AS TO THE ADMISSIBILITY OF
Application No. 29821/96
by T.C.
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 September 1995
by T.C. against Norway and registered on 16 January 1996 under file
No. 29821/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Norwegian citizen, born in 1968 and resident
at K. Before the Commission she is represented by Mr Bent Endresen,
a lawyer in Stavanger.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 15 February 1992 the applicant gave birth to a daughter, T.
The paternity remained unclear and the applicant enjoyed the parental
rights alone. On 9 June 1992 T was provisionally placed in public care
in a hospital for young children pursuant to section 16 a of the 1993
Child Welfare Act (barnevernloven), apparently having regard to the
applicant's drug abuse. The applicant visited T twice in the hospital
but then apparently broke off contact with her.
On 2 September 1992 the Client and Patient Committee (klient- og
pasientutvalget) of a Social Welfare Centre in a bigger Norwegian city
confirmed the placement order pursuant to section 19 of the 1953 Act.
T was placed in a foster home with a view to being adopted and the
address was ordered to be kept secret from the applicant. The applicant
was also deprived of her parental and access rights pursuant to
sections 19 and 20 of the 1953 Act.
Before the Client and Patient Committee the applicant, assisted
by counsel, had consented to T's placement in public care in a foster
home with a secret address as well as to an initial prohibition of
access. The applicant could also accept a deprivation of parental
rights and putting T up for adoption, on condition that the contact
between T and her maternal grandparents would be maintained.
The Client and Patient Committee also heard the applicant's
mother, social welfare officials, a psychologist as well as a physician
of the young children's hospital and the manager apparently of the
rehabilitation centre for drug addicts where the applicant was
receiving treatment.
In its decision the Client and Patient Committee took note, inter
alia, of the applicant's drug abuse which she had acknowledged and
which prevented her from assuming the everyday care of T. The Committee
also noted that out of concern for T's well-being the applicant had
consented to several of the proposed care arrangements. Moreover, as
the applicant was facing lengthy rehabilitation and her contact with
T had already been broken off, the Committee found it to be in the
latter's best interests to deprive the applicant of her parental rights
and thus prepare for an adoption of T at a later stage. For the time
being, the Committee also found it necessary to keep T's whereabouts
secret from her maternal grandparents. Any subsequent contacts between
T and her grandparents would be a matter for the foster parents.
Subsequent to the Committee's decision T and her grandparents met
on various occasions on neutral premises. In an appeal lodged on 3
December 1992 the applicant challenged the deprivation of her parental
rights, fearing that it could affect her parents' relationship with T.
It seemed as if the social welfare officials sought to reduce the
grandparents' contact with T as much as possible so as to be able to
proceed to having her adopted. In such a case any continued contact
between T and her grandparents would be in the hands of the adoptive
parents. The applicant therefore objected to having T adopted. Instead
she requested that an access plan be drawn up in order to regulate the
contacts between T and her grandparents. The applicant lodged
supplementary observations in March 1993.
On 5 October 1993 the competent County Governor (fylkesmannen)
dismissed the applicant's appeal. The Governor found that the
deprivation of parental rights with a view to having T adopted was in
accordance with sections 19 and 20 of the 1953 Act. As T was most
likely going to grow up in her foster home, affording the foster
parents the possibility to adopt her would be in her best interests.
It would then be for the adoptive parents to decide whether there
should be any contact between T and her maternal grandparents.
On 15 February 1994 the applicant contested the County Governor's
decision by bringing it before the competent City Court (byrett). The
two court-appointed experts submitted their opinions in July and
August 1994, respectively, and the City Court's hearing was held in
October 1994. Six witnesses and the two experts were examined. The
experts supported the appealed decision, though one of them recommended
not to proceed to an adoption within the next few years. Moreover,
according to the Social Welfare Centre, the foster parents had stated
that they would allow contacts between T and her grandparents.
On 4 November 1994 the City Court dismissed the applicant's
appeal. It noted, inter alia, that although the contact between T and
her grandparents had been reduced earlier on during the proceedings in
order to enable T to root herself in the foster family, the foster
parents intended to allow continued contact between T and her
grandparents. In that respect T's factual situation would therefore not
change much, should she be adopted. However, an adoption would, for
instance, confer on her the same legal status as her de facto sibling,
namely the foster parent's adoptive child. Considering all
circumstances, her adoption by the foster parents would be in her best
interest.
In her subsequent appeal of 8 January 1995 the applicant again
made clear that she accepted that T remain in public care in the home
of her foster parents. The applicant contended, however, that it would
not be in T's best interest to be adopted by the foster parents.
On 23 March 1995 the Appeals Selection Committee of the Supreme
Court (Høyesteretts Kjæremålsutvalg) refused the applicant leave to
appeal. This decision was notified to the applicant on 22 April 1995.
In July 1994 a second daughter, J, was born to the applicant. In
May 1995 the social welfare authority of K placed J in public care in
a foster home due to the parents' recidivist drug abuse. The parents
have not been deprived of their parental rights and apparently the
local authority does not intend to have J adopted. The applicant and
J meet regularly. At present T continues to live with her foster
parents but has not yet been adopted by them. She has been seeing her
maternal grandparents four times a year. It is the grandparents'
understanding that this contact will end if the adoption takes place.
COMPLAINTS
1. The applicant complains that her daughter T's placement in public
care with a view to being adopted, the deprivation of parental rights
and the secrecy order regarding her daughter's whereabouts effectively
cut all ties between the two, thereby violating the applicant's rights
under Article 8 of the Convention. The applicant also points to the
arbitrariness of the local authority's decision to place T in public
care (as opposed to that made by the local authority at K in respect
of her second daughter J).
2. The applicant furthermore complains that she was denied a hearing
within a reasonable time before an independent tribunal within the
meaning of Article 6 para. 1 of the Convention. It took over two years
before the deprivation of her parental rights was examined by the City
Court; the first "tribunal" within the meaning of Article 6 para. 1.
This passage of time was allegedly used as an argument against the
applicant.
THE LAW
1. The applicant complains that her daughter T's placement in public
care with a view to being adopted, the deprivation of parental rights
and the secrecy order regarding her daughter's whereabouts cut all ties
between the two, thereby violating the applicant's rights under
Article 8 (Art. 8) of the Convention.
(a) In so far as the complaint concerns T's placement in public care
and the secrecy order regarding her whereabouts the Commission
considers that it is not required to decide whether or not the facts
alleged by the applicant disclose any appearance of a violation of
Article 8 (Art. 8). The Commission recalls that under Article 26
(Art. 26) of the Convention, it "may only deal with the matter after
all domestic remedies have been exhausted, according to the generally
recognised rules of international law ...".
The Commission notes that in the domestic proceedings the
applicant, assisted by counsel, did not oppose the aforementioned
public care arrangements. Accordingly, she has not exhausted the
remedies available to her under Norwegian law. Moreover, an examination
of this aspect of the complaint does not disclose the existence of any
special circumstances which might have absolved her, according to the
generally recognised rules of international law, from exhausting the
remedies at her disposal.
It follows that this aspect of the complaint must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
(b) The Commission has next considered the complaint in so far as it
pertains to the deprivation of the applicant's parental rights with a
view to putting T up for adoption.
Article 8 (Art. 8) of the Convention provides, in so far as
relevant:
"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."
The mutual enjoyment by parent and child of each other's company
constitutes a fundamental element of family life and domestic measures
hindering such enjoyment amount to an interference with the right
protected by Article 8 (Art. 8) (see, e.g., Eur. Court HR, the
McMichael v. the United Kingdom judgment of 24 February 1995, Series
A no. 307-B, p. 55, para. 86). The impugned measure amounted to an
interference with the applicant's right to respect for her family life
as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. Such
an interference constitutes a violation of this Article unless it is
"in accordance with the law", pursues an aim or aims that are
legitimate under Article 8 para. 2 (Art. 8-2) and can be regarded as
"necessary in a democratic society".
While considering the impugned decision "arbitrary" the applicant
does not specify whether and, if so, why the interference was not "in
accordance with the law". Having regard to sections 19 and 20 of the
1953 Child Welfare Act, the Commission is satisfied that the
interference in question was "in accordance with the law".
The Commission is, moreover, satisfied that the contested measure
was aimed at protecting the "health" and the "rights and freedoms" of
the applicant's daughter and thus pursued legitimate aims within the
meaning of Article 8 para. 2 (Art. 8-2).
Turning to the question whether the interference was "necessary
in a democratic society", the Commission recalls that taking a child
into public care should normally be regarded as a temporary measure to
be discontinued as soon as circumstances permit and that any measures
of implementation of temporary care should be consistent with the
ultimate aim of reuniting the natural parent and the child. In this
regard, a fair balance has to be struck between the interests of the
child in remaining in public care and those of the parent in being
reunited with the child. In carrying out this balancing exercise, the
Court will attach particular importance to the best interests of the
child, which, depending on their nature and seriousness, may override
those of the parent (see, e.g., Eur. Court HR, Johansen v. Norway
judgment of 7 August 1996, Reports of Judgments and Decisions,
1996-III, pp. 1008-1009, para. 78).
The present applicant was deprived of her parental rights in the
context of a permanent placement of her daughter in a foster home with
a view to adoption by the foster parents. This measure was particularly
far-reaching in that it totally deprived the applicant of her family
life with the child and was inconsistent with the aim of reuniting
them. Such measures should only be applied in exceptional circumstances
and could only be justified if they were motivated by an overriding
requirement pertaining to the child's best interests (cf., e.g., the
above-mentioned Johansen judgment, loc. cit.). In the case in point
the applicant accepted at an early stage that access between her and
her daughter should not take place. Both her appeals on the domestic
level and her application to the Commission concern in essence the
potential effect which T's adoption by her foster parents might have
on T's relationship with her maternal grandparents. In finding that it
would be in the best interests of the child to place T in public care
with a view to her adoption the Client and Patient Committee took into
account, inter alia, that the contact between the applicant and T had
already been broken off and that the applicant would need long-term
rehabilitation against her drug abuse. It is true that initially the
Committee also prohibited the grandparents' access to T but it
transpires from the file that the three have nevertheless met fairly
regularly with the approval of the social welfare authority. In
upholding the Committee's decision the appeal organs noted the foster
parents' intention to allow the contacts between T and her grandparents
to continue.
In the circumstances of this case the Commission therefore
considers that the reasons adduced to justify the interference in
question were relevant and sufficient for the purposes of Article 8
para. 2 (Art. 8-2) (cf., e.g., Eur. Court HR, the Olsson v. Sweden
judgment of 24 March 1988 (no. 1), Series A no. 130, p. 32, para. 68).
Nor is there anything to suggest that the decision-making process
leading to the impugned decision was unfair or failed to involve the
applicant to a degree sufficient to provide her with the requisite
protection of her interests (cf., e.g., the aforementioned McMichael
judgment, pp. 55 and 57, paras. 87 and 92).
Accordingly, there is no indication of any violation of Article 8
(Art. 8) of the Convention.
It follows that this aspect of the complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains that she was denied a hearing within
a reasonable time before an independent tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. In so far as relevant
this provision reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
The reasonableness of the length of proceedings must be assessed
in the light of the particular circumstances of the case and having
regard to the criteria laid down in the Court's case-law, in particular
the complexity of the case, the conduct of the applicant and of the
relevant authorities and the importance of what is at stake for the
applicant in the litigation (see, e.g., Eur. Court HR, Duclos v. France
judgment of 17 December 1996, Reports of Judgments and Decisions,
1996-VI, pp. 2180-2081, para. 55). In view of the irreversible and
definitive character of the measures concerned, the competent national
authorities were required by Article 6 para. 1 (Art. 6-1) to act with
exceptional diligence in ensuring the progress of the proceedings (see
the above-mentioned Johansen judgment, pp. 1010-1011, para. 88). The
period to be taken into consideration for the purpose of assessing the
length of the proceedings under Article 6 para. 1 (Art. 6-1) began with
T's provisional placement in public care in June 1992. It ended in
March 1995, when the Supreme Court refused leave to appeal. The
proceedings thus lasted some two years and nine months.
The Commission notes that the case involved the hearing of
various witnesses and experts and must be considered somewhat complex.
As for the conduct of the authorities, the Commission notes that the
case was pending before the Client and Patient Committee for about
three months. The applicant's appeal to the County Governor was pending
for ten months. The City Court decided the matter within less than
nine months, whereas the Supreme Court refused leave to appeal within
two and a half months. The Commission cannot detect any delay at any
of these four levels for which the authorities could be held
responsible.
As for the applicant's own conduct, the Commission notes that,
although assisted by counsel, she appealed against the Client and
Patient Committee's decision only some four months later. The same is
true for her appeal against the County Governor's decision.
Accordingly, although the total length of proceedings might at first
sight raise concerns, the delays in the proceedings can reasonably be
held against the applicant due to her counsel's behaviour.
Nor can the Commission find that the passage of time was used as
an argument against the applicant.
Making an overall assessment, the Commission therefore considers
that the length of the proceedings was not excessive in the specific
circumstances of this case. Accordingly, there is no indication of any
violation of Article 6 para. 1 (Art. 6-1).
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy