Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 17383/90

Adele Johansen

against

Norway

REPORT OF THE COMMISSION

(adopted on 17 January 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-72). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17-41) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 42-72) . . . . . . . . . . . . . . . . . . . . .18

III. OPINION OF THE COMMISSION

(paras. 73-118) . . . . . . . . . . . . . . . . . . . . . . .23

A. Complaints declared admissible

(para. 73) . . . . . . . . . . . . . . . . . . . . . . .23

B. Points at issue

(para. 74) . . . . . . . . . . . . . . . . . . . . . . .23

C. As regards Article 8 of the Convention

(paras. 75-110). . . . . . . . . . . . . . . . . . . . .23

a. In accordance with the law

(paras. 78-81) . . . . . . . . . . . . . . . . . .24

b. Legitimate aim

(para. 82) . . . . . . . . . . . . . . . . . . . .24

c. Necessary in a democratic society

(paras. 83-110). . . . . . . . . . . . . . . . . .25

aa. The taking into care of S and

the refusal to terminate care

(paras. 88-95). . . . . . . . . . . . . . . .25

CONCLUSION

(para. 96) . . . . . . . . . . . . . . . . . . . . . . .27

bb. Deprivation of parental rights and access

(paras. 97-109) . . . . . . . . . . . . . . .27

CONCLUSION

(para. 110). . . . . . . . . . . . . . . . . . . . . . .30

TABLE OF CONTENTS

Page

D. As regards Article 6 of the Convention

(paras. 111-112) . . . . . . . . . . . . . . . . . . . .30

CONCLUSION

(para. 112). . . . . . . . . . . . . . . . . . . . . . .30

E. As regards Article 13 of the Convention

(para. 113-114). . . . . . . . . . . . . . . . . . . . .30

CONCLUSION

(para. 114). . . . . . . . . . . . . . . . . . . . . . .31

F. Recapitulation

(paras. 115-118) . . . . . . . . . . . . . . . . . . . .31

PARTLY DISSENTING OPINION OF M. H.G. SCHERMERS. . . . . . . . . . .32

PARTLY DISSENTING OPINION OF M. L. LOUCAIDES. . . . . . . . . . . .34

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .35

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .36

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Norwegian citizen, born in 1960. She resides

at Nørreballe, Denmark. In the proceedings before the Commission the

applicant is represented by Mrs. Signe Moland, a lawyer practising in

Oslo.

3. The application is directed against Norway. The respondent

Government were represented by their Acting Agent, Mr. Frode Elgesem

of the Solicitor General's Office.

4. The case concerns the taking into care of the applicant's

daughter, S, and her attempts to be reunited with S. The applicant

considers that in these proceedings her right to respect for her family

life has been violated, that the issues were not determined within a

reasonable time and that she did not have an effective remedy in

Norway. She invokes Articles 6, 8 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 10 October 1990 and registered

on 31 October 1990.

6. On 10 July 1992 the President of the Commission decided not to

apply Rule 36 of the Commission's Rules of Procedure as requested by

the applicant in order to secure an adjournment of the adoption

proceedings in Norway.

7. On 14 October 1992 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

8. The Government's observations were submitted on 26 January 1993.

The applicant's observations in reply were submitted on 17 and

26 March 1993.

9. On 13 October 1993 the Commission declared the application

admissible.

10. The text of the Commission's decision on admissibility was sent

to the parties on 25 October 1993 and they were invited to submit such

further information or observations on the merits as they wished. The

Government and the applicant submitted further evidence and

observations on 21 February and 20 April 1994 respectively.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also

placed itself at the disposal of the parties with a view to securing

a friendly settlement. On 21 March 1994 Mrs. G.H. Thune and a member

of the Commission's Secretariat met with the parties in Oslo for this

purpose. In the light of the parties' subsequent reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present :

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

13. The text of this Report was adopted on 17 January 1995 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is :

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant was born at Laksevåg near Bergen, Norway. She left

the parental home when she was sixteen. In 1977, when she was seventeen

years old, she gave birth to her son, C, and the following years she

and C became dependent on assistance from the social authorities. On

many occasions the social authorities assisted the applicant in the

upbringing of C but nevertheless considerable problems as well as

friction between the social authorities and the applicant arose. The

situation culminated in November 1989 when C, who was then twelve years

old, was taken into care pursuant to section 11 of the Child Welfare

Act (Barnevernsloven) of 1953 as the circumstances of the case

disclosed a danger to his health and development. C subsequently

received treatment at the children's psychiatric department at

Haugeland hospital.

18. At that time the applicant was pregnant and following the

implementation of the above care order she left Bergen for Oslo and was

accommodated in a crisis centre. Due to her pregnancy and her state of

health the applicant was referred to Ullevål hospital in Oslo. The

doctors there considered her physical and mental state of health to be

very poor.

19. On 7 December 1989 the applicant gave birth to her daughter,

S. Due to the applicant's difficult situation and the problems which

had arisen with the upbringing of C, the social authorities

(barnevernet) were contacted. A meeting took place on 8 December 1989

between the applicant and her counsel and the social authorities during

which the applicant's and S's situation was discussed. Following this

the chairman of the Client and Patient Committee of Røa, section 24

(klient- og pasientutvalget i bydel 24, Røa), hereinafter the CPC,

decided on 13 December 1989 as an interim measure to take S into care

pursuant to section 11 of the Child Welfare Act. Because of the

applicant's physical and mental state of health she was considered

incapable of taking care of S, a view which was based on information

from the Ullevål hospital and from the social authorities in Bergen as

well as on the outcome of the meeting held on 8 December 1989. The

applicant did not lodge any appeal against this interim measure.

20. On 19 December 1989 S was placed in the Aline Child Care Centre

pursuant to section 11 of the Child Welfare Act. The applicant was

allowed to visit S twice a week. The applicant did not challenge the

arrangement concerning her access rights at that time.

21. Following the above interim measure the question of care was

brought before the CPC which, on 29 December 1989, appointed an expert

with the mandate of evaluating the applicant's capability of taking

care of S. The expert opinion was submitted on 13 February 1990. It

concluded as follows :

(translation)

"Faced with outside pressure and situations she considers

she cannot handle, (the applicant) reacts, both according

to the documents in the file, the other information and

also according to herself, with depression, fear and

confusion. Compared with how she has been described by

inter alia Ullevål hospital I consider her to be

functioning much better today. I assume that this is due to

the fact that her situation is easier since she has

received considerable human support, inter alia from her

counsel. Her reactions are, however, unstable and very much

dependent on outer circumstances.

Since her youth (the applicant) has periodically used

intoxicating substances. However, this has not developed

into an abuse although she has not been willing to accept

control or treatment. In respect of the problems this case

raises, however, her use of such substances is, as (I) see

it, not of decisive importance.

If (the applicant) were to regain the care of the child

(the children) the answer to the question whether she is in

need of treatment is definitely yes. (Her) destructive acts

vis-à-vis (her son, C) ... are in principle due to her

emotional problems. The problematic aspect in this

connection is the fact that (the applicant) does not

herself see this link and therefore neither wants treatment

herself nor for (C), at least not as suggested by the

authorities ... .

...

... 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 can hardly argue in favour of a positive hope as regards

her future capabilities of taking 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) today expects a future as 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 its life where

the attachment to hopefully 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 consider through her

adolescence as stable and secure parents."

22. Following the submission of the above expert opinion the

applicant requested the appointment of a second expert. This was

refused by the social authorities. Thus the applicant herself engaged

another expert who submitted her opinion on 17 April 1990. It concluded

as follows :

(translation)

"... I cannot find that there are sufficient reasons for

depriving (the applicant) of the care for 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

certain practical assistance in the future. It is to be

recommended 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

cover this. Furthermore, (the applicant) ought to receive

support for her education."

23. In the meantime the social authorities continued their

examination of the case. In their report of 30 March 1990, submitted

to the CPC, they recommended as follows :

(translation)

"Considerations under sections 16 and 18 (of the Child

Welfare Act).

(The applicant) has had problems with intoxicating

substances (hashish, alcohol, abuse of medicine) since the

age of 15-16. Furthermore, she has in periods been very sad

and troubled by depressions and fear. She has received

offers of assistance but never followed this up. It is the

case workers' opinion that (the applicant) shows little

insight into her own behaviour and that, in particular, she

minimises her problems in regard to intoxication and mental

functioning.

(The applicant) has hardly acted as an adult who has taken

upon her to plan her own and her son's life.

We cannot see either that she has acted with responsibility

vis-à-vis her daughter. Her appearances for medical

check-ups and her care for the unborn child during the

pregnancy were insufficient. The social authorities in

Bergen had received information that she ate very little

and that she misused medicine and alcohol.

Since the age of 17 (the applicant) has existed on social

assistance and has not shown that she can function in

working life or in environments outside those of (alcohol

and drug addicts).

(The applicant) remained in a relationship characterised by

ill-treatment, although she realised that her son suffered

therefrom, and rejected most of the offers of assistance

aimed at helping her son. Also in respect of her son's

problems she denies/minimises the problems. It is the

opinion of the social authorities that (the applicant) has

seen her son very little and hardly realises his needs. She

has not been able to give him sufficient care or managed to

protect him.

From our discussions with (the applicant) it is our

impression that (she) is blocked in her view of the public

authorities. She discloses a lack of ability to realise

that her impressions of fear and powerlessness vis-à-vis

the authorities have led to serious consequences for her

son. The fault for her having been unable to create an

acceptable life for herself and her son is placed on either

a tyrannic companion or on the public authorities. This has

resulted inter alia in her showing very little interest in

treatment.

The social authorities consider that the daughter will live

in conditions as described in section 16, subsection a,

since, in particular, the child's mental health will be

subjected to harm or serious danger if she is reunited with

her mother.

As mentioned before preventive measures under section 18

have been tried for years in respect of her son. For such

measures to have a positive effect it requires that the

person in charge of the care discloses certain insight into

his/her own problems as well as a wish to receive

assistance in a process of change.

These conditions are not met in this case.

Accordingly, the social authorities find that preventive

measures pursuant to section 18 of the Child Welfare Act

will not secure the child the necessary care.

Considerations under sections 19 and 20

The social authorities consider it necessary to take over

the care of the child since (the applicant) is considered

as being unable to do so satisfactorily and since

preventive measures are considered to be useless.

...

The social authorities find that the best measure for this

girl is that the social authorities take over the care

pursuant to section 19 of the Child Welfare Act and that

she is placed in an approved foster home with a view to

adoption.

The girl is in good health and has shown good progress

during her stay at the child care centre. In this way it

will be secured that the girl receives the best possible

adolescence with stability and safety provided by the

foster parents with whom she will have all her emotional

contacts.

When the CPC has taken over the care of a child pursuant to

section 19 of the Child Welfare Act it may also decide to

take over the parental rights pursuant to section 20.

(With reference to the expert opinion of 13 February 1990) the

case workers consider the possibility of reaching (the applicant)

with corrections and treatment as being limited. If (the

applicant) were to accept treatment this would have to continue

for several years.

Over the last years science has demonstrated the

disadvantages of remaining a long-term foster child instead

of being adopted ... . The foster parents may at any moment

cancel the agreement or the parents may institute

proceedings in order to be reunited with the child.

Adoption clarifies the matter in respect of a stable and

secure life for child and (adoptive) parents.

...

In order to secure the child's development and its

relationship to permanent care persons it is considered to

be correct in this case that the authorities deprive (the

applicant) completely of her parental rights pursuant to

section 20 of the Child Welfare Act.

Visits/secret address

While the girl has been at the child care centre (the

applicant) has had access twice a week for one hour.

Following a transfer of the girl to an approved foster home

with a view to adoption it is recommended to refuse access

and to keep the address secret.

(The applicant) has previously tried to disappear with her

son in order to avoid the social authorities and neither

did she inform the social office/authorities when her son

left the children's home at Bergen in February 1990 in

order to stay with her. Therefore, it is considered likely

that she will intervene inappropriately in the foster home,

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 authorities will accordingly recommend that (the

applicant) is refused contact with the child and to place

the child under a secret address.

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."

24. On 2 May 1990 the CPC examined the case. The meeting was chaired

by a judge from the Oslo City Court. The applicant was assisted by

counsel and called three witnesses. The social authorities, which had

submitted their report of 30 March 1990 to the CPC, called one witness.

The appointed expert was heard, but not the expert engaged by the

applicant herself. Both expert opinions were available to the CPC.

25. On the basis of the information and evidence submitted the CPC

decided, on 3 May 1990, by four votes to two, to take S into care, to

deprive the applicant of her parental rights, to place S in a foster

home with a view to adoption, to refuse access as from the moment S was

placed in the foster home and to keep the address secret. In its

decision the CPC stated :

(translation)

"With reference to the reports which have been submitted

and the submissions made during this meeting the majority

... finds that (the applicant) has very little chance of

acting satisfactorily in taking care of her daughter. The

majority stresses that (the applicant) has been the sole

custody holder for her son, born in 1977. This task she has

not managed and the social authorities have taken this

child into care. Since 1977 (the applicant) has received

special assistance and, since her son was ten years old,

she has lived off social security benefits. She has only

worked for short periods of time. She has not lived

together with the fathers of her two children but has lived

for several years with another man who ill-treated her and

her son, both physically and mentally. He is now in prison,

serving a sentence for narcotics offences. She has herself

used narcotics and alcohol and this has created problems

for her. It is unclear how big a problem this has been, but

the CPC assumes that she has no problems for the time

being. It is not quite clear, however, whether the problem

has been solved also for the future.

(The applicant) maintains now that she has broken off with

her former friend and her previous life. She has moved to

Oslo and now appears to have another basis than the one in

Bergen. She has certain social contacts but these are

contacts stemming from the present situation which cannot

be of decisive importance. She has vague plans for the

future although she expresses a wish to get an education.

However, the majority is of the opinion that the decisive

aspects in this case must be that, according to the

appointed expert, (the applicant) has big and unsolved

mental problems which burden her social function and her

ability to take care (of children). Despite the fact that

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, subsection 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 without effect. 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

for treatment and there is little reason to believe that

this will change. 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 period to come is

the basic years for the child where it is preferable that

the child may rest assured that it will not be moved. It is

of decisive importance for the girl that she can now be

attached to stable persons whom she may consider as being

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

terminable foster home contract. She also ought to have few

and close persons to relate to 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."

26. The minority of the CPC found that the applicant's situation in

life had improved following her move from Bergen to Oslo. Therefore it

considered that the applicant should be given the opportunity to try

to be in charge of the care of her daughter while staying at a special

institution for that purpose.

27. As indicated above (para. 17) the applicant's son, C, was taken

into care in November 1989. On 4 May 1990 he ran away from the

institution where he was living in Bergen and moved to the applicant

in Oslo. Following the birth of her daughter the applicant had moved

to an apartment in Oslo. As C did not want to return to Bergen and as

the applicant found that the social authorities there did not do enough

to help him, she decided to let C stay in Oslo. The applicant managed

to get him admitted to a school there and she contacted a psychiatrist

for support. Following an evaluation of these circumstances the social

authorities in Bergen decided not to intervene and the care order was

lifted on 19 June 1990. This decision was subsequently confirmed by the

Hordaland County Governor (Fylkesmannen) on 13 March 1991. C has lived

with the applicant since May 1990.

28. On 25 May 1990 counsel for the applicant received the minutes

from the meeting of 2 May 1990 following which the CPC decided, on

3 May 1990, inter alia to take the applicant's daughter, S, into care

and to deprive the applicant of her parental rights over S. On

28 May 1990 the applicant lodged an appeal with the County Governor for

Oslo and Akershus in so far these decisions were concerned. She

furthermore requested the County Governor to give the appeal suspensive

effect as far as the access rights were concerned as access to S would

otherwise be terminated as soon as S was placed in a foster home. The

applicant submitted that continuing access was of decisive importance

in order to maintain contact between mother and child during the appeal

proceedings. The applicant also sent a copy of her complaints to the

CPC which decided, on 28 June 1990, to uphold the decisions taken on

3 May 1990 and to forward the case to the County Governor.

29. On 31 July 1990 the County Governor decided not to give the

appeal suspensive effect. In the decision he stated inter alia :

(translation)

"In accordance with section 42 of the Public Administration

Act (Forvaltningsloven) the County Governor may decide that

the implementation of a decision shall be suspended pending

the outcome of the appeal. The starting point in the Child

Welfare Act is that a decision is implemented immediately.

When examining whether suspensive effect shall be granted the

child's interests and the risk it runs in such circumstances

shall be taken into consideration.

The County Governor finds on the basis of the documents in

the file ... that the girl's interests are best taken care

of in that the decision of 3 May 1990 concerning

termination of access between mother and child is

implemented as from the moment the child is placed in the

foster home.

With reference to section 42 of the Public Administration

Act the County Governor decides that the decision on access

of 3 May 1990 is maintained pending the outcome of the

appeal to the effect that the access between mother and

child is terminated when the child is transferred to the

foster home. The request for giving the appeal suspensive

effect is accordingly rejected."

30. The applicant's daughter, S, was placed with foster parents on

30 May 1990. The applicant has not had access to or seen her daughter

since.

31. Despite the above decision the applicant pursued her appeal. As

she was informed that her appeal to the County Governor of 28 May 1990

would be pending four to five months she instituted proceedings in the

Oslo City Court (byretten) requesting the Court to repeal the CPC's

decisions of 3 May 1990. She maintained inter alia that it was decisive

that the case was examined quickly as she had no access to her

daughter. On 24 October 1990 the City Court dismissed (avvise) the case

as such cases could only be instituted subsequent to a decision in the

matter by the County Governor. On 17 January 1991 the High Court

(Lagmannsretten) rejected the appeal since the County Governor had in

the meantime decided the case (see para. 32 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.

32. The County Governor for Oslo and Akershus determined the case on

9 November 1990, following a meeting with the applicant and her counsel

on 5 November 1990. The CPC's decisions concerning care and parental

rights were upheld. In the decision the County Governor stated inter

alia :

(translation)

"The County Governor considers on the basis of (what he has

established) and the case-file that (the applicant's)

situation in life, her unstable mental situation and her

lack of capacity to evaluate both her own and her son's

situation might damage (her daughter's) development and

physical/mental health if she would have stayed in her

mother's care. The requirements of section 16 of the Child

Welfare Act would accordingly appear to be fulfilled.

As regards preventive measures pursuant to section 18 of

the Child Welfare Act, the considerable number of offers

from the Bergen social authorities show that (the

applicant) has managed only to a limited extent to

cooperate/use the offers she has received. From the talks

with the County Governor, the report from the Aline Child

Care Centre and the expert's evaluations it appears that

(the applicant) has very little knowledge of and

understanding for her own and her son's need for help. The

County Governor considers that (the applicant) will not be

able to cooperate with the authorities on their conditions

as far as preventive measures to the benefit of the child

are concerned. Preventive measures would in our opinion,

and with reference to the above, be without effect in this

case, cf. section 18 of the Child Welfare Act.

...

Following the conversation with the applicant the County

Governor considers (the applicant) to be a very sympathetic

and well-intentioned person. She has an appealing behaviour

and manners which lead to the wish of wanting to return

friendliness with friendliness. However, we must state that

we consider that (the applicant) lacks the necessary

understanding as regards whether problems could appear upon

a possible return (of S). (The applicant) did not show any

understanding at all as regards the child's feelings and

was unable to separate her own and the child's needs. In

respect of the problems vis-à-vis her son and the planned

marriage (the applicant) did not manage to see that various

adjustment difficulties would occur. (The applicant)

considered her son not to be in need of treatment despite

the fact that psychologist (LV) has applied for his

admission to Nic. Waal's Institute for a possible

evaluation/treatment.

Having regard to the above the County Governor finds that

the decision of (3) May 1990 to take (the applicant's

daughter) into care is in accordance with section 19 of the

Child Welfare Act, and correct.

...

As regards the deprivation of parental rights the County

Governor would state as follows :

Section 20 of the Child Welfare Act permits a deprivation

of the parental rights. From the Supreme Court judgment

(Rt. 1982 p. 1687) it appears that no specific requirements

prevent the use of section 20 except that care must have

been ordered pursuant to section 19. The child's interests

from a general point of view must be the decisive factor.

This means that it is not a requirement that for example

the parents have unlawfully disturbed the care situation or

that the contact between the child and its parents must be

considered to be harmful. If a general evaluation shows

that it is in the best interests of the child to take away

the parental rights in order to prepare for an adoption,

section 20 of the Child Welfare Act permits this.

(The applicant's) prolonged mental problems weigh in favour

of applying section 20. In continuing reports she is

described as unstable, depressive. During her stay at

Ullevål hospital concern was expressed that she could hurt

herself or develop a psychosis. (The applicant) has

previously considered suicide. (The applicant) is according

to the expert in need of treatment. The expert opinion

stresses (the applicant's) lack of knowledge of her own and

her son's problems; her ability to take care of her

children has been put in question. Having regard to her

lack of insight her accessibility to treatment is

considered poor. Having regard to the above the County

Governor hardly finds it realistic to expect results of

importance in a foreseeable future. Since the stay at the

Aline Child Care Centre the girl has been in a process of

development which is adequate and good. She has already

attached herself to her foster parents and feels at ease

there. A separation from the foster parents would lead to

emotional problems for the girl and it is to be expected

that the good and normal development which she has today

could be considerably disturbed. According to the County

Governor's assessment the girl has all possibilities for an

adequate normal development with a good mental progress on

the condition that she is allowed to remain with the foster

parents.

The County Governor finds that the best situation for the

girl would be that she remains with the foster parents with

a view to adoption, cf. section 17, second sentence."

33. On 13 November 1990 the applicant instituted proceedings in the

Oslo City Court under Chapter 33 of the Code of Civil Procedure

(tvistemålsloven). She maintained that the care order should be lifted

and her daughter be reunited with her. In the alternative she

maintained that her parental rights should be restored.

34. On 20 December 1990 the defendant State represented by the Child

and Family Department (Staten v/Barne- og familiedepartementet)

submitted observations in reply.

35. In consultation with the parties the City Court appointed, on

1 February 1991, two experts who were asked to evaluate the applicant's

ability to take care of her daughter and the consequences of revoking

the care order and/or restoring the applicant's parental rights. The

experts were requested to submit their opinions by 15 March 1991, which

they did.

36. On 8 February 1991 the parties were informed that the hearing of

the case would commence on 2 April 1991.

37. The Oslo City Court examined the case from 2 to 5 April 1991. The

applicant, represented by counsel, was heard as well as a

representative of the defendant Child and Family Department.

Furthermore eleven witnesses and the two appointed experts were heard.

38. On the basis of the evidence so obtained the City Court upheld

the care order as well as the decision to deprive the applicant of her

parental rights. In its judgment of 16 April 1991 the Court stated :

(translation)

"The starting point according to the Child Welfare Act is, from

a legal point of view, that a child shall be with its natural

parents. The interests of the child may, however, lead to a

deviation from this main rule since it cannot be interpreted so

as to permit the child being subjected to considerable harm.

When examining a measure under the Child Welfare Act the

starting point is that the courts must rely on the

circumstances as they are when passing judgment. The

possibly negative aspects for the child in respect of a

return from the foster parents to the natural parents must

be taken into consideration. Another basis must be that the

child care committee and the County Governor may legally

maintain a decision to take the child into care even if the

circumstances which were the basis for the decision later

have changed to such an extent that the requirements for

measures pursuant to the Child Welfare Act are no longer

fulfilled.

After an evaluation of the evidence the Court finds that

such general circumstances are at hand 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

social authorities took over the care of the daughter. She

now appears to be well established in Oslo together with

the father of her oldest child who also lives with her. It

appears quite clear that the applicant is much concerned

with 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 she is able, in order to take care of the

child in the best possible way if it is returned to her.

When the factual circumstances are such the Court must

evaluate whether there is a real danger that the child will

be subjected to harm if it is returned from the foster

parents to her natural mother.

We have in this case a situation where the care was taken

away from the mother shortly after birth. The mother has

had very little contact with the child since and in respect

of the child the natural mother is now a stranger.

The experts appointed by the Court are both in agreement

that the child will be in a crisis in case of a possible

return. Psychologist S states about this in the expert

opinion:

'She is today in the middle of an identity phase

which is dependent on secure conditions and

stable emotional continuity in order for her to

develop without complications. On a short term

basis it is clear that the child will react with

sorrow and emotion if she should now be removed

from her foster home. In the long run it is

likely that if she is moved during this period

of her development she will carry with her into

her life an experience of insecurity towards

other persons, including those who represent

close and dear relations.'

The experts stress that a return in these circumstances

entails a particular risk. This is so because the child

already twice in her short life has experienced a removal

from her natural mother, just 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 is therefore

particularly sensitive to new changes.

The child now lives under secure and stimulating conditions

with her foster family and as the situation appeared 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, the Court considers that there is a

real danger that the mother will not be able to handle a

return situation with a child in a crisis in an adequate

and relevant way. The mother's history and previous contact

with the public support apparatus indicate that when, in

such a pressed and threatening situation, she will need

help from the public authorities, she will defend herself

with fear and aggressiveness. In particular psychologist R

refers to this. During his oral explanations in court he

has referred to his written expert 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 protective identification. This means that

her world is separated in two, in friends and enemies and

that she shows towards those whom she recognises as friends

a secure and nice side of herself whereas she reacts

towards those whom she considers to be against her with

deep suspicion, fear and aggression. Psychologist R is of

the opinion that the mother in such a situation will

consider the public health authorities to be against her

and will meet them with a corresponding negative attitude.

This will place further burdens on the child and harm her

permanently in the form of a split character.

The expert witnesses whom the mother has presented have all

had a very good impression of her. This goes for doctor T,

psychologist L, and psychologist RL. 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 social authorities and the

Court, psychologist KR, psychologist S and psychologist R,

all experience the mother as more complex. The Court

considers that the appointed experts, on the basis of their

mandate and the contact with the applicant and others, have

had the best background to evaluate her as a person. The

Court has therefore considerable hesitations about

deviating from the expert evaluation they have submitted.

The Court has examined the experts' evaluation in the light

of the other submissions in the case and not least in the

light of the basic principles of the Act as to when a

lifting of the care order should take place.

The Court finds that the experts have done a very thorough work.

The conclusions are clear and appear well founded. Their

statements confirm and elaborate the overall impression that the

Court has of the case. The Court finds, therefore, that after

considering the case as a whole it will rely on the experts'

views as a basis for its decision. In the opinion of the Court

nothing in the case supports a deviation from the experts'

evaluation.

On the basis of the above the Court finds that the child,

because of the reactions which she may be expected to

develop if her environment is changed, would place a

particular heavy burden on the mother as regards her care.

From what is known about her mother today and her history

it is unlikely that she will be able to cooperate with the

social assistance provided by society without friction. A

general and concrete evaluation has accordingly made the

Court conclude that the County Governor's, and thus also

the social authorities', decision to take the child into

care should be maintained.

The next question is whether the decision should be limited

only to covering the taking into care and not the parental

rights as well pursuant to the Child Welfare Act, section

20. 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 according to

the available information the Court assumes that an

adoption will be the result unless the decision is limited

only to concern the taking into care.

The Court finds that in order to be able to use the Child

Welfare Act, section 20, it must in all circumstances be

required that this is necessary in order to secure a proper

care situation for the child. What is required will depend

on the aim of depriving the parents of the responsibility,

and the situation in general. If the aim is to free the

child for adoption very weighty considerations must be

required. Only in very special circumstances can the Child

Welfare Act, section 20, be used in order to proceed with

an adoption. It must be a condition that the parents will

be unable to give the child the appropriate care and that

this would be a permanent situation. When the parental

rights are taken over with a view to adoption the question

arises whether the child and the natural parents should be

prevented definitively from contact with each other with

the consequences as regards reunification which follow from

this.

One of the requirements which in the opinion of the Court

must be fulfilled for the parental rights to be transferred

with a view to adoption is that it is obvious that the

child within a foreseeable future cannot be reunited with

the parents. In the present case both the appointed experts

have recommended to the Court that the placement in the

foster home be made permanent. One of the appointed

experts, psychologist R, states in this respect:

`When considering this question in the present

case we have, in addition to the permanent

general advantage for the child of adoption in

such cases, concrete and real reasons which

speak in favour of adoption.

The applicant's problems are in my view old and

in addition well established in her total

character. They can be documented back to 1977

and have been almost constantly present during

the whole of her adult life. It follows from

this that it is unlikely that she will solve

them in a foreseeable future and that the

situation therefore has a certain permanent

character.

In addition there is every probability that the

applicant's access to the foster home will

destroy the home's secureness and make it unfit

for being 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 said openly that her aim is to get her

daughter back. When earlier on, as well, she has

hidden her son from the child care authorities

in Bergen and has been supported in this by her

lawyers in Oslo this will on the whole give 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 is

granted to adopt her so that they also get the

parental rights.

With reference to my mandate my conclusion will

accordingly be:

A. If the child is reunited with her natural

mother there is a considerable danger that the

child will not recover from her separation

crisis which then will harm her permanently.

There is also an objective reason to doubt the

mother's capability of securing for the daughter

the necessary medical and psychological

assistance which the child will need. For these

reasons I cannot recommend to the Court to

reunite the child with her natural mother.

B. I assume that the aim of letting the

natural mother keep the parental rights over a

child placed in a foster home is to let her get

access to the home and participate in, or take,

important decisions regarding the child. In such

circumstances access to the foster home or even

lifting of the secrecy of the home's address

would destroy the secureness of the foster

parents and make the home unfit as a foster

home. This would both in the short and in the

long run be detrimental to the child.

C. In my view the best solution from the

child's point of view is that the mother is

deprived of her parental rights and that the

foster family receives permission to adopt the

child. This will secure to the child a stable

and appropriate upbringing and will bind without

reservation the child to its new family.'

The other expert, psychologist S, states as follows in this

respect:

`If the child remains in the foster home and the

foster parents continue as foster parents for

the child I consider it impractical and probably

complicating if a person other than the foster

parents should have the parental rights. I

consider this also from the point of view that

a full formal and daily belonging to one place

would be in the best interest of the child. In

addition one cannot disregard that a split

solution concerning care and custody 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 way if the custody is with someone

else. If the Court nevertheless should decide to

split the daily care and the custody this

requires a good cooperation between the parties,

something which at present cannot be considered

to exist 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 rights be awarded to those who

have the daily care for the child.'

In their oral submissions to the Court both the experts

have expressed that their standpoints have received further

support in the submissions made during the examination of

the case.

As regards the question whether the mother would not be

able to give the child a proper care on a permanent basis

psychologist R states that the mother today and in the

foreseeable future will not have the necessary capacity to

do so. Psychologist KR was of the same opinion when he

submitted his report in connection with this case.

Psychologist S on the other hand is of the opinion that the

mother probably today, in favourable and clear

circumstances, is capable of taking care of the child but

the mother's situation is not clear. She suggests therefore

that it would be in the interest of the child to stay where

it is. The Court has understood the experts so that it is

obvious that the mother cannot give the child a proper care

on a permanent basis. Also as regards the question of

custody the Court intends to rely decisively on the

evaluation made by the experts. The Court furthermore

agrees with the experts that there is a real danger for a

conflict between the foster parents and the natural mother

if she receives access to the foster home. The Court refers

in this connection to what has been said about the mother's

ways of reacting. It follows that strong and real reasons

speak in favour of an adoption. The special views which

could speak against an adoption in the present case cannot

in the opinion of the Court carry decisive weight. The

Court will here point out that the natural mother is a

stranger vis-à-vis the child since she has not, as far as

the Court has been informed, had any particular contact

with the mother. After a general and concrete evaluation

the Court has accordingly reached the conclusion that the

decision concerning the transfer of parental rights shall

also be maintained."

39. On 28 May 1991 the applicant lodged an appeal with the Supreme

Court. The defendant State filed a reply on 19 June 1991. On

23 August 1991 the applicant was requested to submit further

observations by 6 September 1991. Further observations were submitted

on 5 September 1991.

40. On 19 September 1991 the Supreme Court Appeals Committee

(Høyesteretts Kjæremålsutvalg) refused leave to appeal.

41. In the spring of 1991 the applicant moved to Nørreballe, 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 been taken yet.

B. Relevant domestic law

a. The Child Welfare Act of 1953

42. The legal basis relevant to the present case for protective

measures in relation to children under the age of eighteen was set out

in the previous Child Welfare Act of 17 July 1953. A new Child Welfare

Act of 11 June 1992 entered into force on 1 January 1993.

43. The principle underlying the previous Act of 1953 which was

applicable in this case was that, generally speaking, it would be in

the best interest of a child that it be cared for by its natural

parents. Furthermore, where a child was taken into care, the best

solution would be, generally speaking, that the natural parents

remained in contact with it and retained the parental rights.

44. According to section 16, subsection a, of the 1953 Act protective

measures could be adopted if a child lived under such conditions that

its physical and mental health was liable to be impaired or was

seriously endangered. It follows from established case-law that such

a measure could also be taken where the child's health had not yet been

endangered, but where there was a clear risk of such harm.

Consequently, a child could, with reference to this provision, be taken

into care immediately after birth (e.g. Supreme Court case-law Rt. 1986

p. 1189 and Rt. 1987 p. 52).

45. Section 18 of the Act provided for several preventive measures

(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.

46. If such preventive measures were considered to be without effect

or had proved to be of no avail, section 11 of the Act authorised the

Health and Social Board (helse- og sosialstyret), hereinafter "the

Board", or if necessary its chairman, to take a child into care on a

temporary basis. Where such an interim measure was taken, the case was

brought before the Board, often represented by its Client and Patient

Committee (the CPC), which could decide to take the child into care

(overta omsorgen) pursuant to section 19 of the Act provided the

requirements of section 16 were fulfilled. In practice the child was

usually transferred to a suitable children's care centre or a foster

family.

47. The Child Welfare Act of 1953 did not regulate the question of

access if a child was taken into care but according to the undisputed

authoritative interpretation of section 19 of the Act the Board, or the

CPC, 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.

48. Where the Board, or the CPC, decided to take the child into care

in accordance with the above rules it could also decide, pursuant to

section 20 of the Act, to deprive the natural parents of their parental

rights. Section 20 did not set out in what circumstances this could

happen, but according to Supreme Court case-law it was emphasised that

there should be weighty reasons for such a decision. A decision to

deprive the natural parents of their parental rights could not be taken

unless the long-term consequences of alternative arrangements were

considered in each case (e.g. Supreme Court case-law Rt. 1990 p. 1274

and Rt. 1991 p. 557). A decision under section 20 was 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

and other family.

49. Measures under the Child Welfare Act of 1953 were to be lifted

when the child was twenty-one years of age or when there were no longer

any reasons to maintain the measures, cf. section 48. In case the

natural parents pursued the avenues of appeal against the measures

taken under the Act as described below, they were not entitled to a

review of the case until one year after the prior decisions had become

final, cf. section 54 of the Act. However, if the child was adopted in

the meantime the Act was no longer applicable since, as mentioned

above, the break between the child and its natural parents was thereby

final.

50. Decisions taken by the Health and Social Board, or the CPC,

pursuant to the Child Welfare Act of 1953 could be appealed against to

the County Governor and everyone who was affected by a decision of the

Health and Social Board, or the CPC, as well as any member thereof, had

the right to lodge the appeal, cf. sections 52 and 54 of the Act. Such

an administrative complaint could accordingly be lodged inter alia in

relation to a decision to take a child into care, to deprive the

parents of their parental rights and on questions concerning access

rights.

51. According to section 55 the County Governor had full competence

to review the decision and could accordingly review not only the facts

of the case and the application of the law, but also the discretionary

aspects of the decision. The proceedings before the County Governor

were mainly in writing, even though there could often be informal

meetings with the parties and their lawyers.

52. The County Governor's decisions relating to access rights could

be reviewed by the Ministry for Child and Family Affairs which could

review all aspects of the decisions, including discretionary questions,

cf. section 53, subsection 2, and section 55 of the Act. These

administrative decisions were subject to judicial review under Chapter

30 of the Code of Civil Procedure, i.e. the court's competence of

review followed from the general principles of judicial supremacy which

means that they could review the facts and the application of the law

and, to a certain extent, the discretionary aspect of a decision.

53. The County Governor's decisions relating to care orders and

parental rights were subject to a special judicial review under

Chapter 33 of the Code of Civil Procedure, cf. section 53 of the Child

Welfare Act of 1953.

54. Chapter 33 of the Code of Civil Procedure did not limit the

courts' competence to review the decisions taken by the County

Governor. The judicial review under this Chapter 33, which remains in

force and also applies in other circumstances, encompasses the facts

of the case, the application of the law and aspects of a discretionary

nature, cf. section 482 of the Code. The decision will be taken on the

basis of the situation which exists at the time when judgment is

pronounced. According to section 485 an appeal against a judgment

delivered by the City or District Court shall be lodged directly with

the Supreme Court. The underlying reason is the need to give priority

to the kind of cases to which Chapter 33 of the Code applies.

Furthermore, section 478 of the Code provides that the proceedings in

the case shall be expedited.

55. According to section 477 the courts may grant interlocutory

measures, i.e. decide that the implementation of the decision shall be

suspended.

56. According to section 479, subsection 2, the proceedings are in

camera.

57. As far as the Child Welfare Act of 1953 was concerned, the review

under Chapter 33 only applied to decisions made by the County Governor.

Consequently, this kind of judicial review in principle presupposed a

complaint to the County Governor and that he/she had taken a decision.

b. The Child Welfare Act of 1992

58. The applicant's case was considered under the rules of the Child

Welfare Act of 1953, cf. paras. 42-57 above. However, this Act has been

replaced by the new Act of 11 June 1992. The new Act came into force

on 1 January 1993. Among other reforms the new Act introduces a new

adjudicating body in the child welfare administration, the County

Social Welfare Board, hereinafter the CSWB. The major reason for this

change was to reinforce the legal protection of the parents and the

child.

59. Chapter 4 of the new Act contains the regulations of the measures

available to the child welfare services. According to Section 4-1

"crucial importance shall be attached to framing measures which are in

the child's best interest" when the provisions are applied. This also

followed from the 1953 Act.

60. The conditions under which the CSWB may take a child into care

follow from inter alia section 4-12, and section 4-21 governs the duty

to revoke a care order. The conditions are equal to the corresponding

regulation of the 1953 Act, although the new Act contains more detailed

provisions than the 1953 Act. Former Supreme Court case-law is still

applicable.

61. According to section 4-20 the CSWB may also, when a care order

has been made, deprive the parents of their parental responsibility

and, if additional conditions are fulfilled, give its consent to the

adoption of a child contrary to the parent's wish. Also in this respect

former Supreme Court case-law is applicable.

62. The new Act contains more detailed provisions for the CSWB's

consent for a child to be adopted contrary to the parent's wish, cf.

section 4-20 subsections two and three. The CSWB may only give its

consent if the parents permanently will be unable to provide the child

with reasonable care, or if removing the child may lead to serious

problems for him or her because of the attachment to persons and

environment where he or she is living. Thus the key provision is that

the care order will not be lifted, cf. section 4-21. In addition to

this, 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.

63. The question of giving consent to the adoption of a child who has

been taken into care is a separate issue under the new Act. Only the

CSWB has the power to give consent for a child to be adopted if the

parents object.

64. Section 4-19, subsection one, of the new Act establishes both the

child's and the parent's right to enjoy each other's company unless the

CSWB in the interest of the child decides otherwise. The Act of 1953

contained no such clearly worded right. The preparatory works of the

new Act emphasise the importance of contact between the child and its

parents.

65. The new adjudicating body in the child welfare administration,

the CSWB, was established according to the Social Services Act

(socialtjenesteloven) of 13 December 1991. However, its main workload

is related to child welfare cases.

66. The CSWB is an independent adjudicating body and its rules of

procedure shall comply with the basic principles of fair trial. The

preparatory works explicitly emphasise the importance of a speedy

examination of the cases.

67. According to section 7-1 point g the hearing should be held at

the earliest opportunity and, if possible, within four weeks after the

CSWB receives the case. The decision shall be pronounced as soon as

possible after the hearing, cf. section 9-9, subsection one, of the

Social Services Act.

68. The jurisdiction of the CSWB includes cases concerning inter alia

care orders, deprival of parental rights and access rights,

cf. section 7-2 point e of the Child Welfare Act of 1992.

69. The orders of the CSWB may be brought before the ordinary courts

of law according to the special provisions of Chapter 33 of the Code

of Civil Procedure, cf. section 9-10 of the Social Services Act.

70. The system of review by the courts of law of orders relating to

child welfare services is amended on two major points.

71. Firstly, an appeal against an order by the CSWB goes directly to

the City Court, whereas, according to the authoritative interpretation

of the Act of 1953, the courts of law could only deal with decisions

of the former second administrative authority, i.e. the County

Governor.

72. Secondly, the courts of law may now conduct a review according

to Chapter 33 of the Code of Civil Procedure in all the cases listed

in section 7-1 of the new Child Welfare Act, including orders by the

CSWB relating to access rights. The Act of 1953 confined the review

according to Chapter 33 to inter alia care orders and the deprivation

of parental rights, omitting orders relating to access rights.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

73. The Commission has declared admissible the applicant's complaints

that her daughter, S, was taken into care, that she was deprived of

parental rights and of access to S, that the disputes concerning care

and parental rights were not determined within a reasonable time and

that the remedy available was not effective.

B. Points at issue

74. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 8 (Art. 8) of

the Convention, as regards the taking into care of S and

the maintaining of the care order;

- whether there has been a violation of Article 8 (Art. 8) of

the Convention as regards the decision to deprive the

applicant of her parental rights and of access to S;

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention, in that the dispute

concerning care and parental rights was not determined

within a reasonable time; and

- whether there has been a violation of Article 13 (Art. 13)

of the Convention.

C. As regards Article 8 (Art. 8) of the Convention

75. The applicant alleges that the care orders and the deprivation

of the parental rights and access have given rise to violations of

Article 8 (Art. 8) of the Convention which in so far as relevant reads

as follows:

"1. Everyone has the right to respect for his ... family

life ..."

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society ... for the protection of health or morals, or for

the protection of the rights and freedoms of others."

76. As a point of departure the Commission recalls that the mutual

enjoyment by parent and child of each other's company constitutes a

fundamental element of family life, and the natural family relationship

is not terminated by reason of the fact that the child is taken into

public care (cf. for example Eur. Court H.R., Margareta and

Roger Andersson judgment of 25 February 1992, Series A no. 226, p. 25,

para. 72 with further references). It follows, and this is not in

dispute, that the measures at issue amounted to interferences with the

applicant's right to respect for her family life.

77. These interferences constitute a violation of Article 8 (Art. 8)

unless they were "in accordance with the law", had an aim that is

legitimate under Article 8 para. 2 (Art. 8-2) and were "necessary in

a democratic society" for the aforesaid aim (ibid. para. 73).

a. In accordance with the law

78. The Commission recalls that the expression "in accordance with

the law", within the meaning of Article 8 para. 2 (Art. 8-2), requires

firstly that the impugned measures should have a basis in domestic law.

It also refers to the quality of the law in question, requiring that

it be accessible to the persons concerned and formulated with

sufficient precision to enable them - if need be, with appropriate

advice - to foresee, to a degree that is reasonable in the

circumstances, the consequences which a given action may entail. A law

which confers a discretion is not in itself inconsistent with this

requirement, provided that the scope of the discretion and the manner

of its exercise are indicated with sufficient clarity, having regard

to the legitimate aim in question, to give the individual adequate

protection against arbitrary interference (ibid. para. 75).

79. In the present case the applicant does not deny that the

authorities acted in accordance with Norwegian law, but she maintains

that the applicable legislation, which is no longer in force, was

drafted in terms so vague that its results were unforeseeable.

80. The Commission recalls that the domestic legislation which was

applied in the present case, i.e. the Child Welfare Act of 1953,

provided the legal basis upon which the measures adopted in the present

case could be implemented. Section 16 of the Act provided that

interventions were allowed if, inter alia, a child's physical or mental

health was in danger; section 18 provided for several preventive

measures and section 19 allowed for taking the child into care if such

measures had failed or if they would be of no avail. Finally, section

20 regulated the question of parental rights.

81. It is true that the legislation in question was rather general

in terms and conferred a wide measure of discretion, especially as

regards the implementation of care decisions. However, the

circumstances in which it may be necessary to take a child into care

and in which a care decision may fall to be implemented are so diverse

that it would hardly be possible to formulate a law to cover any

eventuality. Furthermore, in this case safeguards against arbitrary

interferences were provided by the fact that the exercise of nearly all

the statutory powers were subject to review by the courts at several

levels. Taking this into consideration the Commission finds that the

measures taken in the present case were in accordance with the law

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention

(cf. also Eur. Court H.R., Olsson judgment of 24 March 1988, Series A

no. 130, pp. 30-31, paras. 60-63).

b. Legitimate aim

82. In the Commission's view the relevant Norwegian legislation which

was applied in this case was clearly designed to protect children and

there is nothing to suggest that it was applied for any other purpose.

The interferences in question, which were intended to safeguard the

development of the applicant's daughter, S, therefore had, for the

purposes of paragraph 2 of Article 8 (Art. 8-2), the legitimate aim of

protecting the "rights and freedoms of others".

c. Necessary in a democratic society

83. According to the established case-law of the Commission and the

Court, the notion of necessity implies that the interference

corresponds to a pressing social need and, in particular, that it is

proportional to the legitimate aim pursued. In determining whether an

interference is "necessary in a democratic society", the Commission

will also take into account that a margin of appreciation is left to

the Contracting States, but its review is not limited to ascertaining

whether a respondent State exercised its discretion reasonably,

carefully and in good faith. Furthermore, in exercising its supervisory

function, the Commission cannot confine itself to considering the

impugned decisions in isolation, but must look at them in the light of

the case as a whole. It must determine whether the reasons adduced to

justify the interferences at issue were "relevant and sufficient"

(cf. the above-mentioned Olsson judgment, pp. 31-32, paras. 67-68).

84. When applying the above criteria to the facts of the present case

the Commission recalls that the issues involved related to the care

orders and the decisions concerning parental rights and access. The

Commission finds that these are matters which should be examined

separately as the factors and considerations which are relevant to the

assessment of their necessity may not be the same.

85. Before turning to the substance of the issues the Commission

recalls that certain procedural requirements are implicit in Article 8

(Art. 8) to the extent that in child care matters the parents must have

been involved in the decision-making process, seen as a whole, to a

degree sufficient to provide them with the requisite protection of

their interests (cf. for example Eur. Court H.R., W. v. the United

Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para. 64).

86. In the present case the applicant maintains that there was no

equality of arms between her and the social authorities, in particular

since her request for the appointment of a second expert in the

administrative proceedings was refused and since the social

authorities, during the examination of the case by the CPC, were

represented by several persons whereas the applicant had only one

representative.

87. However, the Commission recalls that throughout the

administrative and judicial proceedings the applicant was represented

by counsel and she personally participated as a party in the

proceedings before the CPC, the County Governor and in the City Court

where she had the possibility of presenting the views which in her

opinion would be of importance for the outcome of the case. In these

circumstances the Commission agrees with the Government that the

procedural requirements implied in Article 8 (Art. 8), as regards the

applicant's involvement in the proceedings, were satisfied as the

applicant was involved in the decision-making process to a degree

sufficient to provide her with the requisite protection of her

interests (cf. also the above-mentioned Olsson judgment, p. 33,

para. 71).

aa. The taking into care of S and the refusal to terminate care

88. The Commission recalls that the applicant's daughter, S, was born

on 7 December 1989 and that she was taken into care, as an interim

measure under section 11 of the Child Welfare Act of 1953, on

13 December 1989. The applicant maintains that there was no reason for

such a measure which, furthermore, was in violation of the basic

requirements under Norwegian law that a child should stay with its

natural parents; this is disputed by the Government.

89. The Commission considers that the taking into care of S on

13 December 1989 pursuant to section 11 of the 1953 Act was based on

relevant and sufficient reasons. Immediately prior to her arrival in

Oslo the applicant had witnessed the taking into care of her son, C,

whom she left behind in Bergen. In Oslo she was accommodated in a

crisis centre, from where she was transferred to the Ullevål hospital

due to her poor state of health. Based on the information obtained from

the applicant herself, from the authorities in Bergen as well as the

hospital, the applicant's physical and mental state of health was

considered to be such that she was incapable of taking care of S.

Having regard to this the Commission finds that there were relevant and

sufficient reasons for the order of public care and, having regard to

their margin of appreciation, that the Norwegian authorities could

reasonably consider that such an order was necessary.

90. Following the interim measure of care the issue was examined by

the CPC which held a hearing in the case on 2 May 1990. In its decision

of 3 May 1990 the CPC maintained the care order; as decisive in this

respect it was found that the applicant had big and unresolved mental

problems which burdened her social function and made her unable to

understand her daughter's need to the extent that the latter would live

in such conditions that her physical and mental health was liable to

be impaired or seriously endangered.

91. Here again the Commission considers that these reasons are

relevant to a decision to maintain a child in care. The decision was

based on the examination carried out by the social authorities and the

conclusions drawn therefrom in their report of 30 March 1990, the

conclusions of the expert appointed as well as the report submitted by

the expert engaged by the applicant herself. Furthermore, the decision

was based on the CPC's own impressions obtained during the hearing held

in the case. It is true that the applicant, in May 1990, was no longer

in hospital or in a crisis centre. However, the Commission finds it

justifiable not to terminate care unless the improvement in the

circumstances which occasioned it appears with reasonable certainty to

be stable. This did not appear to be the case and it would be contrary

to the interest of the child concerned to be transferred to her mother,

only to risk being taken into care again shortly afterwards.

92. In the light of this the Commission finds that also in May 1990

the Norwegian authorities had sufficient reasons for thinking that it

was necessary for the care decision to remain in force. Neither has it

been established that a different situation obtained when the County

Governor maintained the care decision on 9 November 1990.

93. When the question of care was considered again by the Oslo City

Court from 2 to 5 April 1991 the factual situation had changed. The

Court, which considered the question of continuing care on the basis

of the circumstances as they were when passing judgment, found it

established that the circumstances had developed to the extent that the

applicant could now give her daughter an acceptable upbringing as she

was well established in Oslo, living with the father of her oldest

child, C. Nevertheless, the Court decided to maintain the care order,

finding that lifting it at that time would endanger the child and harm

her permanently.

94. As already pointed out above (paras. 90-92) these are relevant

reasons to maintain a care order. Furthermore, the Commission recalls

that the City Court reached its conclusion on the basis of expert

evidence which supported this view and further indicated that the

applicant would not at that time be able to handle a return situation,

with S in a crisis, in an adequate and relevant way. The Commission

also recognises that difficulties may arise in consequence of the

termination of care of young children, which may call for a

continuation of a care order, at least for some time, especially where

the child has been taken into care at a very young age and has spent

a considerable period of time away from its natural parents. Thus,

having regard to the margin of appreciation which is left to the

national authorities and courts in this field, the Commission finds

that the Oslo City Court was entitled to think that it would be

necessary to maintain the care order at the time when judgment was

passed.

95. In sum the Commission finds that the decisions taken by the

Norwegian administrative authorities and courts as to the imposition

and maintenance of the care order concerning the applicant's daughter,

S, did not interfere with the applicant's right to respect for her

family life in a way which was not justified under paragraph 2 of

Article 8 (Art. 8) of the Convention.

CONCLUSION

96. The Commission concludes, unanimously, that there has been no

violation of Article 8 (Art. 8) of the Convention as regards the taking

of S into care and the maintaining of the care order.

bb. Deprivation of parental rights and access

97. The applicant maintains that it was the intention of the

authorities to place S for adoption from the very first day she was

taken into care. As from 19 December 1989 when S was placed in the

child care centre the applicant was only allowed access twice a week

for an hour and always with other persons present. In these

circumstances the applicant maintains that it would hardly be possible

to create a lasting relationship between her and S. Nevertheless, the

applicant argues that when the CPC decided, on 3 May 1990, to deprive

her of her parental rights with a view to adoption this was not based

on any relevant reasons other than impairing her chances of a

successful appeal against the public care measure, exemplified by the

fact that the CPC also decided to terminate access.

98. As regards the termination of access the Government contend that

this measure should be seen in the light of the other decisions

concerning care and parental rights taken by the CPC. Furthermore, the

Government maintain that, having regard to the applicant's attitude

vis-à-vis the authorities, her serious unresolved psychological

problems and S's need for stability in her personal development, the

CPC did not go beyond its margin of appreciation when deciding to

terminate access as a consequence of the decisions taken. As regards

the deprivation of parental rights the Government do not dispute that

section 20 of the Child Welfare Act of 1953 was applied with a view to

adoption, something they consider to be permissible as such under

Article 8 (Art. 8) of the Convention. They maintain that the expert

evidence produced showed with sufficient clarity that the applicant

could not give S proper care on a permanent basis. Furthermore, there

was a real danger of conflict between the applicant and the foster

parents for which reason it would not be in the interest of the child

if the parental rights remained with the applicant.

99. The Commission recalls (para. 76) that according to the case-law

of the Convention organs the mutual enjoyment by parents and child of

each other's company constitutes a fundamental element of family life.

Accordingly, the Commission considers that, as a point of departure,

the taking into care of a child should be regarded as a temporary

measure, to be discontinued as soon as the circumstances permit.

Measures of implementation should as far as possible be consistent with

the aim of reuniting the child with its natural parents and the State

should act in a manner calculated to enable the family tie to be

developed. Legal safeguards should furthermore be created which render

possible as from the moment of birth the child's integration in its

family (cf. Eur. Court H.R., Keegan judgment of 26 May 1994, Series A

no. 291, para. 50). Where a child has been taken away from its parents

and placed with alternative carers, it may in the course of time

establish with them new bonds which it might not be in its interest to

disturb or interrupt by reversing a previous decision taken. This is

accordingly a domain in which there is an even greater call than usual

for protection against disproportionate interferences.

100. Turning to the facts of the present case the Commission recalls

that the social authorities in their report of 30 March 1990 considered

it to be in the best interest of the child to be adopted for which

reason the applicant should be deprived of her parental rights and of

access to S. On 3 May 1990 the majority of the CPC decided to uphold

this view finding it of decisive importance for the development of S's

personality that, in view of the applicant's history, attitude and

state of health, S should be attached to persons whom she could

consider as being stable and secure parents in her adolescence. On

9 November 1990 the County Governor maintained this view.

101. Although the Commission agrees that the above considerations are

relevant as to the question of care and of parental rights, they cannot

be considered to be sufficient for a decision to deprive the applicant

of the latter. In particular the Commission notes that whereas the

question of care is of a temporary character which may be reviewed at

a later stage, the deprivation of the parental rights and of all rights

of access was, undisputedly, effected with a view to adoption which

gives it a more definitive character in that the eventual adoption

would constitute the final break between S and the applicant. Such an

ultimate measure is in the Commission's opinion not in accordance with

the well-established fundamental right of mutual enjoyment by parent

and child of each other's company. It should accordingly only be

considered permissible where particularly strong reasons for such a

measure are at hand.

102. The Commission does not consider that such strong reasons have

been put forward in this case. First, the Commission recalls that,

although the applicant admittedly had serious problems when she gave

birth to her child, she improved well whilst staying in Oslo and had,

in April 1991, reached a stage where the Oslo City Court acknowledged

that she would be able to give her daughter an acceptable upbringing.

Therefore, the Commission cannot accept the argument presented by the

Government that the applicant's state of health was such that she would

permanently be unable to care for her daughter.

103. The Commission also recalls that the CPC and the County Governor

placed considerable weight on the fact that S would be disturbed in her

development if she were to be moved from her foster parents. The

interest of the child is always of importance in matters of this kind

and in this case the Commission reiterates that S's stay at the foster

home was an important factor when considering the necessity of the

continuation of the care order. However, it is obvious that there will

always be a problem in this respect where children in care are placed

in a foster home and this cannot, therefore, be of decisive importance

when considering the question of the deprivation of parental rights

with a view to adoption. In this connection the Commission also rejects

the argument used by the Norwegian authorities that the applicant might

have disturbed the calm and stable foster home environment since, as

quite rightly pointed out by the applicant, any arrangements concerning

a continuing contact between mother and child could have been

implemented elsewhere.

104. As already established above (para. 102) the applicant's personal

situation had changed considerably when the Oslo City Court in

April 1991 decided on the questions of care and parental rights.

Nevertheless, the Court decided to maintain the decision to deprive the

applicant of her parental rights with a view to adoption, relying

decisively on the evaluation made by the court appointed experts.

105. As regards parental rights, however, the Commission recalls that

psychologist R inter alia based his opinion on the assumption that the

applicant should have access to the foster home, something which, as

indicated above, had no basis in fact. Furthermore, psychologist S

maintained that it would be impractical and complicating if a person

other than the foster parents should have parental rights. The Court

also agreed with the experts that there existed a real danger of

conflict between the foster parents and the applicant and, finally, the

Court referred to the fact that the applicant had become a stranger to

her daughter since they had not had any particular contact with each

other.

106. Having regard to the irreversibility which the deprivation of

parental rights and access had in the present case the Commission does

not find that the Court's reasons were such that they could justify a

departure from the principles that govern the respect for family life

(cf. para. 99 above). In particular concerning the Court's reference

to the lack of contact between the applicant and S, the Commission

finds that the duration of the proceedings is a further element to be

taken into consideration when considering the interference complained

of. The proceedings commenced on 13 December 1989 when S was taken into

care and ended on 19 September 1991 when the Supreme Court refused to

grant leave to appeal. Accordingly, they lasted approximately one year

and nine months. Having regard to the fact that during this period the

case was dealt with first by the CPC, then the County Governor and

subsequently by the courts at two levels, such a period would not in

itself appear excessive. The Commission also accepts that a good

administration of justice may make it difficult to avoid some delays

in the determination of complex and sensitive issues.

107. However, the Commission recalls that whereas the applicant during

the period in question initially had access to S which enabled her to

maintain some contact with her daughter, this changed decisively when

the CPC deprived her of her parental rights and terminated access. As

from 30 May 1990 the applicant had no possibility of developing her

relationship with her daughter and her requests for interim measures

in order to restore access were refused. In such circumstances the

Commission stresses that the authorities were under a duty to exercise

exceptional diligence, in particular bearing in mind what was at stake

for the applicant and since there obviously existed a danger that any

procedural delay in the absence of any access arrangements would result

in the de facto determination of the issue submitted to the court

before it had finally decided the case.

108. Irrespective of the final outcome as to the question of adoption,

an effective respect for the applicant's family life required that the

question of parental rights be speedily determined in the light of all

relevant considerations. The mere passing of time should not be a

decisive factor. In this respect, however, the Commission notes that

when the Oslo City Court decided the case, the applicant had been

denied access to S for about ten months, and that one of the reasons

given by the City Court in its judgment was that the applicant was a

stranger vis-à-vis her child since the child had not had any particular

contact with her mother.

109. Making an overall assessment of the circumstances of the present

case and the reasons adduced by the CPC, the County Governor and the

City Court, the Commission finds that the deprivation of the

applicant's parental rights was not a proportionate measure and could

therefore not be considered "necessary in a democratic society".

CONCLUSION

110. The Commission concludes, by eleven votes to two, that there has

been a violation of Article 8 (Art. 8) of the Convention, as regards

the decision to deprive the applicant of her parental rights and

access.

D. As regards Article 6 (Art. 6) of the Convention

111. The applicant complains that the issues concerning care and

parental rights were not determined within a reasonable time and that

she has, therefore, been the victim of a violation of Article 6 para. 1

(Art. 6-1) of the Convention. However, having regard to its above

conclusion in respect of Article 8 (Art. 8) of the Convention, the

Commission considers that it is not necessary to examine the case under

Article 6 (Art. 6) as no separate issue arises under this provision in

the circumstances of this case.

CONCLUSION

112. The Commission concludes by twelve votes to one, that no separate

issue arises under Article 6 (Art. 6) of the Convention.

E. As regards Article 13 (Art. 13) of the Convention

113. The applicant has invoked Article 13 (Art. 13) of the Convention

and maintains that she did not have an effective remedy before a

national authority for the complaints of unjustified interference with

her right to respect for her family life. However, having regard to its

above conclusion in respect of Article 8 (Art. 8) of the Convention,

the Commission considers that it is not necessary to examine the case

under Article 13 (Art. 13) as no separate issue arises under this

provision in the circumstances of this case.

CONCLUSION

114. The Commission concludes, unanimously, that no separate issue

arises under Article 13 (Art. 13) of the Convention.

F. Recapitulation

115. The Commission concludes, unanimously, that there has been no

violation of Article 8 (Art. 8) of the Convention as regards the taking

of S into care and the maintaining of the care order (para. 96).

116. The Commission concludes, by eleven votes to two, that there has

been a violation of Article 8 (Art. 8) of the Convention as regards the

decision to deprive the applicant of her parental rights and access

(para. 110).

117. The Commission concludes, by twelve votes to one, that no

separate issue arises under Article 6 (Art. 6) of the Convention (para.

112).

118. The Commission concludes, unanimously, that no separate issue

arises under Article 13 (Art. 13) of the Convention (para. 114).

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

(Or. English)

PARTLY DISSENTING OPINION OF Mr. H.G. SCHERMERS

In my opinion there is no violation of Article 8 of the

Convention. I agree that the mutual enjoyment by parents and children

of each other's company constitutes a fundamental element of family

life, but there are cases in which the prevailing interest of the child

requires the severance of family ties. Decisions in this field are

difficult and require good knowledge of the factual situation.

Authorities on the spot are inevitably better equipped to evaluate the

situation than the European Commission of Human Rights. The Commission,

therefore, should interfere only where an infringement of family life

and the absence of sufficient justification are clear. In the present

case I find insufficient ground to criticise the national authorities

in this respect.

On the other hand I do find a violation of Article 6. The parties

do not dispute that Article 6 applies to the present case. The

proceedings related not only to the question of care but also to the

question of depriving the applicant of her parental rights and access

with a view to adoption. Their outcome was thus decisive for the future

ties between mother and child. Since these ties constitute the very

substance of family life there can be no reasonable doubt that the

proceedings involved the determination of a "civil right" of the

applicant.

It is not in dispute between the parties that the period to be

taken into consideration in the present case started on

13 December 1989 when S was taken into care and ended on

19 September 1991 when the Supreme Court refused to grant leave to

appeal. It was thus a period of approximately one year and nine months.

The reasonableness of this period is to be assessed according to

the particular circumstances and having regard, notably, to the

complexity of the case, to the conduct of the parties and the

authorities concerned and to what was at stake for the applicant in the

litigation (cf. for example Eur. Court H.R., H. v. the United Kingdom

judgment of 8 July 1987, Series A no. 120, p. 59, para. 71).

In my opinion there are particular circumstances in this case

which required a speedy decision. The case was not particularly

complex. The applicant was in Oslo and her history was well documented.

S was in care and the questions to be determined were clear, although

a considerable amount of evidence had to be collected and assessed.

As regards the conduct of the parties the Government point out

that the CPC determined the case on 3 May 1990, i.e. only four months

and three weeks after S had been taken into care. Having regard inter

alia to the need to obtain an expert opinion such a period cannot be

considered to be excessive. Furthermore, they maintain that the period

until 9 November 1990, when the County Governor determined the matter,

was not excessive. The Government also maintain that the judicial

proceedings are beyond criticism, in particular since they lasted only

ten months and six days and involved two court levels.

I agree that the space of time from 13 December 1989 until

3 May 1990 when the CPC determined the case does not disclose periods

of inactivity which could give rise to criticism. The expert opinion

was available on 13 February 1990, the report from the social

authorities was submitted on 30 March 1990 and the report from the

expert engaged by the applicant was available on 17 April 1990.

Furthermore, during this period of time, the applicant had access to

S, albeit only twice a week, which enabled her to maintain some contact

with S.

As is mentioned in para. 107 of the Commission's Report the

situation changed decisively when the CPC deprived the applicant of her

parental rights and terminated access. A process of gradual alienation

started.

Good court proceedings necessarily take time, but in the

relationship between parents and children such time may not be

available. A factual separation of many months may cause irreparable

damage for which reason speedy action is required. Either should

interim measures continue the relationship between parents and children

or measures should be taken in order to obtain a decision within an

extremely short period of time.

Under the circumstances of the present case I find it

unacceptable that the County Governor needed approximately five months,

and the courts, in addition, more than ten months to decide the case.

The proceedings taken as a whole, were accordingly not concluded within

a reasonable time.

(Or. English)

PARTLY DISSENTING OPINION OF Mr. L. LOUCAIDES

I find myself in disagreement with the majority of the Commission

in this case in so far as it finds a violation of Article 8 of the

Convention in respect of the decision to deprive the applicant of her

parental rights and access.

I believe that the majority's conclusion in this respect was

unduly and unjustifiably influenced by the fact that it took the

national authorities, and in particular the Oslo City Court, some

months to determine the applicant's claims.

I am of the view that the time spent by the competent authorities

in order to reach their final conclusions on the relevant dispute was

in the circumstances of the case reasonable and that, therefore, to the

extent that such time contributed to the factor of lack of contact

between the applicant and her daughter, this was inevitable.

National authorities, including in particular the courts, must

be allowed sufficient time to consider carefully the material placed

before them and reflect cautiously on the various issues. There is a

limit in the speed with which such a task should be expected to be

carried out if the administration of justice is to satisfy the

essential requirement of quality alongside with the avoidance of undue

delay. It would be unrealistic to demand quick decisions which in

theory may be necessary but in practice impossible to obtain due to the

need for a proper consideration of all the relevant material and

aspects of the questions at issue.

Interim measures such as those requested by the applicant were,

in view of the nature of the matters in dispute, interlinked with the

merits of the case which the national courts had to determine finally;

and this was done within a reasonable time.

Furthermore, I believe that the courts have properly weighed the

interests of the applicant against those of her child.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

10 October 1990 Introduction of application

31 October 1990 Registration of application

Examination of admissibility

14 October 1992 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

26 January 1993 Government's observations

17 and 26 March 1993 Applicant's observations in reply

13 October 1993 Commission's decision to declare the case

admissible

Examination of the merits

25 October 1993 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

21 February 1994 Government's observations

9 March 1994 Commission's consideration of state of

proceedings

13 April 1994 Commission's consideration of state of

proceedings

20 April 1994 Applicant's observations

6 September 1994 Commission's consideration of state of

proceedings

11 January 1995 Commission's deliberations on the merits

and final vote

17 January 1995 Adoption of Report

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JOHANSEN v. NORWAY

JOHANSEN v. NORWAY

LEXI