SECOND SECTION
DECISION
Application no. 49993/21
T.G. and Others
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. 49993/21) 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 10 October 2021 by the applicants listed in the appended table (“the applicants”), who were represented by Ms C. Schjatvet, 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 the placement in public care of the first and second applicants’ child, X, who is the third applicant, and the limitation of contact rights in that context.
2. The first applicant is the mother of five children, including a daughter, X, born in 2015. The second applicant is the father of X, who is his only child. The first and second applicants had known each other for several years and decided to have a child together even though they were not a couple or living together. The child welfare services had been in contact with the first applicant since 2006 and, since then, various child welfare measures were adopted in respect of her four other children.
3. On 16 February 2017 the County Social Welfare Board issued a care order in respect of X. At the time, the first and second applicants had shared parental responsibility for X, whereas the first applicant was responsible for the daily care of X..
4. On 29 March 2019 the child welfare services, at the parents’ request, lodged an application with the Board to have the care order in respect of X lifted.
5. On 21 August 2019 the Board decided not to lift the care order. In its decision it set out the history of the case and the basis for the decision to issue the care order and then it went on to consider whether the circumstances had improved. It concluded that, although there had been some improvements, the first applicant was still unable to provide X with adequate care. The Board also considered that removing X from her foster home would cause her serious harm.
6. On 23 October 2020 the City Court gave judgment in review proceedings. As part of its proceedings, the City Court appointed an expert senior physician to examine the parents’ care abilities in light of X’s care needs, to issue a report and to give evidence during the hearing. The court noted that there was no doubt about the fact that X had been a victim of neglect when the care order had been issued.
7. At the time of the care order, there had been a general concern related to X’s safety in the home. The first applicant had issues controlling her anger and could throw items around. Furthermore, the child welfare services were worried that the lack of hygiene in the home was harmful to X’s health; among other things, the home was described as messy, with mould in the kitchen and faeces from all the household’s animals. X was primarily looked after by one of the older siblings, she had lost weight and her hygiene was not taken care of. When she was six months old, she showed no facial expressions and did not respond when attempts were made to establish contact. It also transpires that the first applicant at the time had contacted the child welfare services with concerns related to the second applicant’s transgressive and sexual behaviour towards X’s older siblings. The latter was reported to the police. The case was later dropped due to a lack of evidence.
8. In the subsequent period, the material conditions had improved. However, in the City Court’s assessment, there were still concerns about the personal care that X’s parents could provide her with.
9. The City Court concluded that the aim of reuniting the family could, nonetheless, not be abandoned. This required that reunification be facilitated through adapting the contact between X and her parents in combination with offering measures that could help the parents improve their caregiving skills. The City Court concluded that, while the care order could not be lifted, the first applicant’s contact should be increased to six times per year. As to the second applicant, contact sessions had been less successful and his contact was accordingly set at four times per year. Supervision was authorised.
10. On 11 February 2021 the High Court refused a request by the parents for leave to appeal against the City Court’s judgment.
11. On 14 April 2021 the Supreme Court dismissed an appeal by the parents against the High Court’s decision.
12. Relying on Article 8 of the Convention, in part “in combination” with Article 6, the applicants complained that there had been a lack of procedural guarantees owing to the manner in which the domestic authorities had assessed the evidence, that the contact sessions should not have been supervised and that the domestic courts had failed to assess whether there had been a violation of Article 8.
THE COURT’S ASSESSMENT
13. The Court notes that the first and second applicants also lodged the application on behalf of their daughter, X, the third applicant. As to the first and second applicants’ standing to apply to the Court on behalf of their child, the Court does not find it necessary in the instant case to examine that issue for the reasons set out below.
14. Moreover, with a view to the complaint that was lodged under Article 8 of the Convention “in combination” with Article 6, the Court reiterates that it is the master of the characterisation to be given in law to the facts of the case. 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 applicants under Article 6 of the Convention is closely linked to their 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).
15. The Court finds that the decision not to lift the care order in respect of X and the limitations on contacts between X and her parents entailed an interference with the applicants’ right to respect for their family life for the purposes of Article 8 § 1 of the Convention. Contrary to the applicants’ submissions, it does not find any basis for considering that the interference was not in accordance with the law, namely the 1992 Child Welfare Act, which was applicable at the material time. It also finds no basis for calling into question that it pursued the legitimate aim of protecting X’s “rights” and her “health”. The remaining question is whether the interference was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.
16. 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).
17. 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).
18. The Court considers, however, that there are important differences in the facts of the present case compared to those cited in the previous paragraph. In particular, as to whether relevant and sufficient reasons were provided for the decision not to lift the care order and the amount of contact granted at that time, the Court takes note of the detailed examination carried out by the City Court, which gave what became the final decision on the merits. That court considered X’s care needs, the parents’ caregiving skills and, in particular, the amount of contact which would address both X’s best interests at that time and her long-term interests in being fully reunited with her parents. On the specific topic of supervision of the contact sessions, the Court notes that the second applicant, X’s father, did not oppose it and even asked for guidance in connection with the contact sessions, which was one of the purposes of the provision of supervision. As concerns the contact sessions that would be carried out by the first applicant alone, the Court notes that the City Court gave a concrete explanation in that respect relating to the need to avoid X’s becoming involved in the first applicant’s conflicts with the child welfare services or being impacted by the first applicant’s negative attitude and mistrust of the foster home.
19. As regards the decision-making process, the Court observes that throughout the domestic proceedings, the first and second applicants were represented by individual legal aid lawyers, they had the opportunity to be present, give statements and present evidence. In addition to receiving statements from the first and second applicants, the City Court heard six witnesses and a court-appointed expert. The City Court made a concrete assessment of the evidence presented, and there is no appearance of any procedural shortcomings in this respect. The reasons provided for upholding the care order and the contact rights granted were detailed and thorough. In the Court’s assessment, the applicants’ interests were thus sufficiently protected in that process. The Court therefore considers that the reasons given by the domestic courts for their decisions were relevant and sufficient.
20. 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, expressly by reference to the ultimate goal of reunification of the family. 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).
21. In the light of the foregoing, the Court concludes that the interference with the applicants’ right to respect for their 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. The application is accordingly manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to 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
Appendix
List of applicants:
Application no. 49993/21
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
First applicant
1975
Norwegian
Sarpsborg municipality
2.
Second applicant
1971
Norwegian
Sarpsborg municipality
3.
Third applicant
2015
Norwegian
Sarpsborg municipality