out, for instance, that the minimum that is to be expected of the authorities with regard to efforts directed towards facilitating family reunification is to examine the situation anew from time to time to see whether there has been any improvement in the family’s situation (see K. and T. v. Finland [GC], no. 25702/94, § 179, ECHR 2001‑VII). However, observing that the City Court raised that matter only in the course of the proceedings at issue in the case before the Court and noting that it is apparent from the High Court’s decision that the child welfare services had by then already initiated further efforts, the Court finds that these elements equally did not lead to a situation in which the authorities had too limited evidence from which to draw conclusions with respect to the applicant’s caregiving skills when reaching their decision not to lift the care orders.
14. As to the applicant’s submissions relating to alleged procedural shortcomings, the Court first observes that the City Court delivered a thoroughly reasoned judgment following proceedings during which an oral hearing had been conducted over two days, both children had been heard, the applicant had been provided with legal aid counsel and two psychologists had participated in the decision-making as part of the City Court’s bench. The applicant’s submissions to the Court refer to the fact that when Y had spoken with the City Court’s bench, which was done by video call owing to the long distance, Y’s foster father had been present. The Court observes that that matter was examined by the High Court, which considered it unfortunate that the foster father had been present during the entire conversation, but that there were no rules pursuant to which any such presence should always be considered a procedural mistake and, in the case before it, Y had herself at some point stated that she wanted her foster father to be present. The High Court also took note that in that hearing, Y had shared the same opinions as those she had given in other contexts without her foster father being present, including when she had spoken with the Board. In the light of the detailed examination and explanation of that matter by the High Court, viewed in conjunction with the otherwise extensive proceedings, the Court finds that there is no indication that the decision-making process did not permit the true view of Y to be made known.
15. In the light of the considerations above, the Court concludes that the decision not to lift the care orders was based on reasons that were relevant and sufficient and was proportionate to the legitimate aims pursued and thus “necessary in a democratic society”, for the purposes of Article 8 § 2 of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and as such must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 January 2024.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President