Communicated on 22 August 2016

FIFTH SECTION

Application no. 39710/15 Terje PEDERSEN and others against Norway lodged on 6 August 2015

STATEMENT OF FACTS

THE FACTS

The first applicant is Merlita Roxas Pedersen, born in 1969, the second applicant is her husband Terje Pedersen, born in 1962, and the third applicant is their son X, born in 2008. They are Norwegian nationals residing in Norway. They are represented before the Court by Ms V.K. Thiis, a lawyer practicing in Trondheim.

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

The first applicant hails from the Philippines and moved to Norway in 2006 after having met and married the second applicant. In September 2008 the first applicant gave birth to X.

On 5 December 2008, after receiving notice from a maternity clinic and the first applicant ’ s physician indicating that both the first and second applicants suffered from mental illness and were unable to take care of X, the Vestnes Child Care Protection Services ( Barneverntjenesten) decided on emergency placement of X. The first applicant was treated at a psychiatric hospital during two weeks and her condition was perceived as a transient postpartum psychosis. It was estimated that the first applicant was not fit to take care of X when she left the psychiatric hospital, but as her mental condition was temporary, she would likely subsequently regain her parental ability. The second applicant ’ s mental problems were of a more permanent nature, suffering from, inter alia , anxiety and depression.

On 6 January 2009 the Child Care Protection Services decided, with the consent of the first and second applicants, that the emergency placement of X should continue. The first applicant and X met up to three times a week and, in April 2009, the first applicant and X moved to a parent/child center to evaluate the first applicant ’ s parental ability and potential for improvement, as well as X ’ s development and the family ’ s need for help. Within a week the center sent a notice to the Child Care Protection Services indicating that X was not properly cared for and that the first applicant was not receptive to the parental guidance provided by the center. After about a month ’ s stay, the center concluded that the stay was not showing results and decided to terminate it.

On 12 May 2009, the Child Care Protection Services decided again on emergency placement of X due to his parents ’ lack of parental ability. The second applicant had at that time again been committed to a psychiatric center.

Upon appeal by the first and second applicants, the decision was upheld by Møre og Romsdal County Social Affairs Board ( Fylkesnemnda for barnevern og sosiale saker – hereafter “the Board”).

Subsequently, the Child Care Protection Services applied to the Board for a permanent public care order, submitting that the first and second applicants lacked parental ability and that the public care would probably last until X turned 18.

On 23 October 2009, the Board granted the application and X was permanently placed in the foster home where he was already staying. The Board also decided that contact rights for the first and second applicants should be limited to two visits per year for two hours each time.

On 9 March 2010, upon appeal by the first and second applicants, the Romsdal City Court ( tingrett ) upheld the Board ’ s decision in full. The judgment was not appealed against.

In 2012 the first and second applicants applied to the Board for a termination of the permanent public care order. The Child Care Protection Services disputed the application and requested the Board to deprive the first and second applicants of their parental responsibility of X, but to grant them contact rights, and to grant permission to X ’ s foster parents, whom he had stayed with since December 2008, to adopt him. The Board held an oral hearing at which the first and second applicants were present with their lawyers and witnesses testified.

On 8 June 2012, the Board decided to deprive the first and second applicants of all parental responsibility of X, to grant X ’ s foster parents permission to adopt him and granted the first and second applicants contact rights, two visits per year for four hours each. The Board found that X had integrated into the foster home to such an extent that to terminate the placement would cause him serious problems. He had developed very well in the foster home but was a vulnerable child in a critical stage of his development and still in great need of continued stability. The Board noted that the first applicant had recovered from her previous mental health issues, but found that the first and second applicants ’ parental abilities had not improved since the last evaluation, made by the City Court in 2010. It therefore concluded that the placement of X was a long-term placement, that the foster parents were his main caregivers and the ones he thought of as his parents. The foster parents were considered suitable and wanted to take care of X as their own child. Thus, the adoption would be in the best interest of the child. However, the Board also found that granting contact rights was in X ’ s best interest because it would enable him to maintain knowledge of the first and second applicants which would be beneficial to him when developing his identity. In reaching its decision, the Board took Article 8 of the Convention into consideration.

The first and second applicants appealed to the City Court, consisting of a judge supplemented by an expert member and a lay judge, which on 19 June 2013, upheld the decision after having held an oral hearing. The first and second applicants ’ contact rights were reduced to two visits per year for two hours each. A court appointed expert in psychology found that X lacked substantial relationships with his biological parents but had integrated well into the foster family. The expert furthermore held that a transfer back to the first and second applicants ran the risk of inflicting real and severe harm upon X, in part due to their lack of sufficient parental skills. The court shared the Board ’ s reasoning, which also concurred with the opinions of the court appointed expert.

The first and second applicants appealed to the Frostating High Court, consisting of three judges supplemented by an expert member and a lay judge, ( lagmannsrett ) which, on 20 September 2013, granted leave to appeal. It held an oral hearing and appointed an expert in psychology since the mandate of the expert before the City Court had not included an evaluation of the parental abilities of the first and second applicants. The expert found that the first and second applicants did not lack sufficient parental skills but pointed out as a challenge that, because of X ’ s deep integration into the foster family, it would be impossible to transfer him without negatively affecting his development. Furthermore, the expert noted that the first and second applicants had not been given sufficient opportunity to fully demonstrate their parental abilities and, due to the very limited contact rights, they had not been given the opportunity to develop those skills in full.

On 19 June 2014, the High Court partly reversed the City Court ’ s judgment in that it refused to deprive the first and second applicants of their parental responsibility of X and refused to grant X ’ s foster parents permission to adopt X. While upholding the permanent care order, it further increased the first and second applicants ’ contact rights to at least four times a year for three hours each time. The High Court found that the first and second applicants at present had parental abilities but, since X had developed such strong ties to his foster parents it would cause him serious problems if the permanent care order was terminated. On the issue whether it was in X ’ s best interest to be adopted or to continue being a foster child, the High Court noted that the argument in favour of adoption was increased stability, but found that there were no indications that the foster parents would not continue to take care of X if the request for adoption was not granted. The present situation worked well for X, who had no knowledge of or opinion on the issue of adoption. It concluded that it would be inappropriate to sever X ’ s ties to his parents and to his Philippine origin, especially since there was no basis for questioning his parents ’ parental abilities and it would be beneficial for X to be connected to his biological roots. The High Court found that the first and second applicants ’ contact rights should be more extensive than previously decided.

The Child Care Protection Services appealed to the Supreme Court ( Høyesterett ) which, on 19 June 2014, granted leave to appeal.

On 30 January 2015, the Supreme Court quashed the judgment of the High Court and upheld the judgment of the City Court. The Supreme Court noted that the first and second applicants and X had been socialising in a positive manner during some – but not all – of the visits, and found that X had developed such strong ties to his foster parents that a move would cause him serious problems. On the issue of adoption, the Supreme Court noted that this was a far-reaching measure for the parents as well as for the child which, citing the Court ’ s judgment in Aune v. Norway (no. 52502/07 , 28 October 2010) should only be used to fulfill an overriding requirement pertaining to the child ’ s best interests. Furthermore, it noted that in 2010 the Norwegian law had been amended so that the biological parents and the child could be granted contact rights when the child had been adopted. This rule was thought to afford the child the stability of adoption and also the possibility to stay connected to his or her origin. It further noted that the Court, in Aune v. Norway , had emphasised the possibility of contact rights when assessing whether authorising adoption by foster parents amounted to an unjustified interference with the right to respect for family life under Article 8 of the Convention. The Supreme Court found that it was in X ’ s best interest to grant his foster parents the right to adopt him, while at the same time grant the first and second applicants contact rights with X to enable him to maintain ties to his Philippine origins.

COMPLAINTS

The applicants complains under Article 8 of the Convention that their right to respect for their family life has been infringed through the domestic authorities ’ decisions to deprive the first and second applicants of their parental responsibility of X, to allow the adoption of X and to restrict the applicants ’ contact rights. They further allege that the domestic authorities failed to try to reunite the family and that the domestic procedure was unfair since they were not sufficiently involved in the process .

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention, through the authorities ’ decisions to deprive the first and second applicants of their parental responsibility of X, allow his adoption by his foster parents and grant only limited contact rights for the biological parents with X following the adoption?