Communicated on 1 December 2015

FIFTH SECTION

Application no. 37283/13 Trude LOBBEN and O thers against Norway lodged on 12 April 2013

STATEMENT OF FACTS

The first applicant is Trude Strand Lobben , born in 1986, the second and third applicants are her children, X and Y, born in 2008 and 2011, respectively, and the fourth and fifth applicants are the first applicant ’ s parents, Sissel Graff Lobben and Leif Lobben . They are all Norwegian nationals living in Norway. They are represented before the Court by Mr M. Reikerås , a counsel working in Bergen.

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

A. Background

In May 2008 the first applicant turned to the Child Care Protection Services ( barneverntjenesten ) because she was pregnant and had a difficult life situation. She did not have a permanent home and was temporarily staying with her parents, the fourth and fifth applicants.

On 1 July 2008 Buskerud Hospital sent a notice to the Child Care Protection Services concerning the unborn child, after the first applicant had visited the hospital when she was pregnant in week 28 applying for a late abortion. The hospital indicated to the Child Care Protection Services that she was in need of guidance and follow-up in regards of motherhood. It also indicated that she needed to stay at a mother/child institution. The Child Care Protection Services opened an investigation with the first applicant ’ s consent. It was decided that she should stay for three months at Vilde M ødrehjem , a parent/child institution, after the child was born so that it would be possible to evaluate her ability to give the child adequate care.

On 25 September 2008 the first applicant gave birth to X, the second applicant. It was unknown to the authorities who X ’ s father was and the first applicant refused to reveal his name. On 29 September 2008 the first applicant and X moved to Vilde M ødrehjem . For the first five days the fourth applicant also stayed with them . The staff soon became concerned about the first applicant ’ s parental abilities and X ’ s development. On 14 October 2008 they asked for an emergency meeting with the Child Care Protection Services because X had lost a lot of weight and the first applicant did not show any understanding of his needs.

On 17 October 2008 the first applicant withdrew her consent to stay at Vilde M ødrehjem and wanted to leave and take X with her. The Child Care Protection Services decided to take X into immediate compulsory public care. In the decision it was stated that Vilde M ødrehjem had had to check on the family every third hour to make sure that X got enough food. Without these controls they were unsure if X would survive. After the placement, the first applicant had weekly visits with X for half an hour each time. At most of the visits the fourth applicant was present.

The first applicant appealed against the decision of the Child Care Protection Services to the County Social Affairs Board ( Fylkesnemnda for barnevern og sosiale saker ) claiming that she and X could live together with her parents. The fourth applicant, her mother, was staying at home and was willing to help take care of X. They were also willing to accept help from the Child Care Protection Services.

On 26 October 2008 the County Social Affairs Board rejected the appeal. It concluded that it was the first applicant who would be responsible for the daily care of X, not the fourth applicant, and that the first applicant was unable to provide the care X needed. Furthermore, the fourth applicant had stayed with the first applicant and X during the first days at Vilde M ødrehjem but had not noticed the first applicant ’ s lack of parental skill even though it had been obvious to the staff.

On 27 October 2008 X was sent to Spedbarnsteamet BUPA , a psychiatric clinic aimed at children, for an evaluation. The team did six different observations between 3 November 2008 and 24 November 2008. They reported their conclusions in a report dated December 2008 which stated that:

“[X] was a child with a significantly delayed development when he was sent to us for evaluation and observations. Today he is functioning as a normal 2 months old baby, and has the possibility of a good normal development. He has, from what can be observed, been a child at high risk. For vulnerable children the lack of response and confirmation, or other interferences in the interaction, can lead to more or less serious psychological and developmental disturbances, if they do not get other corrective relationship experiences. The quality on the earliest interaction between a child and the closest caregiver is therefore of great importance for the psychosocial and cognitive development. [X] bears the mark of good psychosocial and cognitive development now.”

The first applicant appealed against the County Social Affairs Board ’ s decision to Drammen City Court ( tingrett ) which, on 26 January 2009, upheld it in full. In the judgment the court found that X had shown signs of both psychological and physical neglect when he was taken into public care. Moreover, it did not find that the first applicant ’ s abilities to take care of X had improved or that the support of the fourth and fifth applicants would be sufficient to ensure that X was given adequate care.

B. Public care proceedings

Following the judgment by the City Court, the Child Care Protection Services applied to the County Social Affairs Board for a permanent public care order, submitting that the first applicant lacked parental skills. It claimed that when X had stayed at Vilde M ødrehjem together with the first applicant, she had not provided X with his most basic needs. She was unable to give X the care he needed. She lacked cognitive capabilities and was psychologically vulnerable. Her inability could not be remedied with help from the Child Care Protection Services. Her contact rights should also be very limited since X had become very stressed during the visits and they had an overall negative impact on his development.

The first applicant opposed the public care claiming that she had not been given enough help by the Child Care Protection Services. If she had been given proper help, she would have been able to care for X.

On 2 March 2009 the County Social Affairs Board accepted the Child Care Protection Services´ application and X was permanently placed in the foster home where he had already been placed on a temporary basis in October 2008 when he was taken into immediate public care. The Board also decided that contact rights for the first applicant should be limited to six visits per year for two hours each time. The visits should be supervised. The Board concluded, on the basis of the report from Vilde M ødrehjem , that if X moved back to the first applicant there would be serious deficiencies both in the physical and psychological caregiving. The deficiencies could not be remedied by help from the Child Care Protection Services. For these reasons the Board found that it would be in the best interest of X to be placed in public care.

The first applicant appealed against the decision of the County Social Affairs Board claiming that t he Child Care Protection Services had not tried other interventions before taking X into immediate public care and that the decision was based on insufficient evidence.

On 19 August 2009 Drammen City Court overturned the County Social Affair Board ’ s decision and decided that X should be reunited with the first applicant but that there was a need for an acclimatisation period. It noted that there were no negative comments from the hospital where the first applicant had given birth, which were in sharp contrast with the report from Vilde M ødrehjem . Moreover, X had had an infection in his eyes which could have caused him to lose his appetite and become more tired. This had not been taken into account by the Board. For these reasons the Court concluded that it had not been sufficiently substantiated that the first applicant had such deficiencies in her ability to care for X that there should be a public care order issued.

As a consequence of the judgment, the first applicant ’ s visits with X were increased with the goal of reunification. According to the Child Care Protection Services, the visits were characterised by hostility from the first applicant and her parents towards the foster mother. After the visits X reacted strongly, he became worn, upset and unsafe and he changed his sleeping patterns.

The Child Care Protection Services appealed against the District Court ’ s judgment and applied for a suspension of the judgment. It claimed that it was unlikely that the infection could be the reason for X ’ s slow weight gain. Moreover, the first applicant had had visits with X but they had not worked well even though she had been given advice on how to improve the visits. X had had strong reactions after the visits.

On 8 September 2009 the City Court decided to suspend its judgment until the High Court had adjudicated the case.

On 9 October 2009 the Child Care Protection Services decided to engage two experts, psychology expert B.S. and clinic family therapist E.W.A. who submitted their rapport on 20 February 2010.

On 12 October 2009 Borgarting High Court ( lagmannsrett ) granted leave to appeal and decided to uphold the City Court ’ s decision to suspend the judgment.

On 3 March 2010 the court appointed an expert for the High Court, psychologist M.S., who also submitted a report.

On 22 April 2010 the High Court quashed the District Court ’ s judgment and decided that X should be taken into compulsory public care. The court also reduced the first applicant ’ s contact rights to four times per year of two hours each. It found that Vilde M ødrehjem had made a correct evaluation and that it was very unlikely that the evaluation would have been different if X would not have had an infection. It also took the appointed experts ’ reports into account. Thus it was clear that there would be serious deficiencies both in the physical and psychological caregiving if X were to be cared for by the first applicant. Moreover, the court noted that X had been given the most extensive help available, namely the stay at Vilde M ødrehjem . It also found that the visits had not worked well and that it had been clear that the first applicant had not been able to give X the appropriate attention which had affected him in a negative manner.

It is unclear whether the judgment was appealed against.

C. Adoption proceedings

On 18 July 2011 the Child Care Protection Services requested the County Social Affairs Board to deprive the first applicant of her parental responsibility for X and to grant permission to X ’ s foster parents, whom he had stayed with since he was taken into public care, to adopt him. The identity of X ’ s biological father was still unknown to the authorities.

On 29 July 2011 the first applicant applied for a termination of the public care order or, in the alternative, that she should be granted extended contact rights with X.

On 18 October 2011 the first applicant gave birth to Y, the third applicant. She had married the father of Y earlier in the summer. The new family had moved to the municipality of Drammen. When the municipality of Røyken became aware that the first applicant had had a new child, it sent a letter of concern to the municipality of Drammen which started an investigation concerning the first applicant ’ s parental abilities.

On 28, 29 and 30 November 2011 the County Social Affairs Board held an oral hearing at which the first applicant was present together with her legal representative and 21 witnesses were heard.

On 8 December 2011 the County Social Affairs Board decided that the first applicant should be deprived of all parental responsibility for X and that X ’ s foster parents should be allowed to adopt him. The Board found that there was nothing in the case to indicate that the first applicant ’ s parental abilities had improved since the High Court´s judgment of 22 April 2010. Therefore she was still considered unable to give X adequate care. Moreover, during the visits, the first applicant had been unable to focus on X. Instead the visits had been characterised by her very negative attitude towards the foster mother and the Child Care Protection Services. The Board further considered that X was a particularly vulnerable child. It especially noted the following from the conclusions of the appointed expert psychologist M.S.:

“[The first applicant ’ s] cognitive impairment, personality function and lack of mentalising ability make it impossible to have a normal conversation with her about small children ’ s physical and psychological needs. Her evaluation of the consequences of having the child returned to her and what it would demand from her as a parent is very limited and infantile with her own need at the moment, then and there, as the most prominent feature. It is therefore considered that there is a danger of such things (as mentioned above) ahead assuming that the child lives with the mother.”

The Board found the description to be an accurate depiction of the first applicant at that date. One of the decisive circumstances for the Board when making its decision was that X had established such a connection to his foster family that it would result in serious and permanent problems for him if he would be moved. 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 of their own child. Thus, the adoption would be in the best interest of the child. The Board took Article 8 of the Convention into consideration when making its decision.

The first applicant appealed against the judgment, claiming that the Board had made a wrongful evaluation of evidence when deciding that she was unable to give X adequate care. She considered that it would be in X ’ s best interest to move back to her and stressed that her situation had changed drastically. She was now married and had a new child that she was taking care of. She had a good support system in her husband and her extended family. She was also positive to help from the Child Care Protection Services. Moreover, in her view, it would only cause X problems in the short term to be removed from the foster home but would not create long term problems for him. She also claimed that the visits between her and X had worked well.

The Child Care Protection Services opposed the appeal and submitted that the first applicant ’ s ability to care for X had not changed since the High Court ’ s judgment of 22 April 2010. The visits between X and the first applicant had not worked well. She had had outbursts during the visits and had left before the time was up. Afterwards X had reacted negatively. The first applicant and her mother had a very negative attitude towards the Child Care Protection Services. Moreover, X had a good attachment to his foster family and had lived with them for over three years. He was a vulnerable child and he needed a caregiver who was sensitive to his needs. They also noted that the first applicant had exposed X and their story on the Internet, together with pictures of them, which could be harmful for X. It was in the best interest of X to be adopted by the foster family.

On 22 February 2012 Drammen City Court upheld the decision after having held an oral hearing which lasted for three days and where 21 witnesses were heard. The first applicant was present at the oral hearing together with her legal counsel. The court first noted that the first applicant ’ s general situation had improved. She had married in August of 2011, her husband had a permanent job and they had a daughter, Y. It also noted that the Child Care Protection Services in Drammen had an ongoing investigation concerning the mother ’ s ability to care for Y. One of the investigators from the Child Care Protection Services in Drammen had testified at the oral hearing and stated that the Child Care Protection Services had not received any reports of concern other than the one from the municipality of Røyken . They had made observations at the first applicant ’ s home where they had observed many good things but also that the parents might need some help with routines and structure. The court found that this indicated that the Child Care Protection Services in Drammen thought that the parents could give Y adequate care with assistance from the Child Care Protection Services.

However, the court noted that X was a particularly vulnerable child and thus needed a caregiver who was very attentive to his needs. The first applicant did not understand the challenges she would face if X were taken out of the foster home and placed at her home. She did not see X ’ s vulnerability but was only concerned with her claim that X should grow up where he “belonged”. Moreover, she was unable to understand why X had been taken into compulsory public care from the outset. Furthermore, the court noted that during the visits, the first applicant had been unable to put X ’ s needs first and had had a very negative attitude towards the Child Care Protection Services and the foster mother. The negative attitude had gravely affected the visits and it had not improved during the three years that she had had visits with X. It concluded that there was not enough change in the first applicant ’ s ability to care for X for the termination of the public care order. This lack in her ability could not be helped by interventions by the Child Care Protection Service or from her social network. The court noted that X ’ s primary connection was to the foster parents and that he had no psychological connection with his mother. It also observed that the placement would be of a long duration and that an adoption would strengthen his belonging to the foster family and make him feel safer. In a final evaluation the court found that it would be in the best interest of X if he was adopted by the foster parents. It noted that since it had decided that X should be adopted, the court was unable to decide about contact rights for the first applicant since that question would be up to the foster parents to decide on.

The first applicant appealed against the judgment, claiming that the City Court had evaluated the evidence incorrectly when considering her ability to give X necessary care. She also argued that the City Court should have obtained an evaluation by an expert witness concerning her and her husband ’ s ability to provide adequate care. Moreover, she put forward an evaluation made by Drammen municipality dated 21 March 2012.

On 22 August 2012 Borgarting High Court decided not to grant leave to appeal. It stated that the case did not raise any new legal issues which were of importance for the uniform application of the law. As concerned the new evidence the court noted that the evaluation dated 21 March 2012 had been done by, inter alia , the expert who had also been a witness in the City Court and that the document would not change the outcome of the case. Moreover, it observed that the applicant had not asked for an expert witness to be heard in the City Court and she had not given any reasons why it was necessary to appoint an expert before the High Court. Thus there were no reasons for the High Court to grant leave to appeal.

The first applicant appealed against the decision to the Supreme Court ( Høyesterett ) which, on 15 October 2012, refused leave to appeal.

COMPLAINT

The applicants complain under Article 8 of the Convention that the domestic authorities ’ decision to let the foster parents adopt X infringed their right to family life.

QUESTIONS TO THE PARTIES

1. May the fourth and fifth applicants, Sissel Graff Lobben and Leif Lobben , claim to be victims of a violation of the Convention, within the meaning of Article 34?

2. 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 ’ decision to grant the adoption of X to his foster parents?