FIFTH SECTION

DECISION

Application no. 50286/18 C.E. against Norway

The European Court of Human Rights (Fifth Section), sitting on 1 July 2021 as a Committee composed of:

Lətif Hüseynov, President, Lado Chanturia, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 12 October 2018;

the decision to give notice to the Norwegian Government (“the Government”) of the application;

the decision not to have the applicant ’ s name disclosed;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the comments submitted by the Governments of the Czech and Slovak Republics and the organisation Ordo Iuris Institute of Legal Culture, who were granted leave to intervene by the President of the Section;

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms C.E. is a Norwegian national, who was born in 1988 and lives in S. She was represented before the Court by Ms A. Skjelbred, a lawyer practising in Tønsberg.

2 . The Norwegian Government (“the Government”) were represented by Mr M. Emberland of the Attorney General ’ s Office (Civil Matters) as their Agent, assisted by Mr H. Vaaler, attorney at the same office.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant is the mother of several children, including a girl, X, born in November 2012. An emergency placement decision was made in respect of X immediately after her birth, and that decision was ultimately upheld by the City Court ( tingrett ) on 1 February 2013.

5 . On 14 February 2013 the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) issued a care order in respect of X. Upon its having been brought before the courts for review, the care order was upheld by the City Court on 15 January 2014. The applicant appealed against the City Court ’ s judgment to the High Court ( lagmannsrett ), which on 25 April 2014 refused leave to appeal. The applicant appealed against the decision refusing her leave to appeal. On 9 June 2014 the Supreme Court ( Høyesterett ) dismissed her appeal.

6 . On 17 November 2014 the applicant applied to the County Social Welfare Board to have the care order in respect of X lifted.

7 . A hearing was held on 2 and 3 June 2014. The Board ’ s bench was composed of one jurist qualified to act as a professional judge, one psychologist, and one lay person. The applicant attended the hearing with her legal aid counsel and gave evidence. Seven witnesses were heard.

8 . On 18 June 2015 the Board decided not to lift the care order. The Board, upon an extensive examination of the circumstances of the case, found that the applicant would be unable to provide X with adequate care and thus that the condition set out in the first sentence of the first paragraph of section 4-21 of the Child Welfare Act for lifting a care order had not been met (see paragraph 20 below).

9 . The Board also assessed the criterion in the second sentence in the first paragraph of section 4-21 of the Child Welfare Act, according to which a care order should not be lifted if the child, after an overall assessment, would have substantial problems if returned to the biological parent due to the developed attachment to the people and the environment in which the child stayed (see paragraph 20 below). In that respect the Board noted that X had by then lived all her life with her foster mother, whom she perceived as her psychological mother and to whom she had her safe attachment. It carried out a further assessment of the risks that a return of X to the applicant would entail, and stated that it was not in doubt that such a return would be very damaging to X both in a long and in a short-term perspective.

10 . On 22 July 2015 the applicant brought the decision of the Board before the District Court, contesting both the refusal to lift the care order and a decision on contact rights that had been made by the Board at the same occasion. A hearing of the case was conducted on 16, 17 and 18 December 2015, and during the hearing the applicant withdrew her application to have the care order lifted.

11 . The District Court was still to decide on the issue of contact rights, which it did in its judgment of 5 January 2016. The applicant appealed against that judgment, but on 29 March 2016 the High Court refused her leave to appeal.

12 . On 25 October 2016 the applicant anew applied to have the care order in respect of X lifted.

13 . On 31 January 2017 the County Social Welfare Board, sitting only with its chairperson, dismissed the application.

14 . The Board noted that when it, in 2016, had assessed the applicant ’ s claim to have the care order lifted, filed in 2014 (see paragraphs 6-9 above), it had dismissed that claim in part on the grounds set out in the second sentence of the first paragraph of section 4-21 of the Child Welfare Act, which related to the problems that a removal of X from her foster home could entail for her (see paragraph 9 above). For that reason, the parties would only have the right to a full new examination of the question of lifting the care order upon having adduced evidence to show that a significant change had taken place in the child ’ s situation, in accordance with the second sentence of the second paragraph of section 4-21 (see paragraph 20 below).

15 . The Board went on to refer to submissions of the applicant to the effect that her life situation, and thus ability to care, had improved, but found this not to have decisive significance as it considered the decisive factor under the second sentence of the second paragraph of section 4-21 to be whether there had been any significant changes in X ’ s – and not the applicant ’ s – situation. In this assessment the Board found, among other things, X ’ s relationship to both her foster mother and to the applicant to be relevant. The Board concluded that it had not been substantiated that any significant changes had occurred. Furthermore, although the Board could decide to hear the case in full regardless of whether any party held a legal right to such a hearing or not, it found that it would not do so in the instant case, since none of the circumstances pointed out by the applicant had any decisive importance for the case and the Board had only one and a half years earlier concluded that X could not be removed from her foster home owing to the problems it would cause her (see paragraph 9 above).

16 . The applicant brought the Board ’ s decision before the District Court for review. The District Court ’ s bench was composed of one professional judge, one psychologist and one lay person. The applicant attended the District Court ’ s hearing together with her counsel, and gave testimony. Two witnesses were heard.

17 . On 7 June 2017 the District Court upheld the Board ’ s decision to dismiss the case. Like the Board, it considered the applicant ’ s arguments not relevant and found that in the light of the evidence, it had not been substantiated that there had been relevant changes in X ’ s situation.

18 . The applicant appealed against the District Court ’ s judgment to the High Court, which on 13 February 2018 upheld it. The High Court ’ s review focused on whether the second sentence of the second paragraph of section 4-21 of the Child Welfare Act (see paragraph 20 below) had been correctly interpreted to apply to a case such as the present, where the care order had previously been continued on the basis not only of the child ’ s attachment to her foster home (see paragraph 9 above), but also on the basis of the parent ’ s inability to provide the child with appropriate care (see paragraph 8 above). It concluded that the procedural limitation set out in the second sentence of the second paragraph section 4-21 applied also in a case where inability to provide care had formed part of the basis for a prior refusal to lift a care order, such as in the applicant ’ s case.

19 . On 18 April 2018 the Supreme Court refused the applicant leave to appeal against the High Court ’ s judgment.

20 . Section 4-21 of the 1992 Child Welfare Act ( barnevernloven ) provides:

“The county social welfare board shall revoke a care order where it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child ’ s foster parents shall be entitled to state their opinion.

The parties may not request that a case concerning revocation of a care order be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a request for revocation of the previous order or judgment was not upheld with reference to section 4-21, first paragraph, second sentence, new proceedings may only be requested where documentary evidence is provided to show that significant changes have taken place in the child ’ s situation .”

COMPLAINT

21 . The applicant complained under Articles 6 and 8 of the Convention about her not having been allowed to fully present the case as concerned her claim, filed in 2016, to have the care order in respect of X lifted.

THE LAW

22 . The applicant complained that the decision not to lift the care order in respect of X without a full new review of her caring skills had violated her right to respect for her family life as provided in Article 8 of the Convention, which 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.”

Furthermore, the applicant complained that there had, for the same reasons, been a violation of Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

23 . The applicant argued that the condition set out in the domestic legislation to the effect that care orders could not be lifted if the child in question had become so attached to his or her foster home that a removal therefrom could lead to serious problems for him or her, entailed that there were no possibilities for the biological parents to fully present their claims to have care orders lifted in a case such as hers. In her view, the said condition also entailed a lack of access to a court.

24 . Furthermore, in her response to the Government ’ s observations, the applicant submitted, in addition to her initial complaints, that there had also been a violation of her right to respect for her private life in so far as the authorities had not offered sufficient supportive measures before the placement of X in public care, nor had they aimed for reunification after the care order had been issued.

25 . The Government raised the question whether the applicant complained about substantive or only procedural aspects under Article 8 of the Convention, but otherwise accepted that the complaint was admissible. However, they noted that the application contained no arguments to the effect that the refusal to lift the care order had violated the applicant ’ s substantive rights under Article 8, and that her arguments were solely directed against the procedural obligations under Articles 6 and 8. They stated that they would nonetheless argue that the decision not to lift the care order had not violated the applicant ’ s rights under Article 8.

26 . As to the limitation on further review of the applicant ’ s claim to have the care order lifted, which was with what the application was mainly concerned, the Government submitted that in so far as the applicant raised questions about the interpretation of national law, this was primarily for the national authorities to decide on. On whether there had been any limitations on procedural rights under Article 8 of the Convention, the Government stated that the applicant had not been barred from applying for the care order to be lifted. She had also had the opportunity to give evidence and call witnesses and had not alleged that the conditions for a full, fresh, review had in fact been met in her case. Moreover, the Government emphasised that the childcare-case had already been assessed by the Board and domestic courts a total of nine times over a period of three years and five months and the purpose of the rule about which the applicant complained was to limit the right to institute full new review proceedings to situations where claims for revocation had some material chance of success. The Government could not see that the application gave rise to any separate issues under Article 6.

27 . The third party interveners – the Governments of the Czech and Slovak Republics and Ordo Iuris Institute of Legal Culture – primarily made submissions on the general principles within which to examine applications with complaints relating to proceedings that have concerned childcare-measures. Ordo Iuris also made a comparison of public childcare-practices in Norway and Poland.

28 . The Court reiterates that the general principles applicable to cases involving child welfare measures (including measures such as those at issue in the present case) are well-established in the Court ’ s case-law, and were extensively set out in the case of Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 202-13, 10 September 2019) , to which reference is made. The principles have since been reiterated and applied in, inter alia , the cases of K.O. and V.M. v. Norway (no. 64808/16, §§ 59-60, 19 November 2019); A.S. v. Norway (no. 60371/15, §§ 59-61, 17 December 2019); Pedersen and Others v. Norway (no. 39710/15, § 60-62, 10 March 2020); Hernehult v. Norway (no. 14652/16, § 61-63, 10 March 2020); and M.L. v. Norway (no. 64639/16, §§ 77-81, 22 December 2020).

29 . As concerns the applicant ’ s complaint, the Court notes, however, that it is of a different nature than those that led it to find violations of Article 8 of the Convention in the cases against the respondent State cited above (see paragraph 28). Notably the applicant ’ s complaint centred on procedural matters relating to section 4-21 of the 1992 Child Welfare Act (see paragraph 20 above).

30 . The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case, and that it has previously held that while Article 8 of the Convention contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. It considers that the complaint raised by the applicant under Article 6 of the Convention in the instant case is linked to her complaint under Article 8 and must be examined as part of the latter complaint (see, among other authorities, Eberhard and M. v. Slovenia , nos. 8673/05 and 9733/05, § 111, 1 December 2009).

31 . As concerns Article 8 of the Convention, the Court finds that it cannot be called into question that the proceedings relating to the decision not to lift the care order in respect of the applicant ’ s child, X, amounted to an interference with the applicant ’ s right to respect for her family life as guaranteed by that provision. Moreover, the Court finds that that interference was “in accordance with the law”. It notes in that connection that the applicant largely complained about the domestic legislation. It is however not the Court ’ s task to review that legislation in the abstract, nor does the Court have any grounds in the instant case for considering that the domestic authorities did not have a sufficient basis in that legislation to take the decision complained of. Furthermore, the Court finds that the decision not to lift the care order in respect of X pursued the legitimate aims of protecting X ’ s “health and morals” and her “rights” in accordance with the second paragraph of Article 8.

32 . The remaining question is whether the impugned decision was “necessary” within the meaning of that provision, and the applicant ’ s complaint is essentially that it was not, because the authorities, owing to the procedural rules in section 4-21 of the Child Welfare Act (see paragraph 20 above), had not allowed her to fully present her case as concerned her claim to have the care order lifted.

33 . The Court reiterates in that connection that biological parents ’ procedural rights, including their right to have access to proceedings in order to have a care order lifted or restrictions on contact with their child relaxed, form an integral part of their right to respect for their family life afforded by Article 8 of the Convention. At the same time the Court has acknowledged that there might be instances when repeated legal proceedings, owing to the particular circumstances of a case, may harm the child concerned and therefore be taken into account. It has also observed that any need to limit biological parents ’ futile or damaging use of legal remedies may be dealt with as a procedural issue, which is the case with regard to the domestic law applied in the instant case (see M.L. v. Norway, cited above, § 95).

34 . As to the concrete circumstances of the proceedings complained of, the Court observes that the applicant ’ s claim to have the care order in respect of X lifted, which she filed on 25 October 2016, was first examined by the County Social Welfare Board, sitting with its chairperson, who dismissed it on 31 January 2017. The Board found that in the course of prior proceedings in 2014-2016 concerning an earlier claim filed by the applicant to have the care order lifted, the authorities had refused to lift the care order at least in part on the basis of X ’ s attachment to her foster home and the problems it would have entailed to remove her from it (see paragraph 9 above). According to the second sentence of the second paragraph of section 4-21 of the Child Welfare Act, it was in such situations incumbent on the parties to show that there had been substantial changes on that point before the natural parent would be vested with a legal right to claim a full, fresh, examination by the Board on the merits of the question of whether a care order should be lifted. In this case, the applicant had not documented that any such change had taken place, and the Board did not, either, itself consider that a new full examination of that sort should be carried out (see paragraph 20 above).

35 . It follows from the above that the procedural decision taken by the Board on 31 January 2017 not to carry out a new full examination at that time (see paragraphs 13-15 above) was linked to the Board ’ s prior decision of 18 June 2015 (see paragraphs 8-9 above). The applicant has argued before the Court that there was an error in that decision of 18 June 2015, in so far as the Board should not at that time have based it on X ’ s attachment to her foster home and the problems it would have entailed to remove her from it (see paragraph 9 above), because it had concluded that the applicant would not be able to care for X (see paragraph 8 above). That argument is thus effectively that the Board with its decision of 18 June 2015, by carrying out that additional assessment of X ’ s attachment – which it according to the applicant should not have – erroneously created a procedural obstacle in respect of future claims to have the care order lifted, which in her case fell to her detriment in the proceedings complained of.

36 . For the Court it falls however to be noted that the decision of 18 June 2015 had become the final decision with regard to the care order at the time since the applicant on appeal had dropped her claim to have it lifted (see paragraph 10 above). That decision falls as such outside the scope of the complaint to the Court, but is relevant as context to the later proceedings that were before the Court. Regarded as context, the Court nonetheless observes that it was based on an extensive hearing and that the Board at that time gave detailed reasons in respect of its finding that X had become so attached to her foster home that a removal would entail considerable risk to her (see paragraph 9 above). Furthermore, the Court notes that that decision did not bar the Board from later carrying out a full new examination of whether the care order could be lifted were it deemed to be in the best interests of the child, even if the applicant did not show that any substantial changes had taken place (see paragraph 15 above).

37 . Moreover, the Court observes that when the Board ’ s decision of 31 January 2017 was brought before the District Court, a hearing was held where the applicant attended with counsel and gave evidence. Two witnesses were also heard (see paragraph 16 above). Based on the evidence presented to it, the District Court concluded, as had the Board, that there had not been any development with regard to the relation between the applicant and X that qualified as any considerable change in X ’ s situation (see paragraph 17 above).

38 . The Court also notes that upon the applicant ’ s appeal against the District Court ’ s judgment, focus apparently turned to the procedural system as such instead of whether the applicant had a right to claim a new trial in her individual case. In any event, the High Court found that the law had been interpreted and applied correctly, and did not make any assertions concerning the applicant ’ s original claim to have the care order lifted, including whether X ’ s situation had changed to the extent that the applicant would have had a legal right to a new, full, trial (see paragraph 18 above). The applicant ’ s appeal against the High Court ’ s judgment focused, again, on the general interpretation and application of the domestic law and not as such on the applicant ’ s situation (see paragraph 19 above).

39 . In the light of the above circumstances, the Court does not find that the application discloses any appearance of due respect not having been afforded to the applicant ’ s interests safeguarded by Article 8 of the Convention, of her having been refused access to a court, or of the proceedings having been unfair.

40 . As to the applicant ’ s additional assertions concerning failures on part of the domestic authorities owing to their allegedly not having aimed for reunification of the family and not having offered sufficient assistance measures prior to the care order that was issued in 2013 (see paragraph 24 above) – the Court notes that the domestic proceedings predating those that were instituted in 2016 and ended with the Supreme Court ’ s decision of 18 April 2018 (see paragraphs 12-19 above) do not fall within the scope of its jurisdiction in the instant case. As to the proceedings which were the object of the application, the Court does not in any event find that the application discloses any appearance of a violation on the basis of those grounds.

41 . It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously

Declares the application inadmissible.

Done in English and notified in writing on 22 July 2021 .

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Martina Keller Lətif Hüseynov Deputy Registrar President