RESOLUTION DH (97) 505

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS

OF 7 AUGUST 1996

IN THE CASE OF JOHANSEN AGAINST NORWAY

(Adopted by the Committee of Ministers on 29 October 1997

at the 605th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Conven ­ tion for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Johansen case delivered on 7 August 1996 and transmitted the same day to the Committee of Ministers ;

Recalling that the case originated in an application (No. 17383/90) against Norway, lodged with the European Commission of Human Rights on 10 October 1990 under Article 25 of the Convention by Ms Adele Johansen, a Norwegian national, and that the Commission declared admissible her complaints that there had been a violation of her right to respect for family life as guaranteed by Article 8 of the Convention on account of the order to take her daughter into public care, a decision of 3 May 1990 depriving her of her parental rights, the termination of her access to her daughter, the excessive length of the proceedings and their lack of fairness; the two last complaints were also raised under Article 6 of the Convention; in addition, she complained that contrary to Article 13 she had not been afforded an effective remedy in respect of her complaints under Article 8 ;

Recalling that the case was brought before the Court by the Commission on 1 March 1995 and by the Government of Norway on 3 April 1995 ;

Whereas in its judgment of 7 August 1996 the Court:

– held, unanimously, that the taking into care of the applicant's daughter and the maintenance in force of the relevant care decision did not give rise to a breach of Article 8 of the Convention ;

– held, by eight votes to one, that the decision of 3 May 1990, insofar as it deprived the applicant of her access and parental rights in respect of her daughter, constituted a violation of Article 8 ;

– held, unanimously, that there had been no violation of Article 6, paragraph 1, of the Convention ;

– held, unanimously, that it was not necessary to examine whether there had been a breach of Article 13 of the Convention ;

– held unanimously that it was not necessary to make an award for costs and expenses ;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention ;

Having invited the Government of Norway to inform it of the measures which had been taken in consequence of the judgment of 7 August 1996, having regard to Norway's obligation under Article 53 of the Convention to abide by it ;

Whereas, during the examination of the case by the Committee of Ministers, the Government of Norway provided the Committee with information about the measures taken in order to prevent new violations of the same kind as that found in the present judgment, which information appears in the appendix to this resolution,

Declares, after having taken note of the information supplied by the Government of Norway, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (97) 505

Information provided by the Government of Norway

during the examination of the Johansen case

by the Committee of Ministers

The public care measures at issue in the present case were based on the Child Welfare Act of 17 July 1953, which was replaced by new legislation on 1 January 1993, the Child Welfare Services Act 1992 (Law no. 100 of 17 July 1992 – see also paragraphs 41 to 45 of the Court's judgment).

The new Act notably introduced a new adjudicating body in the child welfare administration, the County Social Welfare Board (“the County Board”), in order to reinforce the legal protection of the child. However, the prerequisites for compulsory care and for deprivation of parental responsibilities remained essentially unchanged.

The question of the adoption of a child in compulsory care is a separate issue under the 1992 Act. If the parents object to adoption, such a measure cannot be taken unless the County Board gives its consent. Such consent may be given only if the parents are deemed permanently unable to provide the child with reasonable care, or if a removal may cause the child serious problems because of the child's attachment to the persons caring for him or her and to the environment where he or she is living.

Unlike the 1953 Act, the 1992 Act contains, in section 4-19, paragraph 1, a provision to the effect that both the child and the parent have a right of access unless the County Board decides otherwise in the child's interest. The travaux préparatoires of the 1992 Act emphasise the importance of contacts between child and parents.

Furthermore, the 1992 Act provides that the special procedure for judicial review provided for in Chapter 33 of the Code of Civil Procedure is applicable also to all decisions by the County Boards, including decisions on access (these were not subject to judicial review under the old law). In addition, it is no longer necessary to have a decision by the county governor before being able to seek judicial review of care decisions and deprivation of parental responsibility.

The Government of Norway is of the opinion that the Court's judgment does not require any revision of the 1992 Act. The Court raised no objection of a general nature with regard to the provisions of this Act although it concluded that the reasons given for the decision of 3 May 1990 to stop the applicant's access to her child and deprive her of her parental rights were insufficient.

In order to ensure that the practice under the 1992 Act respects the principles emerging from the judgment of the Court, the judgment has been translated into Norwegian and distributed to all child welfare authorities in Norway together with information regarding its consequences for their work. The consequences of the judgment for the social workers had also been the subject of a conference for Chief Administrative Officers held in April 1997. In addition, a comprehensive summary of the judgment in Norwegian has been published in Mennesker og Rettigheter , No. 3/96 pp. 290-294.

In the light of the status of the Convention and of the jurisprudence of the Court in Norwegian law (see Resolution DH (97) 220 in the Botten case) the Government is also of the opinion that the Norwegian courts will not fail to ensure that the practice under the 1992 Act respects the judgment of the Court so that new violations similar to the one found in the present case are avoided.

In view of these considerations the Government considers that Norway has met its obligations under Article 53 of the Convention.