Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21687/93

by B.H.

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 October 1992

by B.H. against Norway and registered on 20 April 1993 under file

No. 21687/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Norwegian citizen, born in 1956. She is

residing at Skogbygda, Norway. Before the Commission she is represented

by Mrs. Liv Clemetsen, a lawyer practising in Oslo.

A. Particular circumstances of the case

The applicant has a daughter, born in 1972, and a son, A, born

in 1979. The applicant divorced the children's father in 1980 and

received custody over both children. In 1986 the daughter experienced

certain psychological problems in which the social authorities were

involved and thereby became aware of A's problems in connection with

his starting school. He had showed very aggressive behaviour and

restlessness at school and during the following two years the social

authorities assisted the applicant in the upbringing of A and, in

addition, he attended weekly special classes at a child and youth

psychiatric clinic.

However, the social authorities noticed that A's behaviour

worsened and the situation around him in general became precarious.

Therefore, on 30 May 1988, they suggested to the Client and Patient

Committee of Østensjø (Østensjø klient- og pasientutvalg), hereinafter

the CPC, that A should be taken into public care. The CPC decided on

28 September 1988 to place A in a children's home until a foster home

was found.

The applicant appealed against this decision to the County

Governor (Fylkesmannen) of Oslo and Akershus who suspended the care

order until A had undergone some already planned somatic and

psychological examinations. However, on 30 March 1989 the applicant

agreed to the public care as she apparently was no longer able to take

care of A, with the result that her appeal to the County Governor was

withdrawn. On 26 June 1989 A was accordingly placed in a children's

home and started in a new school.

On 16 March 1990 the applicant withdrew her consent and claimed

that she had misunderstood the procedure. She had never intended to

withdraw her appeal to the County Governor but had merely accepted that

the appeal should not suspend the care order.

On 1 June 1990 the results of the above-mentioned examinations

became available and on 12 June 1990 the CPC decided to maintain the

care of A according to Section 16 (a) of the Child Welfare Act (Lov om

Barnevern). The CPC noted in its decision that A was a neurotic child

who had suffered mentally but that he had shown signs of improvement

and of a positive development after having been placed at the

children's home and changing schools. The CPC feared, however, that the

applicant did not have sufficient knowledge of the boy's problems or

would not manage to give him the required security and firm limits

which he needed in order to continue this positive development. The

applicant appealed against this decision to the County Governor.

Meanwhile, on 7 August 1990, A was placed in a foster home with regular

access to his mother and sister. On 30 January 1991 the County Governor

upheld the care order of 12 June 1990.

Following the decision of the County Governor, the applicant

instituted proceedings in the Oslo City Court (Oslo byrett) on

5 February 1991 maintaining that the care order of 12 June 1990 should

be lifted.

On 6 February 1991 the defendant State represented by the Child

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

submitted their observations and requested the Court to maintain the

care order.

On 10 May 1991 the Court appointed two experts, who were asked

to evaluate A's care needs and the applicant's ability to take care of

him both at present and also in respect of the future. The experts were

also asked to assess how it would affect A's development if he either

returned to the applicant or stayed in the foster home with regular

visits by the applicant.

The experts submitted their reports on 28 June 1991 and

30 July 1991, respectively. One expert recommended that the public care

of A be maintained whereas the other reached the conclusion that A

should return to the applicant.

The Court held hearings from 12 to 14 August 1991. The applicant,

assisted by her counsel, was heard as well as fourteen witnesses and

the appointed experts. On the basis of the evidence so obtained the

Court upheld the care order. In its judgment of 22 August 1991 the

Court concluded as follows:

(translation)

"The Court finds - with certain doubts - that given the

questionable home environment [A] should stay in the foster

home in public care. Restitution [of the care to the

applicant], as the Court sees it, would expose him to a

real risk of considerable regression as regards his

development compared to a continued placement in the foster

home. In the foster home he has shown clear progress in his

work at school and in the environment at home. Here he has

his friends and takes part in various sports activities.

The foster parents follow this up very well. He gets good

support from his foster mother with homework each evening.

In the Court's view it is important to secure this social

situation for a while. The Court refers here to (a

psychologist's) statement where she points out that the

next two years are very important for the boy's

development. A restitution would on the other hand now

imply many factors of uncertainty both in relation to the

applicant's capability to bring up the boy in accordance

with his needs, his situation at school and in his spare

time. Indeed, this assumed uncertainty surpasses surely the

degree of uncertainty that any other change of home for

a 12-year-old would lead to. The Court notes that it has no

basis for presuming that the foster parents no longer

manage to take care of the child even if his behavioural

problems, contrary to expectations, should worsen.

The Court finds it difficult, in this

connection, to attach any decisive importance to

the boy's explicit wish to come home. He is

apparently strongly attached and loyal to his

mother. At the same time he is attached to the

foster family. The foster mother explained that

[A] had expressed a wish to live both with his

mother and with the foster family, and that he

would like to educate himself further in [the

area where the foster family lives].

The Court notes, however, that a restitution in the present

conditions would seem to be possible well before [A]

reaches the age of 18, perhaps after he has completed

[secondary school]. At present the son visits the applicant

one week-end every second month and she may also visit him

once a month in the foster home. The Court also considers

it important that the access be extended with the aim that

he should receive a more regular, and thereby a more

natural, contact with his mother."

On 18 September 1991 the applicant appealed against this judgment

to the Supreme Court (Høyesterett). In her appeal she pointed out,

inter alia, that it was A's explicit wish to come home and as he was

now more than 12 years old his wish should be of considerable

importance.

The defendant State filed a reply on 21 October 1991 requesting

the Supreme Court to uphold the City Court judgment.

The Supreme Court appointed two new experts who subsequently

submitted a common statement recommending that A should remain in the

foster home. The Court then held a hearing during which the applicant,

who was assisted by her counsel, as well as ten witnesses, were heard.

On 5 May 1992 the Court pronounced its judgment and noted, inter alia,

that while it found that the CPC had mistakenly characterised A as

neurotic and psychologically damaged, the Court agreed that it had been

necessary at that moment in time to take A into care. The Court then

stated, inter alia, as follows:

(translation)

"Apparently the situation could be understood as a question

of the return of a normal well-functioning boy to his well-

functioning mother, with whom he has kept in close contact

even after being taken into care, through visits and in

other ways, and expressed that he wishes to return to her.

Had the situation been as just described the request of

lifting the care order would most probably have been

granted. If a restitution [of the boy's care to the

applicant] is to be refused, there must be a real danger

that the boy will be exposed to considerable harmful

effects.

...

In reaching the conclusion that such a real danger of

considerable harmful effects is present, [the Court] has

especially emphasised the following: the progress and

development which [A] has shown can only be explained and

understood in the light of a comprehensive and consistent

monitoring of him and his activities. It seems difficult to

conclude otherwise than that such monitoring of him will

still be necessary. Furthermore, very strict limits will be

required also in the future. The court-appointed experts

have pointed out, and developed further in their

explanations to the Court, that [A] latently possesses the

features which resulted in extreme restlessness and

aggression. [A] is a very ambitious boy. Today he finds an

outlet for his ambitions in his school work and sports

activities. If he does not get support in such a way that

he can still cope with this, there is a considerable danger

that he will compensate for this through negative

activities, for example criminal actions, in negative

environments. Should such a situation develop, of which

there is a real possibility when he moves to a new

environment, it may be very difficult to correct this

situation.

The experts find it is obvious that the mother cannot

provide the support which is necessary for [A], should he

return to her, to continue his positive development. [The

Court] agrees with this. It is true that [the applicant],

as already set out, in many ways has developed personally

and she is clearly a loving mother who wishes the best for

her son. However, [the Court] cannot see that it has been

made probable that there have been changes to her more

fundamental character due to which she let [A] set his own

limits and left it to him to solve his own problems. This

is the reason for the fears that the mother is not able to

fulfil the care need which will be especially present in

the time after a restitution of the boy's care to her. As

pointed out, an unfortunate development, which cannot be

corrected, will have considerable detrimental effects on

[A].

..."

The boy is still placed in the foster home.

B. Relevant domestic law

According to Section 16 (a) of the Child Welfare Act protective

measures may be implemented if a child lives under such conditions that

its physical and mental health or development is liable to be impaired

or is seriously endangered.

According to the second paragraph of Section 31 of the Children's

Act (Barnelov) a child has from the age of 12 the right to express its

opinion before a decision is taken in any matter concerning its

personal welfare. It is furthermore emphasised that great importance

should be attached to the child's opinion.

COMPLAINTS

1. The applicant complains, on behalf of her son, that he has been

taken away from her against his will and, therefore, his right to

liberty and security of person under Article 5 of the Convention has

been violated. The decision to uphold the care order was illegal

as according to Section 31 of the Norwegian Children's Act a child has

from the age of 12 the right to express its own opinion before a

decision is taken in any matter concerning its personal welfare. The

applicant maintains that her son's wish to return to her was not taken

into consideration by the courts although he is now 14 years old.

2. Finally, the applicant complains, under Article 8 of the

Convention, that the taking into care of her son was an unnecessary

interference with the right to respect for her family life.

THE LAW

1. The applicant complains, on behalf of her son, that he has been

taken away from her against his will and, therefore, his right to

liberty and security of person as provided by Article 5 (Art. 5) of the

Convention has been violated. Article 5 para. 1 (Art. 5-1) reads, as

far as relevant, as follows:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases in accordance with a procedure prescribed

by law:

..."

In the present case the Commission notes that the applicant

complains on behalf of her son that his right to liberty has been

violated. It is clear that the alleged violation does not concern the

applicant directly and the Commission recalls furthermore that the

Court has previously held that Article 5 (Art. 5) was not applicable

to such restrictions on a child's liberty as resulted from the exercise

of the parents' or the custody holder's parental rights (cf., mutatis

mutandis, Eur. Court H.R., Jon Nielsen v. Denmark judgment of

28 November 1988, Series A no. 144, para. 73, p.26).

The Commission finds that the same applies when the social

authorities, as in the present case, have taken over the responsibility

for a child. It goes without saying that when a child is taken into

public care and placed in a foster home some restrictions are imposed

upon the child which, inter alia, prevent the child from leaving the

foster home and returning to the parents.

In such circumstances the Commission finds that the placement of

A did not amount to a deprivation of liberty within the meaning of

Article 5 (Art. 5), but was a responsible exercise by the social

authorities of their custodial rights in the interest of A following

the decision to take him into care.

In view of the above considerations, the Commission concludes

that this part of the application does not disclose any appearance of

a violation of Article 5 para. 1 (Art. 5-1) of the Convention and is,

therefore, manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant has furthermore complained, under Article 8

(Art. 8) of the Convention, that the care order regarding her son was

an unnecessary interference with the right to respect for her family

life. Article 8 (Art. 8) of the Convention reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission finds that the decision to take the applicant's

son into care constituted an interference with the applicant's right

to respect for her family life as ensured by Article 8 para. 1

(Art. 8-1) of the Convention.

It must therefore be examined whether this interference was

justified under the terms of Article 8 para. 2 (Art. 8-2). In this

respect the Commission recalls that three conditions must be satisfied:

the interference must be "in accordance with the law", it must pursue

one or more of the legitimate aims enumerated in Article 8 para. 2

(Art. 8-2) and it must be "necessary in a democratic society" for that

or those legitimate aims.

As regards the first condition, the Commission recalls that the

decision of the Norwegian authorities to take the applicant's child

into care was taken in accordance with the Norwegian Child Welfare Act

and was, therefore, a decision in accordance with the law.

The Commission furthermore finds that the interference had a

legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests

of the child, which in this case falls under the expression "for the

protection of health or morals" and "for the protection of the rights

and freedoms of others".

It remains hereafter to determine whether the interference was

"necessary in a democratic society" in the interests of the child.

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, requires that

it be proportionate to the legitimate aim pursued. In determining

whether an interference is "necessary in a democratic society", the

Commission furthermore has to take into account that a margin of

appreciation is left to the Contracting States (cf. Eur. Court H.R.,

Olsson judgment of 24 March 1988, Series A no. 130, pp. 31-32,

para. 67). That does not mean, however, that the Commission's review

is limited to ascertaining whether the respondent State has exercised

its discretion reasonably, carefully and in good faith. It cannot

confine itself to considering the relevant 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 interference at

issue are "relevant and sufficient" (cf. the above-mentioned Olsson

judgment, p. 32, para. 68).

The present applicant claims that the social authorities'

decision to take A into care and the following refusals by the courts

to lift the care order were not based on sufficiently relevant reasons.

The Commission recalls that both the City Court and the Supreme

Court held oral hearings. The applicant was present at both hearings

and was assisted by counsel. Before these courts, the applicant had the

possibility of presenting the views which in her opinion would be

decisive for the outcome of the case. Having regard to these facts, the

Commission finds that, in so far as certain procedural requirements are

implicit in Article 8 (Art. 8), these requirements were satisfied since

the applicant was involved in the proceedings to a degree sufficient

to provide her with the requisite protection of her interests.

As regards the decision of public care in 1988 the Commission

recalls that the applicant gave reason to believe that she consented

to the public care of her son for which reason the case before the

County Governor was withdrawn. It was not until June 1990 the

authorities decided not to terminate the care of A, a decision which

was subsequently upheld by the City Court and the Supreme Court.

Concerning this refusal to terminate the care of A the Commission

recalls the judgments of the City Court and the Supreme Court of

22 August 1991 and 5 May 1992, respectively. The courts established

that although the boy had developed favourably he still needed a firm

and secure social framework. A change of school and environment in

general was likely to be detrimental for him, who still was found to

possess the features which resulted in extreme restlessness and

aggression. Finally, the courts found it unlikely that the applicant

would be able to secure the comprehensive monitoring and support which

the boy needed.

These conditions are clearly relevant for deciding to maintain

the care. Furthermore, the Commission recalls that a number of reports

made by experts were available to the courts when they considered the

care issue. The experts had, all but one, concluded that it was

premature to terminate the care as it would be detrimental to the boy

to return to the applicant due to the high degree of uncertainty as to

her abilities of meeting his care needs.

In the light of the above the Commission finds that the refusal

to terminate the care was supported by relevant and sufficient reasons

and that, having regard to their margin of appreciation, the Norwegian

courts were reasonably entitled to think that it was necessary to

uphold the care of A. Accordingly, the Commission concludes that this

decision can be regarded as "necessary in a democratic society" within

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

interest of the child.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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B.H. v. NORWAY

B.H. v. NORWAY

LEXI