FIFTH SECTION

DECISION

Application no. 26727/19 S.A. against Norway

The European Court of Human Rights (Fifth Section), sitting on 21 October 2021 as a Committee composed of:

Ganna Yudkivska, President, Arnfinn BÃ¥rdsen, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 30 April 2019,

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 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 was born in 1961 and lives in Norway. He was represented by Ms T. Totland, a lawyer practising in Oslo.

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 Ms E. Sawkins Eikeland, attorney at the same office.

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

4. The applicant, S.A. came to Norway from Morocco in 1985. Together with F.A. he has the children A, a boy born in 2001, B, a girl born in 2004, and C, a boy born in 1999.

5. In 2010 the police informed the municipal child welfare services that the applicant had punched and kicked a child who had bullied C. In a subsequent meeting with the child welfare services, the applicant and his wife stated that they knew that it was illegal to hit children in Norway and that they did not punish their own children physically. When punishing their own children they rather did so by not allowing them to go outside or play computer games.

6. In 2011 a teacher of B made a call to the child welfare services about B having made statements to the effect that she was being hit by the applicant. In the further case-processing information about A was also collected. Based on the information gathered, the three children were placed in emergency foster care by a decision of 23 September 2011, and their whereabouts were not disclosed to their parents.

7 . On 12 April 2012 the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) issued a care order in respect of A, B and C. The Board found it likely that all three children had been subjected to violence by their parents; all of them had, independently of each other, told about repeated violence and their parents had largely confirmed the children’s statements. By the time of the Board’s decision the applicant had moved to another country. He had not met in person before the Board, but had been represented by legal aid counsel. The Board considered that it was not necessarily a matter of long-term fostering, as it found that if their mother learnt not to use violence against the children, they could possibly be returned to her.

8 . On 7 September 2012 the City Court ( tingrett ) upheld the care order. The applicant had not met at the City Court’s hearing, as he had by then moved to Belgium. He was represented by legal aid counsel, who on his behalf argued before the City Court that the best solution for the children would be that they grow up with their mother. He therefore opposed the care order. In the event that the care order would be upheld, he submitted that he did not oppose the child welfare services’ proposal in respect of contact rights. The applicant since moved back to Norway.

9 . The children’s mother later instituted proceedings to have the care order in respect of B lifted. In its decision of 25 March 2014 the Board declined her application and that decision was confirmed by the City Court on 16 February 2015. The City Court held a meeting over four days where twenty witnesses in addition to a court-appointed expert gave evidence. In the course of the same proceedings, the parents’ rights to contact with A, B and C were also set, and, as to the applicant, his contact rights were set at three hours, two times yearly, in respect of all three children, under supervision. That decision on contact rights was in line with what the children themselves had wished for and what had been proposed by the court-appointed expert.

10 . In 2017 the applicant and the children’s mother applied to the Board for a revision of the contact rights regime concerning A and B. A had by then become sixteen years old and B thirteen. In the course of the proceedings A had stated that he did not see the point of having contact with the applicant, but that he was willing to continue sessions if he was allowed to stop them if they did not improve. B had, through her representative ( talsperson ) expressed that she wanted one contact session with the applicant yearly. Both children wanted the contact sessions to be supervised.

11 . On 9 November 2017 the Board decided that the applicant should be entitled to contact three hours, once yearly, under supervision, with A and B. Their mother’s contact rights were fixed in the same decision.

12 . The applicant brought the Board’s decision before the City Court, which held a meeting on 1 and 2 March 2018. The applicant was present, with counsel, and gave evidence. A also gave evidence. The children’s mother did not attend the meeting. Six witnesses were heard. Before the City Court, the applicant argued that a right to contact once a year, as had been fixed by the Board, violated his human rights. He maintained that according to case-law from the European Court of Human Rights, placements in care should always be temporary and contact therefore had to support reunification of the biological family; one contact session a year could not suffice to achieve reunification. That was particularly so in this case, since, the applicant argued, the child welfare services had not attended to the children’s cultural and religious identities. Four to six contact sessions would be correct in this case, in any event in respect of B.

13 . In its judgment of 19 March 2018 the City Court stated that it was undisputed that the placements in care of A and B had to be considered as long-term. After having drawn up the legal framework, which included having regard to the Court’s case-law, it stated that its starting point would be the children’s own opinions.

14. A, who would turn 17 years old later that year, had expressed that one contact session a year with the applicant sufficed and that it should be supervised. He thought that there had been problems and a “lot of issues” ( mye greier ) in connection with his contact with the applicant and in the court house, before A gave evidence, there had been an episode between the applicant and his foster father, which he found unpleasant. B, who would turn 14 years old later that year, had – to his representative – said that she in respect of the applicant wanted one contact session of three hours a year. She wanted that her foster mother, A and C and a supervisor be present.

15 . In the light of the children’s age and strong opinions on the matter, the City Court found that the question would essentially be if there were grounds to depart from their wishes. Upon an examination of each child’s situation and the question of contact in respect of each of their parents, the City Court concluded, as regarded the applicant, that the contact rights should be set in alignment with the children’s own wishes.

16 . On 28 August 2018 the High Court ( lagmannsrett ) refused both the applicant and the children’s mother leave to appeal against the City Court’s judgment.

17 . On 9 November 2018 the Supreme Court ( Høyesterett ) dismissed the applicant’s appeal against the High Court’s decision.

18 . Contact rights between a child in public care and his or her parents are regulated in section 4-19 of the 1992 Child Welfare Act ( barnevernloven ), which provides that the extent of the contact rights is decided by the County Social Welfare Board. Under the same provision, the private parties can demand that the matter be reconsidered by the Board as long as at least twelve months have passed since the Board or the courts last considered it. Current sections 1-6 (which in 2018 replaced a part of section 4-1) and 6-3 set out, inter alia , that all children capable of forming their own opinions have the right to participate, receive information and give their opinions in matters relating to them. Furthermore, it follows from the said provisions that the child shall be heard and that importance shall be attached to the child’s opinions according to his or her age and maturity.

COMPLAINT

19. The applicant complained under Article 8 of the Convention about the amount of the contact rights that he had been granted with regard to A and B.

THE LAW

20. The applicant maintained that the limitations imposed on him with regard to contact with his children A and B had violated his right to respect for his 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.”

21. The Government submitted that the limitations imposed on the applicant’s right to contact with the children had been supported by relevant and sufficient reasons and decided in the course of a decision-making process that had been fair and afforded due respect to the applicant’s rights. They emphasised that the City Court had justified the measures in a detailed reasoning spanning over twelve pages, taking note that the evidence presented, including medical experts, had provided clear proof that contact sessions were harmful to the children’s health and development. The domestic authorities had also carefully considered the importance of cultural affiliation and identity and had been justified in giving significant weight to A and B’s own views, considering their maturity at the age of 15 and 17 years old at the time of the City Court’s hearing.

22. The applicant argued that the child welfare services had early on decided that the children should be prohibited from seeing the applicant, as he had exposed them to violence. During the following proceedings, the children’s experiences had been confirmed and together with the limitations that had been imposed, the end result had become that they no longer wanted to meet him. It was accordingly not contested that the children had preferred eventually not to have contact with the applicant, but argued that that had been caused by the fact that an extremely strict contact regime had been established from the outset. The applicant had at no point received any offer of guidance or follow-up from the child welfare services; all steps aimed at improving his parental skills had been taken by himself.

23. 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.

24. The Court notes 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 (cited above, §§ 59-60); 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).

25. Turning to the facts, the Court observes that the application concerns the limitations on the applicant’s right to contact with A and B imposed in the course of the proceedings that started in 2017 and ended with the Supreme Court’s Appeals Committee’s decision of 9 November 2018 (see paragraphs 10-17 above). In those proceedings, the City Court’s judgment of 19 March 2018 became the final decision on the merits (see paragraphs 13-16 above). The Court does not find that it can be called into question that the contested limitations on the applicant’s contact rights upheld in that judgment were an “interference” in the applicant’s right to respect for his family life, that they were in accordance with the law, namely the 1992 Child Welfare Act (see paragraph 18 above), and that they served the legitimate aims of protecting A’s and B’s “health and morals” and their “rights” in accordance with Article 8 § 2 of the Convention. The remaining question is accordingly whether they were also “necessary in a democratic society” in the sense that those terms are employed in that provision.

26. With regard to that question, the Court observes, firstly, that the proceedings on the issue of contact rights were extensive. After the case had been dealt with by the Board (see paragraphs 10-11 above), the City Court held a meeting over two days, where the applicant was present, with counsel, and gave evidence. A also gave evidence and so did six witnesses (see paragraph 12 above). The children’s views were obtained (see paragraph 10 above) and there was also some degree of review inherent in the leave to appeal-proceedings (see paragraphs 16-17 above).

27. As to the City Court’s decision on the merits, the Court observes that it was undisputed before that court that the fostering of A and B would be long-term (see paragraph 13 above). Furthermore, the City Court gave importance to the children’s strong opinions on the questions concerning contact rights, given their age; having examined each of the children’s situation, the City Court concluded that the rights should be fixed in line with what they had wished (see paragraph 15 above).

28. While the limitations were far-reaching measures which according to the Court’s case-law must be subject to a “stricter scrutiny” (see, for example, Strand Lobben , cited above, § 211), the Court also takes particular note that it was a matter of children at the age of 15 and 17 who had, at the time of the City Court’s judgment, been in foster care for approximately six years after the Board had issued the care order in 2012 (see paragraph 7 above), and who had strong opinions on the issue. The children’s rights to participate in the decision-making process and have due weight given to their views followed from domestic law (see paragraph 18 above) as well as international law, including Article 12 of the United Nations’ Convention on the Rights of the Child. The City Court nonetheless carried out a broader assessment of each child’s interests and to the Court’s assessment, the importance given to their own wishes in the light of their age and maturity aligned with its general case-law concerning the importance that ought to be given to children’s views in matters which concern them (see, for example, K.B. and Others v. Croatia , no. 36216/13, § 143, 14 March 2017, and the references therein). The Court therefore considers that, viewed in isolation, the reasons given by the City Court were relevant and sufficient to justify the impugned limitations on the applicant’s contact rights imposed at the time.

29. The Court nonetheless notes that the applicant’s arguments relate less to those reasons than to the fact that limitations on the applicant’s contact rights had already been imposed in the course of the prior proceedings. A key submission from the applicant is that such limitations that had been imposed from early on in the fostering process had contributed to alienating the children from the applicant, which – according to him – had manifested itself in their opinions as given in the course of the proceedings brought before the Court.

30. The Court emphasises in that context that the proceedings prior to those that started in 2017 (see paragraph 10 above) fall outside the scope of its jurisdiction in the instant case (see, similarly, Strand Lobben and Others , cited above, §§ 142-147). They may still inform the Court’s assessment of the instant case by providing context (ibid., § 148), and the Court thus takes note that there had indeed been considerable restrictions on the applicant’s contact rights for a long time when the impugned decision was taken (see, for example, paragraph 9 above). It would however go beyond the Court’s task to speculate as to the causes of the children’s opposition to more extensive contact with the applicant in the course of the proceedings brought before it, which is an evidentiary matter. Moreover, the Court observes, among other things, that the care order had been issued on grounds of domestic violence (see paragraph 7 above) and that the applicant himself had moved abroad during the care order proceedings (see paragraph 8 above). Taking account of such factors, the Court does not find that it in any event has any basis in the instant case for arriving at the conclusion that the respondent Government are responsible for a situation of family breakdown because they have failed in their positive duty to take measures to facilitate family reunification as soon as reasonably feasible (see, for example, Strand Lobben and Others , cited above, § 208).

31. In the light of the foregoing considerations the Court finds that the application discloses no appearance of a violation of Article 8 of the Convention. It follows that it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 November 2021.

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Martina Keller Ganna Yudkivska Deputy Registrar President