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You are here: BAILII >> Databases >> European Court of Human Rights >> JOHANSEN v. NORWAY - 17383/90 [1996] ECHR 31 (7 August 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/31.html Cite as: [1996] ECHR 31, 23 EHRR 33, (1997) 23 EHRR 33 |
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In the case of Johansen v. Norway (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court B (2), as a Chamber composed of the
following judges:
Mr R. Bernhardt, President,
Mr R. Ryssdal,
Mr R. Macdonald,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr P. Kuris,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 26 January and 27 June 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
of Human Rights ("the Commission") and by the Government of the
Kingdom of Norway ("the Government") on 1 March and 3 April 1995
respectively, within the three-month period laid down by Article 32
para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It
originated in an application (no. 17383/90) against Norway lodged with
the Commission under Article 25 (art. 25) by a Norwegian citizen,
Ms Adele Johansen, on 10 October 1990.
The Commission's request and the Government's application
referred to Articles 44 and 48 (art. 44, art. 48); the request also
referred to the declaration whereby Norway recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the
request and of the application was to obtain a decision as to whether
the facts of the case disclosed a breach by the respondent State of its
obligations under Articles 6, 8 and 13 of the Convention (art. 6,
art. 8, art. 13).
Rule 35 para. 3 (d) of Rules of Court B, the applicant stated that she
wished to take part in the proceedings and designated the lawyer who
would represent her (Rule 31).
Mr R. Ryssdal, the elected judge of Norwegian nationality (Article 43
of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of
the Registrar, Mr Bernhardt drew by lot the names of the other
seven members, namely Mr R. Macdonald, Mr I. Foighel, Mr R. Pekkanen,
Mr A.N. Loizou, Mr J.M. Morenilla, Mr P. Kuris and Mr U. Lohmus
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant
to the orders made in consequence on 6 June and 13 November 1995, the
Registrar received the applicant's and the Government's memorials on
13 and 20 November 1995. On 20 December 1995 the Secretary to the
Commission indicated that the Delegate did not wish to reply in
writing.
Registrar received a number of documents from the Government and the
applicant, including particulars on the latter's Article 50 (art. 50)
claims.
Government a request that the memorials and appendices thereto not be
made accessible to the public and that the hearing on 23 January be
held in camera. The applicant and the Delegate of the Commission
submitted their comments on 16 and 17 January. On 19 and 22 January
the Government and the applicant accepted that the hearing be held in
public subject, inter alia, to the non-disclosure of the identity of
certain persons, including the applicant's daughter.
place in the Human Rights Building, Strasbourg, on 23 January 1996, in
public, in accordance with the terms indicated above. The Court had
held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr T. Stabell, Assistant Attorney-General
(Civil Matters), Agent,
Mr F. Elgesem, Attorney, Attorney-General's Office
(Civil Matters),
Ms T. Smith, Assistant Director-General, The Royal
Ministry of Child and Family Affairs,
Ms K. Ofstad, Adviser, The Royal Ministry of
Child and Family Affairs, Advisers;
(b) for the Commission
Mrs G.H. Thune, Delegate;
(c) for the applicant
Mrs S. Moland, advokat, Counsel,
Mrs K. Næss, advokat, Adviser,
Mr A. Salomonsen, Assistant.
The Court heard addresses by Mrs Thune, Mrs Moland, Mrs Næss
and Mr Stabell.
the applicant's memorials, subject to changes to the former, be made
accessible to the public but that those appendices thereto which
related to the domestic proceedings not be made so accessible
(see paragraph 6 above).
On the same date, he also decided to authorise the filing of
the applicant's letters of 16 and 22 January 1996, with their
enclosures, but to refuse that of the letter and enclosures received
on 19 January (Rule 39 para. 1, third sub-paragraph, of
Rules of Court B).
AS TO THE FACTS
I. Particular circumstances of the case
A. Background
when she was 16. In 1977, when she was 17 years old, she gave birth to
her son C. and they became dependent on assistance from the social
welfare authorities. From 1980 onwards the applicant cohabited with
a man who mistreated her and C. He was convicted of drug offences in
1983 and spent two years in prison. On many occasions the social
welfare authorities assisted the applicant in the upbringing of C., but
considerable problems as well as friction arose between those
authorities and the applicant. In August 1988 C. began to receive
treatment at the Child Psychiatric Department of Haukeland Hospital in
Bergen. In January 1989 he was admitted to a special school adapted
to his needs.
provisionally taken into care under section 11 of the Child Welfare Act
(Barnevernsloven) no. 14 of 17 July 1953 ("the 1953 Act"; see
paragraph 33 below), as the circumstances of the case disclosed a
danger to his health and development. The police assisted the child
welfare authorities in enforcing the decision. After spending the
period from November 1989 to early January 1990 at the
Child Psychiatric Department of Haukeland Hospital, C. was placed in
a children's home.
According to a statement of 10 January 1990 by the
Chief Physician, Ms Guri Rogge, and the Deputy Chief Physician,
Mr Arne Hæggernes, the applicant's and C.'s situation had been "rather
chaotic" throughout the period during which they had been in contact
with the hospital. When faced with difficulties, the applicant had
broken off her contact with the system which had been set up to assist
her. Her way of life had had a detrimental effect on C. and the fact
that he had changed schools had created much insecurity.
Bergen for Oslo. On 23 November she was given accommodation at the
Oslo Crisis Centre, an institution for women who had been victims of
domestic ill-treatment.
On the following day she went for an antenatal check-up at
Markveien Medical Centre in Oslo. She stated to the doctor concerned
that she had been taking valium, vival and paralgin during her
pregnancy and that she had hardly eaten during the last fortnight.
Because of her pregnancy and her state of health she was subsequently
referred to Ullevål Hospital in Oslo. The doctors there considered her
physical and mental state of health to be very poor, but refrained from
contacting the child welfare authorities, fearing that she might injure
herself if they did so.
B. Public-care measures in respect of the applicant's
second child
In view of the applicant's difficult situation and the problems with
regard to the upbringing of C., the child welfare authorities
(barnevernet) at Røa in Oslo were contacted. At a meeting on
8 December 1989 between the applicant and her lawyer and the child
welfare authorities the applicant's and S.'s situation was discussed.
On 13 December 1989 the Chairperson of the Client and Patient
Committee of Røa, district 24 (klient- og pasientutvalget i bydel 24,
Røa - "the Committee"), decided to take S. provisionally into care
under section 11 of the Child Welfare Act (see paragraph 33 below) on
the grounds that the applicant, because of her physical and mental
state of health, was considered incapable of taking care of her
daughter. The Chairperson considered that the child would be put at
risk if the decision were not implemented immediately.
In reaching the above decision, the Chairperson had regard to
the decision by the social welfare authorities in Bergen to take the
applicant's son provisionally into care and their intention of doing
so on a permanent basis, as well as their concern for the situation of
the baby whom they considered taking into care immediately after birth.
The Chairperson also took into account information provided by
Markveien Medical Centre, by Ullevål Hospital and by those who had
attended the meeting on 8 December 1989.
The applicant did not lodge any appeal against this provisional
care decision.
was placed in a short-term foster home linked to the
Aline Child Care Centre. The applicant was allowed to visit her twice
a week at the Centre. She did not challenge this access arrangement,
which was not based on any formal decision.
on 29 December 1989. The Committee obtained an expert opinion dated
13 February 1990 from Mr Knut Rønbeck, psychologist, which contained
the following conclusion on the applicant's ability to take care of S.:
"... On the surface, she appears to be a well-organised,
friendly and charming young woman. On meeting her, it may
therefore initially be difficult to understand that the child
welfare authorities and mental health authorities have had
such serious problems in achieving cooperation with her for
the benefit of her son. If one approaches her more closely,
however, a clear picture emerges of a woman with major
unsolved mental problems which strongly affect her social
functioning and her ability to care [for a child]. The
problems are expressed in the form of anxiety and depression.
Since her early youth, she has functioned fairly marginally
from a social point of view. For many years, she lived with
a man who she herself believes abused both her and her son,
but without being able to break out of this relationship.
...
... Having regard to [the applicant's] history in respect of
taking care of her child and due to her lack of knowledge
of/denial of her own faults vis-à-vis her own and [C.'s]
problems I regret that, as the expert in this case, I am not
hopeful about her future ability to take care of her children,
although she undoubtedly loves them and is attached to them.
In addition to these points [I] must add that [the applicant]
now realises that what the future holds in store is the
prospect of being a mother on her own in Oslo where she lacks
support from a social environment.
...
The child in this case [S.] is in a period of her life where
the attachment to preferably stable persons ought to develop.
It is of decisive importance for her personal development that
she now gets the opportunity to attach herself to persons whom
she may regard during her adolescence as stable and secure
parents."
Since the child welfare authorities refused her request, the applicant
herself engaged a psychologist, Mrs Lise Valla, who submitted her
opinion on 17 April 1990. This concluded:
"... I cannot find that there are sufficient reasons for
depriving [the applicant] of the care of her children [C.] and
[S.].
In my view [the applicant] shows responsibility when it comes
to considering the children's adolescence - and she is also a
person who may learn from the mistakes she has made.
It is clear, however, that [the applicant] will need some
practical assistance in the future. It is desirable that both
she and [C.] receive therapy in order to manage the emotional
gaps from the bad years - and I would consider it reasonable
that the public authorities should provide this. Furthermore,
[the applicant] ought to receive support so that she can
improve her level of education."
The above opinion was based on available documents and meetings
with the applicant and her son.
their examination of the case. Their report to the Committee of
30 March 1990, based on, among other material, talks with the
applicant, Mr Rønbeck's opinion and the case files of the child welfare
authorities in Bergen and Oslo, stated that if S. were to be reunited
with her mother, the child's mental health would be subjected to harm
or serious danger and she would live under such conditions as described
in section 16 (a) of the Child Welfare Act (see paragraph 32 below).
The report recommended that S. be taken into compulsory care pursuant
to section 19 of the Act, such measures being necessary in view of the
applicant's inability to provide satisfactory care for her daughter and
of the fact that the preventive care measures taken under section 18
of the Act in respect of her son C. had not been effective
(see paragraphs 33-34 below). The report further recommended that S.
be placed in a foster home with a view to adoption. Scientific
experience in recent years had shown that remaining a long-term foster
child instead of being adopted was disadvantageous for the child: the
foster parents could at any time cancel the agreement or the parents
might institute proceedings in order to be reunited with the child.
Adoption had the advantage of clarifying the situation and of creating
security and stability for the child and the adoptive parents.
Moreover, the report stated that, in order to secure the child's
development and its relationship with the persons who would permanently
assume the care, it would be appropriate for the authorities to deprive
the applicant of all her parental responsibilities (foreldreansvaret)
pursuant to section 20 of the Act (see paragraph 35 below).
As regards the question of access, the report added:
"While the girl has been at the Child Care Centre [the
applicant] has had access to her twice a week for one hour.
Following transfer of the girl to an approved foster home with
a view to adoption it is recommended that access be refused
and the address kept secret.
[The applicant] has previously tried to disappear with her son
in order to avoid the social welfare authorities and she did
not inform the social welfare office/authorities when her son
ran away from the children's home at Bergen in February 1990
in order to stay with her. Therefore, it is considered not
unlikely that she would intervene in a disturbing manner in
the foster home, and perhaps also try to take the girl with
her.
It is considered important for this child to have quiet and
stability in the new environment where she is placed. The
social welfare authorities will accordingly recommend that
[the applicant] be refused contact with the child and that the
child's new address be kept secret.
Today the girl has no relationship with her mother and,
therefore, it will not be necessary to phase out the access
arrangement before the girl is transferred to the foster
home."
Mrs Justice Inger Kristine Moksnes of the Oslo City Court (byrett),
examined the case. The applicant, assisted by a lawyer, called
three witnesses and the child welfare authorities called one witness.
Mr Rønbeck, the appointed expert, was heard, but not Mrs Valla, the
expert engaged by the applicant herself. As the costs in respect of
Mrs Valla's appearance were not covered by the State, she was not able
to attend the hearing.
A request by the applicant's counsel to be assisted by
Mr Reidar Larssen, a psychiatrist, as a representative was rejected by
the Committee on the ground that the applicant was already represented.
He was, however, allowed to appear as a witness and to attend the
hearing thereafter with no right to address the Committee.
The opinions of Mr Rønbeck and Mrs Valla and the child welfare
authorities' report of 30 March 1990 were available to the Committee.
On the basis of the information and evidence submitted to it
the Committee decided on 3 May 1990, by four votes to two, to take S.
into care; to deprive the applicant of her parental responsibilities
(which as a result were transferred to the child welfare authorities);
to place S. in a foster home with a view to adoption; to refuse the
mother access as from the moment of the child's placement in the
foster home and to keep the latter's address secret. In its decision
the Committee stated:
"With reference to the reports which have been submitted and
the submissions made during this meeting, the Committee's
majority, Mrs Ryberg, Mr Clausen, Mr Aasland and Mrs Moksnes,
finds that [the applicant] has very little chance of acting
satisfactorily in taking care of her daughter. The majority
stresses that [the applicant] has had sole responsibility for
the maintenance and care of her son, born in 1977. This task
she has not managed and the social welfare authorities have
taken this child into care. The [applicant] has received
special assistance since 1977 and has lived off social
security benefits since her son was 10 years old. She has
only worked for short periods. She has not lived with the
fathers of her two children but had for several years a
cohabitant who ill-treated her and her son, both physically
and mentally. He was part of the drugs scene in Bergen, as
she was at one time. He is now in prison, serving a sentence
for drug dealing. She has herself used drugs and alcohol and
has had intoxication problems. It is unclear how big a
problem this has been, but the Committee assumes that she has
no intoxication problems at present. It is not quite clear,
however, whether the problem has been solved also for the
future.
[The applicant] now maintains that she has broken with her
former friend and her previous life. She has moved to Oslo
and now appears to have a different lifestyle than the one in
Bergen. She has made a few social contacts but these are
dependent on circumstances and cannot be of decisive
importance. She has vague plans for the future, although she
expresses a wish to train as a nursing auxiliary.
However, the majority is of the opinion that the decisive
factor in this case must be that, according to the appointed
expert, [the applicant] has serious unsolved mental problems
which impair her social skills and her ability to take care
[of children]. Although her son has had considerable mental
problems she has not been able to cooperate with the
authorities and has not understood the necessity of giving his
needs priority over her own. She has not been able to
understand that the boy needed help and has not been willing
to accept assistance either. The majority fears that this
attitude may lead to her daughter's needs not being met either
if she remains with [the applicant]. The majority finds that
the daughter will live in such conditions that the
requirements of section 16 (a) of the Child Welfare Act are
fulfilled.
In connection with taking her son into care a number of
measures have been tried, and the majority therefore finds
that measures under section 18 would be ineffective. The
requirements for care under section 19 are accordingly
fulfilled. The majority also finds that the requirements
pursuant to section 20 of the Child Welfare Act are fulfilled.
[The applicant] is not particularly motivated to accept
treatment and there is little prospect of change in this
respect. The majority accordingly finds that it would be in
the interest of the child to be placed in a foster home with
a view to adoption. The next few years will be crucial for
the child and it is preferable that she should feel certain
that she will not be moved. It is of decisive importance for
the girl that she can now be attached to stable persons whom
she may regard as stable and secure parents in her
adolescence.
This is of decisive importance for the development of her
personality. Therefore she ought not to be exposed to a
foster-home agreement which may be revoked. She also ought to
form close relationships with a small number of people and
therefore ought to remain at a secret address pursuant to
section 19 of the Child Welfare Act, so that [the applicant]
no longer has access to her daughter when she is placed with
foster parents."
situation in life had improved since her removal from Bergen to Oslo
and that she should thus be given the opportunity to take charge of the
care of her daughter while staying at a special institution for that
purpose.
Oslo. During the spring of 1990, her son C. twice ran away from the
children's home in Bergen to join her in Oslo and, on the
second occasion, she indicated that she would not comply with the care
decision. As C. did not want to return to Bergen and as the applicant
considered that the social welfare authorities there did not do enough
to help him, she decided to let C. stay in Oslo. She managed to get
him admitted to a school there and she contacted a psychiatrist for
support.
care but on 19 June that care decision was lifted, notwithstanding the
fact that his care situation was still considered to be detrimental to
his physical and psychological development, a matter which continued
to be of great concern to the authorities. The conflict between the
authorities, on the one hand, and the applicant and her son, on the
other, had made it impossible to implement the care decision without
it being even more detrimental to the boy. The decision of 19 June was
subsequently confirmed by the Hordaland County Governor (Fylkesmannen)
on 13 March 1991. C. has lived with the applicant since May 1990.
C. Applicant's appeals against the care measures in respect of S.
the Committee's meeting of 2 May 1990 leading to its decision of
3 May 1990. As regards the taking into public care and the deprivation
of her parental responsibilities, the applicant lodged an appeal on
28 May 1990 against the decision of 3 May with the County Governor for
Oslo and Akershus. As far as the restrictions on access were
concerned, she requested the County Governor to give the appeal
suspensive effect (oppsettende virkning). She submitted that
continuing access was decisive for maintaining contact between her and
the child pending the appeal. The applicant also sent a copy of her
appeal to the Committee, which on 28 June 1990 decided to uphold the
decision of 3 May 1990 and to refer the case to the County Governor.
of the Public Administration Act (Forvaltningsloven) of
10 February 1967 decided not to give the appeal suspensive effect on
the grounds that it would be in the girl's best interests if the
decision of 3 May 1990 to terminate access were implemented as from the
moment the child was placed in the foster home.
S. was placed with foster parents on 30 May 1990. The
applicant has not had access to or seen her daughter since.
the deprivation of parental responsibilities. As she was informed that
her appeal to the County Governor of 28 May 1990 would remain pending
for four to five months, she instituted proceedings in the
Oslo City Court. She asked the court to set aside the Committee's
decision of 3 May 1990, maintaining inter alia that it was crucial that
her case be examined speedily, given that she had been refused access
to her daughter. On 24 October 1990 the City Court dismissed (avviste)
the application as such actions could only be instituted subsequent to
a decision in the matter by the County Governor. On 17 January 1991
the High Court (Lagmannsretten) rejected an appeal by the applicant on
the ground that the County Governor had in the meantime decided the
case (see paragraph 24 below) and there was therefore no reason to deal
with the appeal. A further appeal to the Supreme Court (Høyesterett)
was rejected on 7 March 1991.
lawyer, the County Governor for Oslo and Akershus upheld the
Committee's decision concerning care and parental responsibilities.
against the Ministry of Child and Family Affairs
(Barne- og familiedepartementet) in the Oslo City Court under
Chapter 33 of the Code of Civil Procedure (tvistemålsloven, Law no. 6
of 13 August 1915 -see paragraph 38 below), asking for the care
decision to be lifted and to be reunited with her daughter. In the
alternative she requested that her parental responsibilities be
restored.
On 20 December 1990 the defendant Ministry submitted
observations in reply.
experts on 1 February 1991 to evaluate the applicant's ability to take
care of her daughter and the consequences of revoking the care decision
and/or restoring the applicant's parental responsibilities. The
experts were requested to submit their opinions by 15 March 1991, which
they did.
On 8 February 1991 the parties were informed that the case had
been set down for 2 April 1991.
Mr Idar E. Pettersen, heard the case between 2 and 5 April 1991.
Having heard the applicant, represented by counsel, a representative
of the defendant Ministry, eleven witnesses and the two appointed
experts, the City Court, in a judgment of 16 April 1991, upheld the
taking into care and the deprivation of parental responsibilities. It
gave the following reasons:
"According to the Child Welfare Act the starting-point is that
a child should grow up with his or her natural parents. The
interests of the child may, however, warrant exceptions being
made to this general rule as it cannot be interpreted so as to
allow the child to be subjected to considerable harm.
In reviewing a compulsory measure imposed under the
Child Welfare Act the courts must as a starting-point rely on
the circumstances obtaining at the time of passing judgment.
The possible negative effects on the child of being returned
from the foster parents to the natural parents must be taken
into consideration. Regard must also be had to the fact that
the Child Welfare Committee [barnevernsnemnda] and the
County Governor may lawfully maintain a decision to take the
child into care even if the circumstances on which the
decision was based have later changed to such an extent that
the conditions for intervention pursuant to the
Child Welfare Act are no longer fulfilled.
After hearing the evidence the Court finds that such material
conditions [ytre betingelser] obtain as would allow the
applicant today to give her daughter, born on 7 December 1989,
an acceptable upbringing. In this respect there has been an
improvement in the situation since the child welfare
authorities took over the care of the daughter. [The
applicant] now appears to be permanently settled in Oslo
together with the father of her oldest child who also lives
with her. It appears quite clear that the applicant has great
concern for the child who has been taken from her. There can
hardly be any doubt that it is her intention to arrange things
as far as possible in order to assume the care of the child,
if she were to be returned to the mother, to the best of her
abilities. These being the facts in the present case, the
Court must examine whether returning the child from the foster
parents to her natural mother would entail a real danger of
harm to the child.
We have before us a case where the mother had the care taken
away from her shortly after birth. The mother has since had
very little contact with the child and is now a stranger to
her.
The experts appointed by the City Court are both in agreement
that the child would be in a critical situation if returned.
On this point, Mrs Seltzer, psychologist, states in her expert
opinion:
'She is today in the middle of a phase of development of
her personal autonomy which, in order for her to develop
without complications, depends on secure conditions and
stable emotional continuity. In the short term there can
be no doubt that the child would react with sorrow and
emotion if she were now to be removed from her foster
home. In the long run it is likely that if she were
removed at this stage of her development she would carry
with her into her future life an experience of insecurity
vis-à-vis other people, including those who represent
close and dear relations.'
The experts stress that a return in these circumstances would
entail a particular risk. This is so because [the child] has
twice already in her short life experienced a removal from her
natural mother, first shortly after birth and then at the age
of seven months when she was moved from the
[Child Care Centre] to her present foster parents. She would
therefore be particularly sensitive to further changes.
The child now lives under secure and stimulating conditions
with her foster family and, as the situation appears to the
Court, it is considered that the foster parents can give her
a safer upbringing than she would receive from her natural
mother. Furthermore, in the Court's view there is a real
danger that the mother will not be able to deal adequately ...
with the return of her child in a crisis. The mother's
history and previous contact with the public-support system
indicate that when, in such a pressing and threatening
situation, she needs help from that system, she will defend
herself with fear and aggression. It was in particular
Mr Reigstad, psychologist, who emphasised this. During his
oral explanations to the Court he has maintained the views
which he expressed in his written opinion but has also in his
oral explanations submitted further details concerning the
mother's personality. He is of the opinion that the mother
makes a projective identification. This means that she has
divided her world into two parts, one with friends and another
with enemies. Towards those whom she recognises as friends
she shows a secure and nice side of herself, whilst to those
whom she considers to be against her she reacts with deep
suspicion, fear and aggression. In Mr Reigstad's opinion, in
such a situation the mother will consider the public-support
system to be against her and will meet it with a
correspondingly negative attitude. This will place an
additional burden on the child and harm her permanently in the
form of a split character.
The expert witnesses called by the mother have all had a very
good impression of her. This goes for Mr Terje Torgersen,
doctor, Mrs Lise Valla, psychologist, and Mr Reidar Larsen,
psychiatrist. A common element for these persons is, however,
that none of them have had a patient-doctor relationship with
[the applicant]. Those who have been appointed by the child
welfare authorities and the Court, Mr Knut Rønbeck,
psychologist, Mrs Wenche Seltzer, psychologist and
Mr Ståle Reigstad, psychologist, have all found the mother to
be more complex. The Court considers that the appointed
experts, on the basis of their terms of reference and their
contacts with [the applicant] and others, have had the best
opportunity to evaluate her as a person. The Court has
therefore considerable hesitations about departing from [their
assessment]. The Court has examined the [assessment] in the
light of the other submissions in the case and, not least, the
basic principles of the Act on the lifting of a care decision.
In the Court's view the experts have done a very thorough job.
The conclusions are clear and appear well-founded. Their
statements confirm and elaborate the overall impression
which the Court has formed of the case. The Court, therefore,
considering the case as a whole, will base its decision on the
experts' assessment. In the Court's opinion, there is nothing
in the case to suggest that it should depart from their
assessment.
In the light of the above the Court finds that, because of the
likely reactions of the child to changes to her environment,
it would be a particularly demanding task for the mother to
assume the care of her. In view of what is known about the
mother's present situation and her history it is unlikely that
she will be able to cooperate with the social assistance
provided by society without friction. Accordingly, having
regard to the concrete circumstances of the case as a whole,
the Court reaches the conclusion that the County Governor's,
and thus also the social welfare authorities', decision to
take the child into care should be upheld.
The next question is whether the decision should be limited to
the taking into care or should also cover parental
responsibilities pursuant to section 20 of the
Child Welfare Act. In this respect the Court points out that
it is clear that section 20 has been applied with a view to
adoption. The foster parents wish to adopt [the child] and in
view of the information available to it the Court assumes
that, unless the present decision is limited to taking into
care, adoption will be the end result.
The Court considers that for it to apply ... section 20, it
must be satisfied that this is necessary in order to secure
proper care for the child. What is required will depend on
the purpose of depriving the parents of their parental
responsibilities and the situation in general. If the aim is
to free the child for adoption, very weighty reasons are
required. Section 20 may be applied with a view to adoption
only in very special circumstances. It must be a condition
that the parents will be unable to give the child appropriate
care and that this would be a permanent situation. When
parental responsibilities are taken away with a view to
adoption the question arises whether the child and the natural
parents should be permanently deprived of contact with each
other, with the consequences for reunification which that
entails.
In the Court's opinion a condition for the transfer of
parental responsibilities with a view to adoption is that it
is obvious that the child cannot in the foreseeable future be
reunited with the parents. In the present case, both
appointed experts have recommended to the Court that the
child's placement in the foster home be made permanent. One
of [them], [Mr] Reigstad, states in this respect:
`Assessment of the question of parental responsibilities
and adoption
When considering this question in the present case we
find, in addition to the general consideration that in
such cases adoption is always an advantage for the child,
concrete and real reasons militating in favour of
adoption.
The applicant's problems are in my view long-standing and
well established in her overall character. They can be
documented back to 1977 and have been almost constantly
present during her entire adult life. It follows that she
is unlikely to solve them in the foreseeable future and
that the situation therefore has a certain permanent
character.
In addition, were the applicant to be given access to the
foster home she would in all likelihood destroy the home's
security and make it unsuitable as a foster home for the
child. This must be seen in the light of the crusade the
applicant has led over the last years against the child
care authorities and of the fact that she has clearly
stated that her aim is to get her daughter back. In
addition, the fact that she earlier hid her son from the
child care authorities in Bergen and was supported in this
by her lawyers in Oslo on the whole gives very little
reason for optimism in respect of her future cooperation
with the foster home.
I have therefore reached the conclusion that it would be
in the interest of the daughter to remain in the
foster home and that permission be granted to adopt her so
that [the foster parents] also acquire the parental
responsibilities.
Having regard to my terms of reference, my conclusion is
accordingly:
Conclusion
A. If the daughter were to be reunited with her natural
mother there is a considerable danger that she would not
recover from her separation crisis, which would cause her
permanent harm. There are also objective grounds for
doubting that the mother would be capable of ensuring that
the daughter receives such necessary medical and
psychological assistance as she needs. For these reasons
I cannot recommend to the Court that the child and her
natural mother be reunited.
B. I assume that the aim of letting a natural mother keep
her parental responsibilities in respect of a child placed
in a foster home is to allow her access to the home and to
participate in, or take, important decisions regarding the
child. In the circumstances, access to the foster home or
even lifting of the secrecy of the home's address would
destroy the security of the foster parents and make the
home unsuitable as a foster home. In both the short and
the long run this would be detrimental to the child.
C. In my view the best solution from the child's point of
view would be to deprive the mother of her parental
responsibilities and to allow the foster family to adopt
the child. This would secure the child a stable and
appropriate upbringing and would bind the child to its new
family without reservation.'
In this regard, the other expert, [Mrs] Seltzer, states:
`If the child remains in the foster home and the
foster parents continue to act as the [child's]
foster parents, I consider that it would be impractical
and possibly complicating if a person other than the
foster parents were to assume parental responsibilities.
I consider also that it would be in the best interests of
the child for her to belong, fully, formally and
uninterruptedly to one place. In addition one cannot
disregard the fact that an arrangement dividing the care
and the parental responsibilities may create insecurity
and represent a potential source of conflict between the
adults, with the child in between. In certain
circumstances it can also be difficult to manage the daily
care in a satisfactory manner if the parental
responsibilities are assumed by another party. If the
Court nevertheless decides to split the daily care and
parental responsibilities, this requires good cooperation
between the parties, something which at present cannot be
taken for granted having regard to the fact that the
foster parents and the natural mother have not met each
other. I recommend that the daily care and the parental
responsibilities be entrusted to those who have the daily
care of the child.'
Both experts, in their oral submissions to the Court, have
stated that their views have been strengthened by the
submissions made during the examination of the case.
As regards the question whether the mother would be able to
give the child proper care on a permanent basis, [Mr] Reigstad
states that the mother lacks today and will lack in the
foreseeable future the necessary ability to do so.
[Mr] Rønbeck was of the same opinion when he submitted his
report in connection with the case. [Mrs] Seltzer for her
part is of the opinion that today the mother is probably
capable, in favourable and clear circumstances, of taking care
of the child but the mother's situation is uncertain. She
suggests therefore that it would be in the child's interests
to stay where she is.
As the Court understands the expert evidence, it is
obvious that the mother could not properly take care of the
child on a permanent basis. Also as regards the question of
parental responsibilities, the Court attaches decisive weight
to the experts' assessment. The Court further agrees with the
experts that allowing the [applicant] access to the
foster home would entail a real danger of conflict between the
foster parents and the natural mother. The Court refers in
this connection to what has been said about the mother's ways
of reacting. It follows that there are strong and real
factors militating in favour of adoption. The special
interests which might weigh against adoption in the present
case cannot in the opinion of the Court be decisive. The
Court here points out that the natural mother is a stranger to
the child, who, as far as the Court has been informed, has not
had any particular contact with the mother. After a general,
concrete evaluation the Court has accordingly reached the
conclusion that the decision concerning the transfer of
parental responsibilities shall also be maintained."
Supreme Court. The defendant Ministry filed a reply on 19 June 1991.
On 23 August 1991 the applicant was requested to submit further
observations by 6 September 1991, which she did on 5 September 1991.
On 19 September 1991 the Appeals Committee of the Supreme Court
(Høyesteretts Kjæremålsutvalg) refused leave to appeal.
D. Subsequent developments
Denmark. She now lives there with C.'s father. C. now lives near
Copenhagen where he works. The applicant gave birth to a
second daughter on 14 December 1991. According to the
Danish authorities this child has developed well. A second son was
born in 1993. The applicant's daughter S. is still living with her
foster parents. No decision concerning her adoption has yet been
taken.
A report of 30 January 1994 by Mrs An-Magritt Aanonsen,
psychologist, which is favourable both to the applicant and to the
foster parents, concluded:
"1. Both mother and child today seem to be doing well. The
mother is cohabiting in a steady relationship with the father
of three of her four children. She seems to give satisfactory
care to her children and copes well with her everyday
situation and has managed to handle problems which have arisen
without any special help.
The child has formed a strong primary attachment to her
foster parents who provide her with good conditions for
growing up and who appear genuinely fond of her and very
committed.
2. In the previous section, I discussed the consequences of
establishing a right of contact. Given the child's situation
today it is not desirable to establish a right of access at
present unless there is some change in the conditions of care
placement. It is desirable for the child to have the greatest
possible continuity and stability, something that is best
achieved by permanent placement with her present carers.
3. I have also discussed above the consequences of
establishing a right of access with respect to the child's
care position and the importance this will have for her
development. I have indicated a type of arrangement that it
would be possible to introduce without any consequences for
the care situation.
In conclusion, I would stress that one thing we know today is
that it is important for a child's development for him or her
to have stability, continuity and carers who take
responsibility for and are fond of it and help it affirm
itself as a person. It is in the child's interest that the
carers should be confident that it is they who take decisions
about important events in the child's life. This must be
taken into account if a right of access or visit is
established."
II. Relevant domestic law
A. The 1953 Child Welfare Act
Compulsory care measures>
based on provisions set out in the Child Welfare Act of 17 July 1953
("the 1953 Act"), which was replaced by new legislation on
1 January 1993 (see paragraphs 41-45 below).
this case, was that, generally speaking, it was in the best interests
of a child for it to be cared for by its natural parents. If the child
had been taken into care, the best solution would in principle be for
the natural parents to remain in contact with it and retain parental
responsibilities.
be taken if a child lived in such conditions that its physical and
mental health was likely to be impaired or was seriously endangered.
It was established case-law (see the Supreme Court's judgment of
6 November 1986, Norsk Retstidende ("NRt") 1986, p. 1189, and judgment
of 21 January 1987, NRt 1987, p. 52) that such a measure could be taken
not only where such harm had materialised but also where there was a
clear risk of harm. Consequently, under this provision, a child could
be taken into care immediately after birth.
(forebyggende tiltak), such as placing the child's home under
supervision, furnishing financial assistance, ensuring placement in a
kindergarten or a school, or providing care and treatment.
If such preventive measures were considered to be ineffective
or had proved to be of no avail and leaving the child in its current
situation pending care proceedings would entail a risk of harm to
the child, section 11 of the Act empowered the Health and Social Board
(helse- og sosialstyret), hereinafter "the Board", or if necessary its
chairperson, to take a child into care on a provisional basis. Where
such an interim measure had been taken, the case had to be brought
before the Board, often represented by its
Client and Patient Committee. Provided that the requirements of
section 16 were fulfilled, the Board or the Committee could decide to
take the child into public care (overta omsorgen) pursuant to
section 19 of the Act. In practice the child was usually transferred
to a suitable child care centre or a foster family.
the authorities to restrict the parents' access to their child where
the child had been taken into public care. However, according to an
authoritative interpretation of section 19 by the Ministry of Justice,
Department of Legislation (Justisdepartementets lovavdeling), the Board
or the Committee could also determine the extent of the parents' right
of access and whether or not the address of the foster family should
be kept secret (see the Department's statements of 28 October 1964 and
14 March 1966).
into care in accordance with the above rules they could also decide,
pursuant to section 20 of the Act, to deprive the natural parents of
their parental responsibilities. Section 20 did not set out the
circumstances in which such a measure could be taken but, according to
the Supreme Court's case-law, it should be supported by weighty
reasons. A decision to deprive the natural parents of their parental
responsibilities could not be taken unless the long-term consequences
of alternative arrangements were considered (see the Supreme Court's
judgments of 20 December 1990, NRt 1990, p. 1274, and of 23 May 1991,
NRt 1991, p. 557). Measures under section 20 were often taken with a
view to adoption by the foster parents. Adoption represented a final
break in the legal relations between the child and its natural parents.
The notion of parental responsibilities, which is defined in
Chapter 5 of the Child Act (Barnelova) no. 7 of 7 April 1981, comprises
two elements: firstly a duty of care (omsut og omtanke), and secondly
a duty and a right to decide, within certain limits, for the child in
its personal matters (personlege tilhøve) (sections 30 to 33). The
latter include decisions on the child's place of residence, general
education, religious and civic education, medical and dental treatment,
consent to marriage, adoption and employment (Lucy Smith and
Peter Lødrup in Barn og Foreldre, 4th edition, Oslo 1993, pp. 67
and 71). In the present judgment the right of the parent to decide on
the child's personal matters is referred to as "parental rights".
when the child was 21 years of age or when there were no longer any
reasons to maintain the measures (section 48).
2. Administrative and judicial remedies against compulsory
care measures
care, to deprive the parents of their parental responsibilities or to
restrict access under the 1953 Act could be appealed against to the
County Governor by any person affected by the measure (sections 52 and
54 of the Act). Orders on access could in addition be appealed against
to the Ministry of Child and Family Affairs (section 53 (2) of the
1953 Act).
care decisions and the deprivation of parental responsibilities, but
not access, could form the subject of an appeal to the City or
District Court under a special procedure provided for in Chapter 33 of
the Code of Civil Procedure. The court had jurisdiction to review all
aspects of the case (Article 482).
An appeal against a judgment by the City or District Court lay
directly to the Supreme Court (Article 485). This was to give priority
to the kind of cases to which Chapter 33 of the Code applied, as is
illustrated by Article 478 of the Code which provided that the
proceedings must be dealt with speedily.
the County Governor restricting access were governed by the ordinary
procedure laid down in Chapter 30 of the Code of Civil Procedure and
the general principles of judicial review of administrative decisions.
Such review covered not only questions of fact and of law but also to
some extent the exercise of administrative discretion (for a more
detailed description, see the E. v. Norway judgment of 29 August 1990,
Series A no. 181-A, pp. 18-19, paras. 40-42).
had been rejected, they were not entitled to apply for fresh review
proceedings until one year after the prior decisions had become final
(section 54 of the 1953 Act). However, no such right to review applied
if the child had been adopted in the meantime, as adoption meant a
definite break between the child and its natural parents.
B. The Child Welfare Services Act 1992
Child Welfare Services Act no. 100 of 17 July 1992 ("the 1992 Act").
Among other reforms the 1992 Act introduced a new adjudicating body in
the child welfare administration, namely the County Social Welfare
Board ("the County Board"), which was established in accordance with
the Social Services Act (sosialtjenesteloven) no. 81 of
13 December 1991. The major reason for this change was to reinforce
the legal protection of the parents and the child.
Like the 1953 Act, the 1992 Act stresses that "crucial
importance shall be attached to framing measures which are in the
child's best interest" (section 4-1).
conditions for compulsory care measures and deprivation of parental
responsibilities are essentially the same as those that applied under
the 1953 Act. The Supreme Court's case-law predating the 1992 Act
remains applicable.
been taken into care is a separate issue. If the parents object to
adoption, such a measure cannot be taken unless the County Board gives
its consent. Under the more detailed provisions of the 1992 Act
(section 4-20 (2) and (3)), the County Board may only give its consent
if the parents will be permanently unable to provide the child with
reasonable care, or if removing the child may lead to serious problems
for him or her because of his or her attachment to the persons and the
environment where he or she is living. In addition, an adoption must
be in the child's best interest and the prospective adoptive parents
must have been the child's foster parents and have shown themselves fit
to bring up the child as their own. According to the preparatory works
this implies that consent to adoption should not be given unless the
child has lived in the foster home for some time.
a provision to the effect that both the child and the parent have a
right of access unless the County Board decides otherwise in the
child's interests. The preparatory works of the new Act emphasise the
importance of contact between the child and its parents.
courts under the special provisions of Chapter 33 of the
Code of Civil Procedure (section 9-10 of the Social Services Act). The
system of judicial review of public-care decisions is amended on
two major points.
Firstly, whereas judicial review of care decisions and
deprivation of parental responsibilities under the 1953 Act presupposed
a prior decision by the County Governor, an appeal against such
decisions taken by the County Board under the 1992 Act lies directly
to the City Court.
Secondly, whilst the special Chapter 33 review did not apply
to access restrictions under the 1953 Act, it now does when such
restrictions have been imposed under the 1992 Act (section 7-1).
PROCEEDINGS BEFORE THE COMMISSION
(no. 17383/90), Ms Johansen complained that there had been a violation
of her right to respect for family life as guaranteed by Article 8 of
the Convention (art. 8) on account of the order to take her daughter
into public care, the deprivation of her parental rights, the
termination of her access to her daughter, the excessive length of the
proceedings and their lack of fairness. She also invoked Article 6 of
the Convention (art. 6) (right to a fair hearing within a reasonable
time). In addition, she complained that, contrary to Article 13
(art. 13), she had not been afforded an effective remedy in respect of
her complaint under Article 8 of the Convention (art. 8).
admissible. In its report of 17 January 1995 (Article 31) (art. 31),
the Commission expressed the opinion that there had been no violation
of Article 8 of the Convention (art. 8) with regard to the taking of
her daughter into care and the maintenance in force of the care
decision concerned (unanimously); that there had been a violation of
Article 8 (art. 8) as regards the decision depriving the applicant of
her parental rights and access (by eleven votes to two); that no
separate issue arose either under Article 6 (art. 6) (by twelve votes
to one) or Article 13 (art. 13) (unanimously). The full text of the
Commission's opinion and of the two partly dissenting opinions
contained in the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-III), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
done in their memorial, invited the Court to hold that there had been
no violation of Article 6 or 8 of the Convention (art. 6, art. 8).
the Court stated in her memorial to find that there had been a breach
of Articles 6 and 8 (art. 6, art. 8).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)
S., the refusal to terminate the care and the deprivation of her
parental rights and access gave rise to violations of Article 8 of the
Convention (art. 8), which provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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 in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others."
considered that there had been no violation with regard to the taking
into public care and the refusal to terminate the care, but that there
had been a violation with regard to the deprivation of the applicant's
parental rights and access.
A. Was there an interference with the applicant's right to
respect for family life?
of each other's company constitutes a fundamental element of family
life and that domestic measures hindering such enjoyment amount to an
interference with the right protected by Article 8 (art. 8)
(see, amongst others, the McMichael v. the United Kingdom judgment of
24 February 1995, Series A no. 307-B, p. 55, para. 86). The impugned
measures, as was not disputed, evidently amounted to interferences with
the applicant's right to respect for her family life as guaranteed by
paragraph 1 of Article 8 of the Convention (art. 8-1). Such
interference constitutes a violation of this Article (art. 8) unless
it is "in accordance with the law", pursues an aim or aims that are
legitimate under paragraph 2 of Article 8 (art. 8-2) and can be
regarded as "necessary in a democratic society".
B. Were the interferences justified?
exception, before the Court that the impugned measures had a basis in
national law and, to that extent, the Court is satisfied that such was
the case.
written pleadings dealing with the necessity of the interference - to
the effect that the provisional taking into care of her daughter had
failed to fulfil the condition as to risk of harm in section 11 of the
Child Welfare Act 1953 (see paragraphs 12 and 33 above).
with Norwegian law.
into care of the daughter had a basis in Norwegian law; it observes
that the applicant, although she could have done so, did not appeal
against that measure but only challenged the subsequent decision to
take into care on a permanent basis, which measure was upheld by the
City Court as being lawful.
relevant law (see paragraphs 32-35 above) was framed in vague terms its
effects were unforeseeable and it thus failed to satisfy one of the
quality requirements implied by the expression "in accordance with the
law" (see, for instance, the Margareta and Roger Andersson v. Sweden
judgment of 25 February 1992, Series A no. 226-A, p. 25, para. 75).
that the law in question was rather broad in its terms but that it was
impossible to formulate legal rules with absolute precision in this
field. Also, since the imposition of measures under that law was to
a large extent subject to judicial review, there were important
safeguards against arbitrariness.
that the relevant domestic law was not foreseeable for the purposes of
paragraph 2 of Article 8 (art. 8-2).
domestic law was clearly intended to protect the interests of children
and that there was nothing to suggest that it was applied for any other
purpose.
at protecting the "health" and "rights and freedoms" of the applicant's
daughter and thus pursued legitimate aims within the meaning of
paragraph 2 of Article 8 (art. 8-2).
respect for family life had been "necessary". In this connection she
challenged a number of aspects of the domestic decisions, namely
(1) the decision-making process before the Committee
(see paragraphs 14-17 above); (2) the merits of the taking into care
of her daughter S. and the maintenance in force of the care decision;
(3) the merits of the deprivation of her parental rights and access;
and (4) the length of the entire proceedings.
Commission disagreed on the first and second points but shared the
applicant's view as regards the third point, taking into account the
argument concerning the length of the proceedings.
in a democratic society", the Court will consider whether, in the light
of the case as a whole, the reasons adduced to justify them were
relevant and sufficient for the purposes of paragraph 2 of Article 8
(art. 8-2) (see, inter alia, the Olsson v. Sweden (no. 1) judgment of
24 March 1988, Series A no. 130, p. 32, para. 68).
In so doing, the Court will have regard to the fact that
perceptions as to the appropriateness of intervention by public
authorities in the care of children vary from one Contracting State to
another, depending on such factors as traditions relating to the role
of the family and to State intervention in family affairs and the
availability of resources for public measures in this particular area.
However, consideration of what is in the best interest of the child is
in any event of crucial importance. Moreover, it must be borne in mind
that the national authorities have the benefit of direct contact with
all the persons concerned (see the Olsson v. Sweden (no. 2) judgment
of 27 November 1992, Series A no. 250, pp. 35-36, para. 90), often at
the very stage when care measures are being envisaged or immediately
after their implementation. It follows from these considerations that
the Court's task is not to substitute itself for the domestic
authorities in the exercise of their responsibilities for the
regulation of the public care of children and the rights of parents
whose children have been taken into care, but rather to review under
the Convention the decisions that those authorities have taken in the
exercise of their power of appreciation (see, for instance, the
Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A,
p. 20, para. 55).
The margin of appreciation so to be accorded to the competent
national authorities will vary in the light of the nature of the issues
and the seriousness of the interests at stake (see the Sunday Times
v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A
no. 30, pp. 35-37, para. 59). Thus, the Court recognises that the
authorities enjoy a wide margin of appreciation in assessing the
necessity of taking a child into care. However, a stricter scrutiny
is called for both of any further limitations, such as restrictions
placed by those authorities on parental rights and access, and of any
legal safeguards designed to secure an effective protection of the
right of parents and children to respect for their family life. Such
further limitations entail the danger that the family relations between
the parents and a young child are effectively curtailed.
It is against this background that the Court will examine
whether the measures constituting the interferences with the
applicant's exercise of her right to family life were "necessary".
(a) The decision-making process
had been inadequate. Not only had the authorities been
over-represented, but their expert, Mr Rønbeck, had had a more
favourable position at the hearing than the psychologists whom the
applicant had wanted to be present: Mrs Valla had not been summoned and
Mr Larssen had not been allowed to address the Committee
(see paragraph 17 above). In addition, the fact that the hearing had
continued until late at night had adversely affected the applicant's
possibility of presenting her views in a fully satisfactory manner.
3 May 1990 after hearing the views of the applicant and her counsel.
Mr Rønbeck had moreover been appointed with the applicant's agreement
and it was only after he had presented his opinion that she requested
the appointment of another psychologist, Mrs Valla. Although the
latter was not heard directly by the Committee, her report was
submitted to it (see paragraph 17 above).
In the circumstances, there is nothing to suggest that the
decision-making process leading to the adoption of the impugned
measures by the Committee was unfair or failed to involve the applicant
to a degree sufficient to provide her with the requisite protection of
her interests (cf. the W. v. the United Kingdom judgment of
8 July 1987, Series A no. 121, pp. 28-29, paras. 64-65; and the
above-mentioned McMichael judgment, pp. 55 and 57, paras. 87 and 92).
In addition, it is to be noted that, before deciding the applicant's
appeals, the County Governor and the City Court heard the applicant and
her counsel (see paragraphs 24 and 27 above). The Court therefore
agrees with the Government and the Commission that the procedure did
not give rise to a breach of Article 8 (art. 8).
(b) The merits of the impugned measures
(i) The taking into care and the refusal to terminate the care
Committee's majority had wrongly relied on Mr Rønbeck's assessment
(see paragraphs 14 and 17 above). In concluding that she was incapable
of assuming the care of her daughter, he had over-emphasised the
importance of her difficult past in Bergen. The minority had correctly
based its opinion on the assessment by the psychologist Mrs Valla, who,
in the light of the improvements in the applicant's situation after she
moved to Oslo, had considered her suitable as a carer, as was confirmed
by the subsequent opinions of two other psychologists, Mrs Seltzer and
Mrs Aanonsen (see paragraphs 18, 27 and 29 above). Indeed, even the
City Court had found her suitable when adjudicating the case
(see paragraph 27 above).
According to the applicant, any uncertainty as to her ability
to care for her daughter could have been reduced by resorting to
preventive care measures. For instance, the authorities could have
acceded to the applicant's request for a place in a mother-and-child
unit, which would have enabled her to prove she was capable of assuming
care while under the supervision of the child welfare authorities. Any
lack of cooperation between her and the child welfare authorities in
Bergen had stemmed from her extremely difficult situation while living
there and did not mean that she would not cooperate with the
authorities in Oslo; on the contrary she had declared her willingness
to do so.
against the care decision, had in her view attached excessive weight
to her past in Bergen and too little to the improvements in her ability
to provide care after her move to Oslo.
undesirable consequence that a new-born baby placed in a foster home
could never be reunited with his or her natural parent even though the
latter, as here, was deemed capable of assuming care. Since care
measures were in principle to be temporary in character, the
authorities should instead have sought gradually to return the child
to the applicant.
the taking into care and the maintenance in force of the care decision
were "necessary" within the meaning of paragraph 2 of Article 8 of the
Convention (art. 8-2).
of 13 December 1989 to take the applicant's daughter S. provisionally
into care was taken on the grounds that the applicant, in view of her
physical and mental state at the time, was deemed unable to provide
satisfactory care for her daughter, who would thus be at risk if she
were to remain with the applicant. The Chairperson had regard not only
to statements by medical officers in Oslo but also to those of the
child welfare authorities in Bergen, which, after several years'
concern for the applicant's son C., had provisionally taken him into
care and had contemplated such a measure also with regard to the
daughter S. immediately after her birth (see paragraph 12 above).
Furthermore, in deciding to take S. into care on a permanent
basis, the Committee attached decisive weight to Mr Rønbeck's
assessment that the applicant suffered from serious unsolved mental
problems impairing her social skills and her ability to take care of
children. It considered that, if S. were to remain with the applicant,
it was likely that the child would live under such conditions as would
damage her physical and mental health. Having failed to understand her
son C.'s need for care, the applicant had opposed attempts by the
authorities to assist her in this matter. The fact that preventive
care measures in respect of her son had been ineffective suggested that
this kind of measure would also be unsuccessful with regard to her
daughter. There was little reason to believe that the applicant would
be motivated to accept treatment. The child was at a stage of her
development where it was crucial that she should become attached to
stable and secure persons without fearing that she would be moved. In
these circumstances, the Committee considered, it was in her best
interests to be taken into care (see paragraphs 14 and 17 above).
Moreover, the County Governor's decision of 9 November 1990
upholding the Committee's decision to take S. into care was based
essentially on the same reasons (see paragraph 24 above).
material conditions (ytre betingelser) had improved to a point where
the applicant was able to provide S. with a satisfactory upbringing but
held nevertheless that the measure should remain in force. It
considered that, since S. had been taken into care shortly after birth,
had had very little contact with her mother and had already been moved
twice, returning her to the mother would entail a particular risk to
her development. As the child was in the middle of a phase of
development of personal autonomy, it was crucial that she live under
secure and emotionally stable conditions, such as obtained in the
foster home. Moreover, at this critical stage of her upbringing, there
was a real danger that the applicant would be unable to deal adequately
with the child's reactions to the change of environment
(see paragraph 27 above).
taking of the applicant's daughter S. into care and the maintenance in
force of the care decision concerned were based on reasons which were
not only relevant but also sufficient for the purposes of paragraph 2
of Article 8 (art. 8-2). The measures were supported by painstaking
and detailed assessments by the experts appointed by the Committee and
the City Court. The finding of fact being primarily a matter for the
national authorities, the Court will not substitute its views for
theirs as to the relative weight to be given to the expert evidence
adduced by each party (see paragraph 64 above). It considers that in
taking the above care measures the national authorities acted within
the margin of appreciation afforded to them in such matters.
Accordingly, these measures did not constitute a violation of
Article 8 (art. 8).
(ii) The deprivation of parental rights and access
care should in principle be a temporary measure to be discontinued as
soon as circumstances permit. The deprivation of the applicant's
parental rights and access had a permanent character and could only be
considered "necessary" within the meaning of Article 8 para. 2
(art. 8-2) if supported by particularly strong reasons. However, the
applicant's state of health had not been such that she would have been
permanently unable to care for her daughter. The argument that the
applicant might disturb the calm and stable foster-home environment
could not be decisive as access arrangements could have been
implemented outside the foster home. Having regard to the improvements
in the applicant's situation and the irreversible effects which the
deprivation of the applicant's parental rights and access had on her
enjoyment of family life with her daughter, the measures could not be
said to be justified.
parental rights and access were in her daughter's interest. On the
contrary, the mother's contact with her child during the period
preceding her placement with the foster parents had been positive and
such contact could have contributed to a stable development of the
child's identity had it been allowed to continue. The applicant
further stressed that the measures had not been based on proper and
repeated reviews of the specific circumstances of her case but on a
general and prevailing view that adoption offered better prospects for
the child's welfare than long-term fostering. Having been taken
primarily to facilitate adoption, the measures had seriously and
permanently prejudiced the applicant's interests by depriving her of
any prospects of being reunited with her daughter.
necessity test to be applied under Article 8 of the Convention
(art. 8), rather than attempting to strike a "fair balance" between the
interests of the natural parent and those of the child, should attach
paramount importance to the best interests of the child, a principle
which was firmly rooted not only in the laws of the
Council of Europe member States but also in the Organisation's own
policies (see Council of Europe: Committee of Ministers
Resolution (77) 33 on placement of children, adopted on
3 November 1977; 16th Conference of European Ministers of Justice,
Lisbon, 21-22 June 1988, Conclusions and resolutions of the conference,
pp. 5-6). In this connection the Government referred also to the
preamble to the 1996 European Convention on the Exercise of
Children's Rights and to Articles 3, 9 paras. 1 and 3, and 21 of the
1989 United Nations Convention on the Rights of the Child. In any
event, so the Government submitted, Article 8 of the Convention
(art. 8) should not be interpreted so as to protect family life to the
detriment of the child's health and development.
above for the taking into care and for maintaining the care decision
concerned in force all suggested that it was necessary to place the
child permanently in a foster home. There was strong scientific
evidence indicating that the placement was more likely to be successful
if the child was adopted by the foster parents.
Reuniting the applicant with her daughter would have required
extensive preparation presupposing good cooperation between all the
parties involved. However, the applicant had shown an extremely
hostile attitude towards the child welfare authorities in Bergen and
had actively obstructed their implementation of the care decision in
respect of her son by attempting to take him with her to Oslo. The
competent authorities had therefore considered that there was a danger
that she might disturb the daughter's development in the foster home
and try to abduct her if given access. In these circumstances, having
regard to their margin of appreciation, the relevant authorities were
entitled to think that it was necessary for the protection of the
child's best interests to deprive the applicant of her parental rights
and access.
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 (see, in particular, the
above-mentioned Olsson (no. 1) judgment, p. 36, para. 81). 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 (see, for instance, the above-mentioned
Olsson (no. 2) judgment, pp. 35-36, para. 90; and the above-mentioned
Hokkanen judgment, p. 20, para. 55). 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. In particular, as
suggested by the Government, the parent cannot be entitled under
Article 8 of the Convention (art. 8) to have such measures taken as
would harm the child's health and development.
In the present case the applicant had been deprived of her
parental rights and access in the context of a permanent placement of
her daughter in a foster home with a view to adoption by the
foster parents (see paragraphs 17 and 22 above). These measures were
particularly far-reaching in that they totally deprived the applicant
of her family life with the child and were 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
(see, mutatis mutandis, the Margareta and Roger Andersson judgment
cited above, p. 31, para. 95).
parental rights and access was justified must be assessed in the light
of the circumstances obtaining at the time when the decisions were
taken and not with the benefit of hindsight. That question must
moreover be considered in the light of the reasons mentioned in
paragraphs 71 to 73 above for taking the daughter into care and for
maintaining the care decision in force.
ensure that the process of establishing bonds with her foster parents
was not disrupted. As already mentioned, the girl, who had been taken
into care shortly after birth and had already spent half a year with
temporary carers before being placed in a long-term foster home, was
at a stage of her development when it was crucial that she live under
secure and emotionally stable conditions. The Court sees no reason to
doubt that the care in the foster home had better prospects of success
if the placement was made with a view to adoption (see paragraphs 17
and 27 above). Furthermore, regard must be had to the fact that the
child welfare authorities found that the applicant was not
"particularly motivated to accept treatment" (see paragraph 17 above)
and even feared that she might take her daughter away; for instance,
she had on one occasion tried to disappear with her son and on another
occasion she had failed to inform the authorities that he had run away
from the children's home to join her (see paragraph 16 above).
relevant to the issue of necessity under paragraph 2 of Article 8
(art. 8-2). It remains to be examined whether they were also
sufficient to justify the Committee's decision of 3 May 1990 to cut off
the contact between the mother and the child (see paragraphs 17
and 22 above).
between the birth of the applicant's daughter on 7 December 1989 and
the Committee's decision of 3 May 1990, the applicant had had access
to her child twice a week in a manner which does not appear to be open
to criticism (see paragraph 16 above).
3 May 1990, the applicant's lifestyle had by then already somewhat
changed for the better (see paragraph 17 above).
It was rather the difficulties experienced in the
implementation of the care decision concerning her son which provided
the reason for the authorities' view that the applicant was unlikely
to cooperate and that there was a risk of her disturbing the daughter's
care if given access to the foster home (see paragraphs 16
and 17 above).
However, it cannot be said that those difficulties and that
risk were of such a nature and degree as to dispense the authorities
altogether from their normal obligation under Article 8 of the
Convention (art. 8) to take measures with a view to reuniting them if
the mother were to become able to provide the daughter with a
satisfactory upbringing.
decision of 3 May 1990, in so far as it deprived the applicant of her
access and parental rights in respect of her daughter, was sufficiently
justified for the purposes of Article 8 para. 2 (art. 8-2), it not
having been shown that the measure corresponded to any overriding
requirement in the child's best interests (see paragraph 78 above).
Therefore the Court reaches the conclusion that the national
authorities overstepped their margin of appreciation, thereby violating
the applicant's rights under Article 8 of the Convention (art. 8).
In this connection it should be noted that less than a year
after 3 May 1990 the City Court found that the applicant's material
conditions had improved to the point where she would have been able to
provide her daughter with a satisfactory upbringing. An important
consideration for the City Court in refusing to terminate care was the
lack of contact between the applicant and her daughter pending the
proceedings, which state of affairs resulted directly from the decision
of 3 May 1990 to deprive the applicant of her access (see
paragraph 27 above).
the Court does not consider that the applicant's allegation that the
length of the care proceedings was excessive (see paragraph 62 above)
gives rise to any issue under Article 8 (art. 8).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
proceedings under Article 6 para. 1 of the Convention (art. 6-1),
which, in so far as relevant, reads:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
Commission, having taken the length of the proceedings into account
under Article 8 (art. 8) (see paragraph 63 above), concluded that no
separate issue arose under Article 6 (art. 6).
deprivation of parental rights and access commenced before the
Committee on 13 December 1989 and ended when the Supreme Court refused
leave to appeal on 19 September 1991 (see paragraphs 12 and 28 above).
They thus lasted altogether one year and nine months.
The Court shares the applicant's and the Commission's opinion
that, in view of what was at stake for the applicant and 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. However, it does not find that they failed to
discharge their obligations in this respect.
In the Court's opinion the issues to be determined by the
relevant administrative and judicial authorities were of a certain
complexity. The proceedings comprised a thorough examination of the
merits of the impugned care measures by the Committee's Chairperson,
the Committee itself, the County Governor and the City Court and then
a summary examination by the Supreme Court which refused leave to
appeal (see paragraphs 12, 17, 24, 27 and 28 above). Thus
three administrative and two judicial levels were involved and there
is nothing to suggest, as was also conceded by the Commission, that any
of these separately failed to act with the diligence required in the
particular circumstances. Nor does it appear, having regard to the
complexity of the case, that the duration of the proceedings as a whole
exceeded a reasonable time.
Convention (art. 6) on account of the length of the proceedings.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
a breach of Article 13 of the Convention (art. 13), which reads:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity."
no issue separate from that under Article 8 (art. 8), was not pursued
by the applicant before the Court, which does not consider it necessary
to examine it of its own motion.
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
the Convention (art. 50), which reads:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
reimbursement of costs and expenses incurred in the proceedings before
the Court. By letter of 17 June 1996, she stated that she waived her
Article 50 (art. 50) claim, the costs and expenses in question having
been reimbursed by way of legal aid from the Norwegian authorities.
FOR THESE REASONS, THE COURT
daughter and the maintenance in force of the relevant care
decision did not give rise to a breach of Article 8 of the
Convention (art. 8);
in so far as it deprived the applicant of her access and
parental rights in respect of her daughter, constituted a
violation of Article 8 (art. 8);
Article 6 para. 1 of the Convention (art. 6-1);
there was a breach of Article 13 of the Convention (art. 13);
for costs and expenses.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 7 August 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the partly
dissenting opinion of Mr Morenilla is annexed to this judgment.
Initialled: R.B.
Initialled: H.P.
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
applicant's daughter and the maintenance in force of the care decision
were "necessary in a democratic society" within the meaning of
paragraph 2 of Article 8 of the Convention (art. 8-2). However, unlike
the majority, I find that the Norwegian administrative and judicial
authorities were entitled to think that it was "necessary" also to
deprive the applicant of her parental rights and access in respect of
the daughter.
as rightly pointed out by the majority (see paragraph 64 of the
judgment), examine whether the reasons adduced by the domestic
authorities were "relevant and sufficient" in the light of the case as
a whole. Moreover, regard should be had to the margin of appreciation
to be accorded to them in this area, which, in addition to those
reasons mentioned in paragraph 64 of the judgment, may be justified by
the changing structure of family life in many member States of the
Council of Europe (see Gomien, Harris and Zwaak, Law and Practice of
the European Convention on Human Rights and the European Social
Charter, Strasbourg 1996, pp. 242, 243).
I share the majority's view that the authorities' discretion
in assessing the necessity of taking a child into care should be a wide
one but, unlike the majority, I see no valid justification for the
Court to exercise a stricter scrutiny of restrictions on parental
rights and access. In my view, in respect of the latter kind of
measure too, the Court should avoid playing the role of a court of
appeal and should limit itself to reviewing whether the applicant's
interests were duly protected in the decision-making process and
whether the justifications adduced by the national authorities could
reasonably be made on the basis of the facts established by them.
decisions depriving the applicant of her parental rights and access
was, as also observed by the majority, beyond reproach.
However, unlike the majority, I consider that the difficulties
which the child welfare authorities experienced with the applicant and
the risk of her disturbing the foster-home environment were such as to
exempt them from their normal duty under Article 8 (art. 8) to take
measures with a view to reuniting her and the daughter. In serious
circumstances such as those which obtained in the instant case, where
the life, health and development of the child were at risk, society
must be able to intervene by taking such measures as are required in
order to protect the best interests of the child, even though it may
have the ultimate effect of disrupting in an irreversible manner the
natural bonds between the mother and the daughter. Such interests were
paramount not only under the relevant domestic law
(see paragraphs 30-40 of the judgment) but also under Article 8 of the
Convention (art. 8) (see, for instance, the Keegan v. Ireland judgment
of 26 May 1994, Series A no. 290, pp. 20-21, para. 55; and the Olsson
v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250,
pp. 35-36, para. 90), which should be interpreted in the light of
Resolution (77) 33 on placement of children adopted by the Committee
of Ministers of the Council of Europe on 3 November 1977.
Although I am aware of the serious consequences of the measures
for the applicant's family life, I consider that in the circumstances
the authorities were, having regard to their margin of appreciation,
entitled to think that it was necessary to deprive the applicant of her
parental rights and access in the context of a permanent placement of
the child in a foster home with a view to adoption. In my opinion, in
reaching the contrary conclusion, the majority has based itself on
reasoning (see paragraphs 82-84 of the judgment) which amounts to a
reassessment of the evidence established by the Committee
(see paragraph 17) and the County Governor (see paragraph 22).
the national authorities, by depriving the applicant of her parental
rights and access, "overstepped their margin of appreciation, thereby
violating the applicant's rights under Article 8 of the Convention
(art. 8)".
