SECOND SECTION

DECISION

Application no. 39661/22 Christina GREFSRUD-HALVORSEN and Jon Anders GREFSRUD ‑ HALVORSEN against Norway

The European Court of Human Rights (Second Section), sitting on 23 May 2023 as a Committee composed of:

Jovan Ilievski , President , Lorraine Schembri Orland, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 39661/22) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 August 2022 by two Norwegian nationals, Ms Christina Grefsrud-Halvorsen and Mr Jon Anders Grefsrud-Halvorsen (“the applicants”), who were born in 1980 and 1983 respectively, live in Tønsberg and were represented by Ms E. Grøndahl, a lawyer practising in Oslo;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application contained a complaint under Article 8 of the Convention relating to a decision not to allow the applicants, who are the foster parents of a child, to participate as parties in proceedings relating to an application by the child’s biological father to have the care order in respect of the child lifted.

2. The applicants are the foster parents of a girl. An emergency placement decision was made in respect of the girl on the day she was born (in 2019) and she has since been placed with the applicants.

3. The girl’s natural father applied to have the care order lifted and the County Social Welfare Board dismissed his application. On appeal, the District Court decided to grant the father’s application and ordered that the girl be returned to him. The municipal child welfare services appealed against the District Court’s judgment to the High Court, and the applicants then applied to join the High Court’s proceedings as parties. That application was dismissed by the High Court.

4 . On 7 April 2022, the Supreme Court upheld the High Court’s decision on appeal from the applicants. It considered that the interests of foster parents were first of all to attend to the foster child’s best interests and to ensure that the child’s situation and needs were adequately elucidated in the decision-making process. Their interests in that regard were sufficiently accommodated by their right to make a statement in the course of the proceedings. Furthermore, the Supreme Court referred to the High Court’s reasoning in which it had been considered that allowing foster parents to act as parties during return proceedings would tend to counter the aim of returning children to their biological parents. Placements in care were, as a matter of principle, temporary, and foster parents had to be prepared to return the foster child to his or her biological family. The Supreme Court also considered that the fact that status as parties to the proceedings would give the foster parents access to the whole case file, including sensitive, personal information about the biological parents, indicated that they should not be given such status.

5. The Supreme Court, moreover, took into account statements made by the Government while drafting legislation in the area, to the effect that automatically giving foster parents party status would make such proceedings more extensive, which could be a burden in particular for the child. Were foster parents given party rights there was also, according to the Supreme Court, a danger of disputes becoming disputes between the biological and the foster parents.

6 . In general, the Supreme Court emphasised that children in foster care needed calm and stability and had to be spared further disputes and conflicts that could arise between their biological and foster parents.

7. Having balanced the above considerations, the Supreme Court concluded that it was legitimate and proportionate that foster parents not be allowed to participate as parties in proceedings concerning the return of a foster child to his or her biological parents.

8. The applicants complained under Article 8 of the Convention of the decision not to allow them to participate as parties in the proceedings concerning the return of their foster child to her biological father. They argued in that context that the Supreme Court’s interpretation and application of domestic law and Article 8 had not had sufficient regard to Article 13. They argued that a rule according to which foster parents could not be party to proceedings on return of a foster child meant that foster parents would not have any effective remedy within the meaning of Article 13 in the event that a substantive violation of their right to respect for their family life should occur in connection with such proceedings.

THE COURT’S ASSESSMENT

9. The Court does not, for the reasons that are set out below, find it necessary to examine in detail whether the decision not to let the applicants participate in the domestic proceedings relating to the return of their foster child as such entailed an “interference” with their right to respect for their family life with the foster child for the purposes of Article 8 § 1 of the Convention (compare, inter alia , Kopf and Liberda v. Austria , no. 1598/06, §§ 35-37, 17 January 2012, with further references). It considers that, even if it did, the decision was in accordance with domestic procedural law, as set out by the Supreme Court, and pursued legitimate aims within the meaning of Article 8 § 2, including the protection of the child’s “health” and her “rights and freedoms”.

10. As to the issue of whether not allowing the applicants to participate in the proceedings as parties was “necessary in a democratic society” within the meaning of Article 8 § 2, the Court reiterates that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 ( Kopf and Liberda , cited above, § 39, and Strand Lobben and Others v. Norway [GC], no. 37283/13, § 212, 10 September 2019). It observes that the Supreme Court examined the matter from the viewpoint that the decision not to allow the applicants to participate in the proceedings as parties interfered with procedural rights of the applicants that were inherent in their right to respect for their family life. However, the Supreme Court, in the Court’s assessment, adduced relevant and sufficient reasons (see paragraphs 4-6 above) to justify the decision not to give the applicants status as parties. The Court takes particular note of the fact that the Supreme Court placed emphasis on how a decision to the contrary would tend to counter the aim of reunification of the biological family, which is in line with the guiding principle set out in the Court’s case-law to the effect that a care order should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit (see, for example, Strand Lobben and Others , cited above, § 208). As pointed out by the Supreme Court by way of its reference to the reasons given by the High Court (see paragraph 4 above), the foregoing may necessarily have consequences with regard to the manner in which a foster family’s right to respect for their family life with the foster child must be attended to. Moreover, the applicants’ interest as foster parents to ensure that the child’s situation and needs were adequately elucidated in the decision-making process were safeguarded by their right to make a statement in the course of the proceedings (see paragraph 4 above). Overall, the Supreme Court carried out a balancing of interests which in Court’s view appears adequate. The Court therefore considers that the decision-making process was fair and afforded due respect to the applicants’ interests safeguarded by Article 8.

11. The applicants have argued as a separate point under Article 8 that, since the Supreme Court ruled that foster parents are as a matter of principle not to be allowed to participate in proceedings on the return of foster children, foster parents will not have any effective remedy within the meaning of Article 13 of the Convention in the event that a substantive violation of their right to respect for their family life should occur in connection with such proceedings, which, in the applicants’ case, were still ongoing at the time that they applied to the Court.

12. The Court observes that the Supreme Court did not expressly respond to this argument relating to the interpretation and application of Article 8 of the Convention in the light of Article 13, which was also presented by the applicants to it, as well as by the representative of the municipal child welfare services.

13. At the same time, the Court notes that the question before the Supreme Court did not in principle concern the potential remedies the applicants would have in the event of a possible future violation of substantive aspects of their right to respect for their family life with their foster child in connection with the proceedings on the biological father’s application to have the child returned to him. The issue before the Supreme Court was whether the applicants were to be allowed to enter into the proceedings as parties, with the corresponding procedural rights that parties would normally have. Regardless of the fact that the applicants advanced the need for an effective remedy as an argument in favour of them being given the status of parties, the existence of a situation involving any violation of their substantive rights flowing from Article 8 of the Convention was hypothetical at the time of the Supreme Court’s decision and the question of remedies could require other assessments than those that were necessary in order to determine the applicants’ application to enter into the proceedings as parties. Against that background, the Court does not consider that the instant application discloses any appearance of a violation of Article 8 of the Convention on grounds connected to the applicants’ arguments relating to the interpretation of that provision in the light of Article 13.

14. In view of all of the above the Court concludes that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must accordingly be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2023.

Dorothee von Arnim Jovan Ilievski Deputy Registrar President