Communicated on 25 April 2016

FIFTH SECTION

Application no. 43701/14 M . L . against Norway lodged on 2 June 2014

STATEMENT OF FACTS

The applicant is a Norwegian national, who was born in 1987 and lives in Oslo. She is represented before the Court by Mr S. Torgrimsby , a lawyer practising in Oslo.

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

The applicant is the mother of two children who are half-brothers. Her older son, A., born in 2008, was taken into permanent public care by the authorities in 2010 and placed at the applicant ’ s parents ’ home. Her younger son, B., was born in February 2012.

On 15 June 2012, after receiving concerns from authorities and a private individual regarding the applicant ’ s lack of ability to take care of B., Fredrikstad Child Care Protection Services ( Barneverntjenesten ) decided on emergency placement of B. On 29 June 2012, the decision was upheld by Ø stfold County Social Affairs Board ( Fylkesnemnda for barnevern og sosiale saker – hereafter “the Board”).

The Child Care Protection Services then applied to the Board for a permanent public care order, requested that B. should be placed in a foster home and that the applicant should be granted supervised contact rights. Concerning the question of where B. should be placed, the Child Care Protection Services essentially stated the following. The applicant ’ s parents had previously been approved as foster home for A. However, the ability to cooperate was necessary for those wanting to be foster homes and since there had been some conflicts between the applicant ’ s mother and the authorities, the applicant ’ s mother lacked that ability. Moreover, noting the challenges involved in being a foster home, the applicant ’ s parents were considered to be relatively old (born in 1955 and 1962, respectively) and it was noted that the applicant ’ s mother had recently been ill. Furthermore, the applicant ’ s mother had not prioritised attending the visits with B. In these circumstances, it would not be in B. ’ s best interest to be placed with his grandparents.

The applicant contested the claims and submitted that, if the public care order was approved, B. should be placed with her parents. In her view, the Child Care Protection Services had not properly evaluated the issue. The claimed lack of ability to cooperate was merely a question of disagreement. Her parents were aware of her difficulties and helped her. They had also been approved as foster home for A., who had positive references from kindergarten. Their age was not in itself of importance when other circumstances were in favour of them as foster home. To place B. with the applicant ’ s parents would be more stable and less stigmatising than an external placement.

On 26 October 2012, the Board approved the Child Care Protection Services ’ action in full. In its reasoning on the issue of choice of foster home, the Board first noted that it was accepted that the applicant ’ s parents had been approved, in general, as foster home and that, in many ways, they were well suited to be foster home for B. It would also allow B. and A. to grow up together. However, due to B. ’ s possible vulnerability and attention deficit, the added burden of a second foster child in combination with the age of the applicant ’ s parents and certain issues concerning their ability to cooperate, the Board concluded that B. should not be placed with them.

The applicant appealed to Fredrikstad District Court ( tingrett ), which held an oral hearing and heard witnesses. The parties maintained their claims and cause of action. A specialist in psychology was appointed as an expert witness and submitted a report in which she did not recommend a placement of B. with the applicant ’ s parents. She did not consider the age of the applicant ’ s parents or the disagreements with the social authorities to be of importance. However, she observed that the applicant ’ s emotional relationships to her sons were very different in that she early on had rejected her motherhood of A., but not that of B. Thus a joint placement of A. and B. would be problematic for the boys. Moreover, if B. were to be placed with the applicant ’ s parents, that situation would notoriously open up for a steady extension of contact between the applicant and B. which would disturb B. in developing a good relationship with the foster home. This last concern was based upon the fact that the applicant ’ s mother clearly had stated that she primarily wished to be a mother for the applicant.

On 22 July 2013, the District Court upheld the Board ’ s decision in full. It shared the assessment made by the Board and by the expert witness and added that A. and B. were young children with different needs and challenges. Moreover, the court stressed that another break up from a primary caretaker could be of serious harm to B.

Upon further appeal by the applicant, which only concerned the placement of B., Borgarting High Court ( lagmannsrett ) and the Supreme Court ( Høyesterett ) refused leave to appeal, the latter on 3 December 2013.

COMPLAINTS

The applicant complains under Article 8 of the Convention that her and her family ’ s right to family life has been infringed through the domestic courts ’ decision to place B. in a foster home outside of his extended biological family, thereby preventing him from growing up with A. and his grandparents. She further complains under Article 6 of the Convention that the domestic authorities ’ failed to sufficiently examine the suitability of her parents as foster home for B.

QUESTION TO THE PARTIES

Having regard to the decision not to place B. with the applicant ’ s parents, has there been a violation of the applicant ’ s right to respect for family life, contrary to Article 8 of the Convention?