SECOND SECTION
DECISION
Application no. 19626/21
M.N.
against Norway
The European Court of Human Rights (Second Section), sitting on 12 March 2024 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. 19626/21) 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 30 March 2021 by a Norwegian national, Ms M.N. (“the applicant”), who was born in 1982 and lives in Oslo, and was represented before the Court by Mr P. Sivabalachandran, 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 applicant has four children, A (born in 2004), B (born in 2006), C (born in 2009) and D (born in 2013). The application concerns proceedings in which it was decided to continue the public care in respect of all of the children and in which the applicant’s contact rights during the public care were determined.
2. In 2006 the child welfare services came into contact with the family after receiving notifications of concern regarding the children’s father’s alcohol consumption. After a closer examination the child welfare services found that the father occasionally consumed alcohol excessively and also noted that he behaved violently at home. From 2006 to 2015 various assistance measures were offered to the family, including the placement of the children in a nursery and the provision of an apartment from the municipality, as well as guidance and supervision. Despite this, there were still concerns mainly linked to the father’s alcohol abuse and the children’s development. In 2014 the child welfare services engaged two psychologists, who found that the children’s care situation had been unstable and had caused them some harm. In 2015, in a conversation with a judge, C stated that the applicant had hit him and, at the same time, the two older siblings made statements to the effect that both the applicant and their father had hit them. Both parents denied having hit their children. On several occasions in the spring of 2015 the father was observed to be heavily intoxicated in the family home. The child welfare services decided to place all four children in emergency placement on 27 August 2015.
3. On 16 December 2015 the County Social Welfare Board issued care orders in respect of all the children. The applicant and her husband were granted contact with the children for three hours six times per year, under supervision. The District Court upheld the Board’s decision on review. After assessing the children’s needs in addition to the parents’ care abilities (where it transpired that various risk factors were considered, including that the children were exposed to the father’s alcohol abuse and that there was a high level of conflict in the home), the District Court reduced the contact to three hours four times per year. The court emphasised that the alcohol abuse and violence had been taken into account and that supervision could serve as a support for the parents in connection with the contact sessions.
4. On 13 March 2018 the applicant and her husband, the children’s father, were convicted of violent maltreatment of the three eldest children. They were sentenced to forty-five days’ imprisonment and ordered to pay damages.
5. In the proceedings at issue, the applicant and her husband applied on 6 July 2018 to have the care orders in respect of all four children lifted. The application was dismissed by the Board on 31 January 2019 and contact was set at three hours six times per year in respect of A and B and at three hours four times per year in respect of C and D. On review, on 23 September 2019 the District Court upheld the Board’s decision.
6. On 20 January 2020 the High Court granted the applicant leave to appeal against the District Court’s judgment in so far as it concerned the care order in respect of A and contact rights in respect of all four children.
7. In a judgment of 18 June 2020 the High Court upheld the care order in respect of A and set the contact with all four children at three hours four times per year. In addition, the High Court concluded that A was to have weekend visits four times a year and that B could visit the parents as often as he wished, with his foster parent’s agreement. Furthermore, it was decided that the child welfare services should have the right to supervise the contact sessions with the two youngest children, C and D.
8. On 28 October 2020 the Supreme Court’s Appeals Committee granted the applicant and her husband leave to appeal against the High Court’s judgment on the point of contact rights in respect of C and D. The applicant and her husband were refused leave to appeal against the remainder of the judgment. In connection with the proceedings before the Supreme Court, a court-appointed expert psychologist submitted a report and gave a statement. On 2 March 2021 the Supreme Court ruled on the merits. It set the applicant’s and her husband’s contact with C and D at three hours five times per year, with the possibility of supervision by the child welfare services.
9. In her application, the applicant relied on Article 8 of the Convention and submitted that her right to respect for her family life had been violated because the domestic authorities had placed limitations on her contact with her children and had thus failed to reunite the family.
THE COURT’S ASSESSMENT
10. The Court notes that the applicant, in her complaint under Article 8 of the Convention, essentially argued that the domestic authorities had not facilitated any reunification of the family on account of their placing limitations on the contact granted. She argued that there had been a lack of guidance and linguistic and cultural adaptation on the part of the authorities in this regard, which, she asserted, was relevant, as the parents had come from Sri Lanka. The Court therefore considers that the application is targeting only the decision on the applicant’s contact rights in respect of her four children.
11. The Court finds that the domestic decisions to grant the applicant only limited contact with her four children entailed an interference with her right to respect for her family life for the purposes of Article 8 § 1 of the Convention. That interference was in accordance with the law, namely the 1992 Child Welfare Act, which was applicable at the material time, and pursued the legitimate aims of protecting the children’s “rights” and their “health”. The remaining question is whether the interference was “necessary” within the meaning of Article 8 § 2 of the Convention.
12. 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 in particular 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 parents have been adequately involved in the decision-making process seen as a whole (see Strand Lobben and Others, cited above, §§ 203 and 212).
13. In determining whether the domestic authorities gave relevant and sufficient reasons for the impugned decisions on contact rights, the Court firstly notes that the decisions became necessary following care orders based on findings related to an untenable care situation that the four children had been living in for years. It appears from the domestic decisions that from 2006 to 2015 there had been a number of notifications of concern related to the children’s well-being and that for more than eight years the child welfare services had attempted various assistance measures. In 2014 the child welfare services engaged two expert psychologists to examine the children’s care situation and, in addition, a cultural interpreter was involved to facilitate the conversations between the experts and the parents. The experts concluded that the children’s care situation had been unstable and had caused them some harm throughout their upbringing. Following the expert report, new measures were introduced to assist the family. In 2015 public care measures were initiated after three of the children had stated that violent acts had been committed by the applicant and her husband.
14. Turning to the applicant’s submission before the Court that the limited contact that had been allowed for had not facilitated family reunification, the Court bears in mind that it has recently given judgments in several cases involving the respondent State in which it found a violation of Article 8 of the Convention relating to the justifications provided by the domestic authorities for the establishment of particularly restrictive contact regimes (see, for cases where shortcomings in relation to decisions on contact rights in themselves led to the finding of a violation, K.O. and V.M. v. Norway, no. 64808/16, §§ 67-71, 19 November 2019, and A.L. and Others v. Norway, no. 45889/18, §§ 47-51, 20 January 2022; see also, for cases where similar shortcomings formed important parts of the context in which violations had occurred, Strand Lobben and Others, cited above, §§ 221 and 225; Pedersen and Others v. Norway, no. 39710/15, §§ 67-69, 10 March 2020; Hernehult v. Norway, no. 14652/16, §§ 73-74, 10 March 2020; M.L. v. Norway, no. 64639/16, §§ 92-94, 22 December 2020; and Abdi Ibrahim, cited above, § 152).
15. The Court considers that, in the instant case, there are important differences in the facts compared to those in the cases cited in the previous paragraph. Firstly, the Court notes that the applicant’s contact rights in respect of all the children were assessed in detail by the County Social Welfare Board, the District Court and the High Court. In addition, the Supreme Court made a fresh assessment of the applicant’s contact rights in respect of the two youngest children, C and D. It appears from those proceedings that the applicant and her husband had been convicted of violent maltreatment of three of the children while they had been in their custody. Furthermore, the domestic authorities stated that the parents had denied the violent behaviour and had not appeared sympathetic as to the effects of the father’s previous alcohol abuse on the children. The Court also notes the domestic courts’ description of the child welfare services’ attempts at various assistance measures and that, after the care order had entered into force, the child welfare services had facilitated more extensive contact than the parents’ legal entitlement.
16. Moreover, the Court observes that in the High Court’s judgment of 18 June 2020, which was the final judgment on the merits concerning contact rights in respect of A and B, that court emphasised that there was no basis for giving up the goal of family reunification and that the amount of contact would have to be reassessed regularly. The High Court noted that there had been misunderstandings and issues during the past contact sessions: among other things, the parents had made negative comments regarding B’s weight and looks and also expressed dissatisfaction with A’s and B’s clothing and behaviour. The confrontational atmosphere during the contact sessions had, on one occasion, led to an emotional outburst by the youngest child, while the other children had become quiet. Nevertheless, after considering both the interests of the children and those of the applicant, the High Court decided to increase the parents’ contact with A and B. The High Court upheld the parents’ contact rights in respect of all the children, setting contact at three hours four times per year. In addition, the High Court decided that A should have four weekend visits per year, each lasting for forty-eight hours. In respect of B, the High Court noted that, in addition to the contact rights already decided, he should have the opportunity to visit the parents as often as he wished, on the condition that the foster parent considered it to be in his best interests and could also attend the sessions. In that respect, the Court notes that there appeared to be good communication and cooperation between the foster parent and the biological parents.
17. As regards the applicant’s contact rights in respect of the two youngest children, C and D, a fresh assessment was conducted by the Supreme Court. In this connection, the Court notes that the Supreme Court meticulously examined each child’s situation when deciding on the question of contact rights, while also taking into account the importance of the children’s cultural identity. The Supreme Court noted that no information had emerged that indicated that the aim of reunification had been abandoned. However, the expert had emphasised that C and D were vulnerable to psychological and physical stress and that the vulnerability was linked to the unstable and, to some extent, harmful care the children had experienced during their upbringing.
18. In respect of C, it was noted that his development was delayed in several areas and that he was monitored at school. He also struggled in social settings. After each contact session he had had adverse reactions, such as increased rumination, difficulty concentrating and emotional outbursts. In addition, he had a general fear of being returned to his biological parents, which, on one occasion, had resulted in him urinating himself. In connection with the contact sessions, the child had described feeling “scared” and “insecure”. The expert pointed out that C had not processed the negative experiences from his upbringing and that there was a risk of his reliving the trauma he had experienced if, during the contact sessions, he should be exposed to loud and angry voices or receive reprimanding looks from his parents. Emphasis was also placed on organising joint contact sessions with C and D, as the two children had provided a sense of security for each other during the sessions. In respect of D, the Supreme Court emphasised that she had been moved to foster care at a young age but that until then, she had received poor care at home and, according to the expert, had witnessed conflict between the parents as well as the father’s alcohol abuse.
19. In its overall assessment, the Supreme Court also considered the opinions of the children, who had expressed to the expert that they wanted to continue with the same amount of contact as was already being practised. Moreover, the Supreme Court noted that there appeared to be consensus among all the parties that the contact sessions which had taken place so far had not gone well. In this context, the Supreme Court noted that the parents had been unable to consider the children’s emotional needs and reactions during the sessions. Based on the experiences gained during the contact sessions which had been carried out, the Supreme Court decided that it would be in the children’s best interests that supervision be continued. Emphasis was placed on the fact that a qualified representative could be present and could intervene if situations arose that could be stressful for the children.
20. The Court notes that both the Supreme Court and the High Court, in considering the question of contact rights, assessed the specific situation of each child and its development throughout the proceedings. The Court has no grounds for questioning the domestic authorities’ assessment in that context that the children had been exposed to difficult situations in their upbringing and that their backgrounds had made them particularly vulnerable. In this connection, the Court notes that the domestic courts decided on contact rights in line with the children’s best interests and in accordance with the recommendations given by the court-appointed experts.
21. Against that background, the Court finds that the domestic authorities gave relevant and sufficient reasons for the decisions on contact rights and adequately involved the applicant in the decision-making process.
22. It accordingly considers that, in the light of all the material in its possession, the interference with the applicant’s right to respect for her family life 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 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 11 April 2024.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President