SECOND SECTION
DECISION
Application no. 38082/21
S.G. and M.C.
against Norway
The European Court of Human Rights (Second Section), sitting on 26 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. 38082/21) 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 15 July 2021 by a Norwegian national and a Philippine national, Mr S.G. and Ms M.C. respectively (“the applicants”), who were born in 1966 and 1981 respectively and live in S., and were represented before the Court by Mr K. Sørensen, a lawyer practising in Oslo;
the decision not to disclose the applicants’ names;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns child welfare measures, including, in particular, proceedings in which it was decided not to lift a care order that had been issued in respect of the applicants’ children.
2. The first and second applicants are the father and mother respectively of a boy, X, who was born in 2008, and a girl, Y, who was born in 2009.
3. The child welfare services came into contact with the family in 2012, after X’s kindergarten had reported concerns, inter alia, that X was subjected to violence in the home. During different periods between 2012 and 2017 various assistance measures were attempted and further notifications of concern were submitted to the child welfare services. In 2017 care orders were issued in respect of both children and contact was then set for the first applicant at three hours four times per year and for the second applicant at three hours six times per year.
4. In the proceedings at issue, the applicants applied to have the care orders lifted in 2019 and, following a period during which dialogue between the applicants and attempts to apply a more extensive contact regime took place, the County Social Welfare Board ultimately examined the application in June 2020.
5. On 1 July 2020 the Board decided not to lift the care orders. The Board noted that the parents had confirmed that the children had been exposed to parental violence and that there had been a high level of conflict at home. In addition, police reports showed that there had been a number of incidents connected to the first applicant’s alcohol abuse. In its decision the Board examined X’s and Y’s care needs and opinions. The Board noted that X was a boy who struggled, inter alia, with school and behavioural problems and who had been assessed by the Child and Adolescent Psychiatric Outpatient Clinic on suspicion of a severe mental reaction following trauma. Y was described as a child who needed support in most areas, including emotionally, at school, and socially. The Board noted that neglect while she was living with the applicants was a likely cause of her struggles and that she was at risk of a skewed development if she did not receive good care. It transpires that after the placement, both children had shown positive progress. The Board further assessed the applicants’ caregiving abilities and the manner in which those matters had developed since the care orders had first been issued, including the degree to which the children had become attached to their foster homes. It noted that there had been serious concerns about the children’s care situation for several years and that there had not been any significant improvements to the parent’s care competencies since the placement. There was, therefore, still a risk of neglect if the care order was lifted. The Board expressed concern that the unfavourable development observed before the care order was issued would continue and get worse if the children were moved back to an unstable care situation. As a part of that examination, the Board also examined the assistance measures that had been attempted and how they had functioned and whether the applicants might be able to regain care of the children if further assistance measures were put in place. It was pointed out that there was a particular concern that the applicants trivialised the situation and the reasons as to why the care order had been necessary. The Board also expressed concern that the children would not receive sufficient emotional care if they were returned. The Board emphasised that the aim was to reunite the family in the long term and that it was necessary to facilitate a good relationship, including offering counselling to improve the contact sessions. The Board pointed out that cancelling the care order at the time was considered to be harmful and not in the best interests of the children. The applicants’ contact was set at three hours six times per year.
6. On 1 December 2020 the District Court gave its judgment, where it, to a great extent, endorsed the Board’s finding but decided to increase the applicants’ contact rights. The District Court carried out assessments similar to those of the Board while taking into account the considerations of a psychologist, whom it had appointed as an expert and who had given a report. The court-appointed expert had concluded that it was unlikely that the applicants could provide the children with adequate care at the time. Nevertheless, the District Court emphasised in its judgment that, notwithstanding the applicants’ difficulties in providing the children with adequate contact and security, the aim of reuniting the family could not be abandoned. Regarding contact rights, the District Court noted that the children had expressed the wish to continue with the same amount of contact they had at the time. The District Court decided to increase the applicants’ contact rights from three to four hours per session and noted that the child welfare services continuously had to assess whether the contact could be increased.
7. On 2 February 2021 the High Court refused the applicants leave to appeal against the District Court’s judgment. In its decision, in response to an argument raised by the applicants to the effect that the District Court had not examined the consequences of errors which had been committed at earlier stages of the child welfare case, the High Court stated that the parents had not specified the particular errors which had allegedly been committed.
8. On 1 March 2021 the Supreme Court dismissed an appeal by the applicants against the High Court’s decision.
9. In their application to the Court, the applicants relied on Articles 8, 17 and 18 of the Convention, arguing that the domestic authorities had not only taken insufficient measures to reunite the family following the issuance of the care orders, but that they had furthered measures that had not been aimed at achieving reunification of the family.
THE COURT’S ASSESSMENT
10. The Court notes that the main submission underpinning the applicants’ complaints was that the domestic authorities had not facilitated any reunification of the family, but that, on the contrary, they had abused the provisions in domestic law which allowed for interference with the applicants’ right to respect for their family life in order to further aims which were not legitimate under the Convention.
11. The Court considers that these complaints fall to be examined under Article 8 of the Convention alone. It finds that the domestic courts’ decision not to lift the care order and to limit the applicants’ contact rights with their children entailed an interference with the applicants’ right to respect for their 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. It pursued the legitimate aim of protecting X’s and Y’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 Court notes that the proceedings at issue in the instant case are only those related to the question of whether the care order should have been lifted and not the previous proceedings concerning the decision to issue the care order, including the decisions on the applicants’ contact rights taken at that time. Those previous proceedings may nonetheless be relevant as context (see, for example, Strand Lobben and Others v. Norway [GC], no. 37283/13, § 148, 10 September 2019). The amount of contact that had actually been facilitated in the period following the placement decision will also be relevant in that connection.
13. The general principles relevant to the necessity test were extensively set out in Strand Lobben and Others (ibid., §§ 202-13) 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).
14. As to the question whether the care order in respect of X and Y could be lifted the Court notes that both the County Social Welfare Board and the District Court carried out extensive examinations of the children’s situation, their care needs and their opinions. Both authorities also examined the parents’ caregiving skills as well as the question of the effectiveness of the assistance measures and whether the measures might be effective in the future. It transpires that both children had special needs that had to be met and that the applicants, despite attempts at counselling, were not able to provide the children with sufficient care at the time of the domestic proceedings. It transpires, inter alia, that the Board and the District Court, with reference to the psychological expert’s statements, expressed serious concerns about the children’s development if they were returned to the applicants at the relevant time. The Court thus considers that relevant and sufficient reasons were provided as regards the decision not to lift the care orders.
15. In so far as the applicants’ complaint under Article 8 of the Convention also encompasses the contact arrangements that were decided, 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).
16. The Court considers, however, that there are important differences in the facts of this case compared to those cited in the previous paragraph. In particular, it considers that both the Board and the District Court gave individualised assessments that took account of the various interests at stake (see paragraphs 5 and 6 above). The District Court relied on, inter alia, the considerations of the court-appointed expert (see paragraph 6 above), who had in turn obtained and taken into account the wishes of the children themselves. Furthermore, the District Court examined evidence given by different witnesses as to how successful the contact sessions had been in the past and emphasised that it was to be assessed on an ongoing basis whether the amount of contact could be increased.
17. Furthermore, taking note of the assistance measures offered over the years and the fact that attempts were also made to apply a more extensive contact regime (see paragraph 4 above), the Court does not find grounds for considering that the authorities had in general paid insufficient regard to the ultimate aim of reuniting the family. As to any other possible shortcomings in the authorities’ overall conduct during the child welfare cases, the Court is unable, as was the High Court (see paragraph 7 above), to identify any of the specific errors which the applicants alleged had taken place at earlier stages of the child welfare cases.
18. As regards the decision-making process, the Court observes that the applicants, throughout the proceedings, were represented by their legal aid lawyer, and they had the opportunity to be present, give statements, and present evidence. The District Court heard ten witnesses and a court‑appointed expert psychologist who had observed contact sessions, spoke with the children, and submitted a report. The applicants were thus adequately involved in the decision-making process seen as a whole. The reasons provided were detailed and thorough, and the Court finds no basis for considering that these were either irrelevant or insufficient as concerns the contact rights.
19. The Court also bears in mind overall that, unlike, for instance, in A.S. v. Norway (no. 60371/15, §§ 58 ss., 17 December 2019), which concerned a situation where the applicant mother and the child were refused any contact with each other, in the instant case the applicants continued to enjoy their right to respect for their family life through the contact regime that had been established and was extended by the District Court, expressly in order to facilitate reunification of the family in the future. The Court further finds it relevant in the instant case that under domestic law, a parent may re-apply to have the care order lifted or the contact rights changed again (see, for example, E.M. and Others v. Norway, no. 53471/17, § 59, 20 January 2022).
20. In view of the above, the Court considers that the interference with the applicants’ right to respect for their family life was proportionate to the legitimate aims pursued and was thus “necessary in a democratic society” for the purposes of Article 8 § 2.
21. On the basis of its findings above, the Court concludes that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It follows that it 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 25 April 2024.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President