SECOND SECTION

DECISION

Applications nos. 35858/21 and 38537/21 H.B. and Others against Norway

The European Court of Human Rights (Second Section), sitting on 30 January 2024 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 applications 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 July 2021 by the applicants listed in the appended table (“the applicants”);

the decision taken by the Court of its own motion under Rule 47 § 4 of the Rules of Court not to disclose the applicants’ names;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns a family consisting of a father, a mother and their five children, who were born in 2003, 2005, 2006, 2010 and 2015. The child welfare services, having first been contacted by a kindergarten in 2015, had concerns about the family situation, including with regard to a risk of threats, force and violence being used in the children’s home, and in May 2019 an emergency placement decision was made in respect of all of the children. The four oldest children were subjected to questioning, adapted to their ages and stages of development, by the police. The emergency placement decision was upheld by the County Social Welfare Board on 14 June 2019. The parents were charged with abuse and the use of violence and were acquitted on those charges by the District Court on 5 February 2020.

2. On 19 March 2020 care orders were issued by the Board in respect of all the children except for the eldest. Contact rights were set at four hours six times per year for the two children born in 2005 and 2006 and four hours eight times per year for the children born in 2010 and 2015. The Board noted that more frequent contact with the two youngest children was necessary to maintain the relationship and facilitate possible future reunification with the parents. On review, the District Court upheld those orders on 22 December 2020, noting that the main goal was to reunite the children and the applicants. The District Court increased the applicants’ contact rights to six hours twelve times yearly for all children. It was decided that the child welfare services could supervise the contact sessions if they considered it to be in the children’s best interest.

3. In its assessment, the District Court noted that the children had stated that they frequently had been subjected to violence and threats about violence and that the statements about violence had been given in different settings and to different persons. In this connection, the court noted, without concluding on the applicants’ guilt, that there is a less strict burden of proof in civil cases and that the risk assessment regarding the children had to be based on the civil burden of proof.

4. On 22 March 2021 the High Court refused the parents leave to appeal against the City Court’s judgment. The Supreme Court dismissed an appeal by the parents against the High Court’s decision on 28 April 2021.

5. In application no. 35858/21 the parents stated that they were also applying on behalf of their four children concerned by the child welfare measures. Relying on Articles 8 and 9 of the Convention, they submitted that the care orders and the decision on contact rights taken in respect of the children had been unlawful and disproportionate. In application no. 38537/21 the parents relied on Article 6 § 2 taken alone and together with Article 8, submitting that their right to be presumed innocent had been violated because criminal liability had allegedly been imputed to them in the District Court’s judgment of 22 December 2020. In this connection, they stated that the court had taken into account the alleged parental violence that the four oldest children had described, notwithstanding the applicants’ acquittal in the criminal proceedings.

THE COURT’S ASSESSMENT

6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

7. With regard to application no. 35858/21, the Court does not find it necessary to examine whether any obstacles to the parents’ applying to the Court on the children’s behalf might arise, for the following reasons.

8. The Court finds that the care orders and the decision on contact rights entailed an “interference” with each of the family members’ right to respect for their family life as enshrined in Article 8 § 1 of the Convention. The impugned measures were further in accordance with the law for the purposes of Article 8 § 2, namely with the 1992 Child Welfare Act, which was applicable at the material time. In particular, having considered the applicants’ arguments to the effect that the provision relating to contact rights in the 1992 Child Welfare Act, which was in force at the material time, had been too imprecise with regard to the way in which each contact session had to be conducted, the Court does not find any basis for considering that it might have fallen short of the lawfulness requirement set forth in Article 8 § 2 of the Convention. It also notes that the provision in question was supplemented by regulations. Furthermore, the Court finds that the impugned measures pursued the legitimate aim of protecting the children’s “rights” and their “health” within the meaning of Article 8 § 2. The remaining issue is thus only whether the measures were necessary in a democratic society, as also required by Article 8 § 2.

9. The Court also considers that, in the instant case, the submissions relating to an alleged violation of Article 9 of the Convention in that, given the fact that the family also had roots in Malaysia, the children would be unable to enjoy their Malay culture, religion and language while in foster care, may be examined as an integral part of the complaint concerning their right to respect for their family life as guaranteed by Article 8, interpreted and applied in the light of Article 9, rather than as a separate issue of alleged failures to comply with the rights protected by the latter provision (see, similarly, Abdi Ibrahim v. Norway [GC], no. 15379/16, § 141, 10 December 2021).

10 . The general principles relevant to the necessity test were extensively set out in Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 202 ‑ 13, 10 September 2019) and have since been restated in, inter alia , Abdi Ibrahim (cited above, § 145). The Court also bears in mind that it has recently given judgments in several cases involving the respondent State in which it found a violation of Article 8 of the Convention relating to the justifications provided by the domestic authorities for the establishment of particularly restrictive contact regimes (see, for cases where shortcomings in relation to decisions on contact rights in themselves led to the finding of a violation, K.O. and V.M. v. Norway , no. 64808/16, §§ 67-71, 19 November 2019, and A.L. and Others v. Norway , no. 45889/18, §§ 47-51, 20 January 2022; see also, for cases where similar shortcomings formed important parts of the context in which violations had occurred, Strand Lobben and Others , cited above, §§ 221 and 225; Pedersen and Others v. Norway , no. 39710/15, §§ 67-69, 10 March 2020; Hernehult v. Norway , no. 14652/16, §§ 73-74, 10 March 2020; M.L. v. Norway , no. 64639/16, §§ 92-94, 22 December 2020; and Abdi Ibrahim , cited above, § 152).

11. Turning to whether, in the instant case, relevant and sufficient reasons were provided in respect of the care orders, in so far as they were upheld for the four youngest children, and the decision on contact rights, and whether there were any procedural shortcomings in the course of the proceedings in issue, the Court notes that it transpires from the District Court’s judgment that it considered that the children would be exposed to severe neglect if they were returned to the parents. In its reasoning, the court noted that all children, save for the youngest one, had stated that they had been frequently subjected to violence and threats of violence from their parents. The children’s statements had been given in different settings and to different persons. The Court notes that it transpires from the case that the parents had been acquitted of the charges of violence in criminal proceedings. Nevertheless, the District Court found, based on the children’s statements and the less strict burden of proof in civil proceedings, that the termination of the care order at the relevant time would entail a risk to the children’s well-being. In its judgment, the District Court made a concrete assessment of the situation for each child and found that it was not in the children’s best interest to be returned to the parents at the relevant time. The District Court nonetheless concluded that extensive efforts should be made to improve the circumstances in the home and that, with such efforts, it might be possible to return the children in the not too distant future. It therefore also established a contact rights regime which allowed twelve visits per year and emphasised that the child welfare services had to continuously consider whether the parents should be allowed more extensive contact with the children than their minimum legal entitlement. An individual and concrete explanation was also given as to why supervision was required.

12. As for the decision-making process, the Court observes that the composition of the bench of the District Court included a psychologist and that it gave detailed reasons for its judgment, having conducted an oral hearing which lasted for four days, during which the parents met with counsel, a court-appointed expert in psychology attended three of the days and one of the children had her own lawyer who attended. The children’s opinions had also been obtained, in so far as possible in the light of their ages and stages of development, in the course of the proceedings.

13. In the light of the foregoing, the Court finds that relevant and sufficient reasons were given in respect of the care orders and the decisions on contact rights. It considers that this case is different from those cited above in which violations were found (see paragraph 10). Nor does the Court find any basis for considering that there were procedural shortcomings in the form of a “lack of rigorous assessments” of risks and evidence, as the applicants have alleged. Moreover, the Court observes that the District Court was critical as to whether sufficient assistant measures had been attempted at earlier stages of the child welfare services’ involvement with the family. However, taking note of the District Court’s assessment on that point in conjunction with its instructions as to the need for intensified efforts to help reunify the family from that time onwards, the Court finds that the case before it does not disclose any failure of the domestic authorities to comply with their positive duty to facilitate family reunification.

14. With regard to the submissions to the effect that the child welfare measures had impinged on rights and interests protected by Article 9 of the Convention, the Court notes that these measures were not adopted on any grounds relating to the family’s religious or cultural background. In contrast to the situation in Abdi Ibrahim (cited above, § 161), the Court likewise does not find any indication that the decision on the contact arrangements failed to take due account of the applicants’ interests in enjoying at least some ties to their cultural and religious origins.

15. On the basis of the findings above, the Court finds that the interference with the applicants’ rights under Article 8, interpreted and applied in the light of Article 9, was proportionate to the legitimate aims pursued and thus was “necessary in a democratic society” for the purposes of Article 8 § 2. It concludes that application no. 35858/21 is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must therefore be rejected in accordance with Article 35 § 4.

16. As concerns the allegation that the parents’ right to be presumed innocent, as enshrined in Article 6 § 2 of the Convention, had been violated owing to the fact that the authorities considered that violent acts towards the children had taken place, the Court reiterates that it is not ruled out that there may be a link between criminal proceedings relating to family violence and proceedings relating to child welfare measures that may bring Article 6 § 2 into play (see, for example, O.L. v. Finland (dec.), no. 61110/00, 5 July 2005). Article 6 § 2 may also be applicable where the criminal proceedings proper have terminated in an acquittal and other courts issue decisions voicing the continued existence of suspicion regarding the accused’s innocence or otherwise casting doubt on the correctness of the acquittal (see ibid., with further references). However, in the instant case, the Court finds nothing in the District Court’s judgment indicating that any conditions for criminal liability had been met or applying language capable of casting doubt on whether it had been correct to acquit the parents in the course of the criminal proceedings against them.

17. The Court takes note, moreover, of the High Court’s examination in response to the applicants’ allegations that their right to be presumed innocent had been violated, in which that court observed that the District Court had correctly assessed the case on the basis of the facts in relation to which there was a preponderance of evidence and, furthermore, that the question before the District Court had been based on its assessment of how the situation had been at the time of its judgment, not on what had happened in the past.

18 . In the light of the foregoing, the Court finds that the case does not disclose any appearance of a violation of the applicants’ right to be presumed innocent as enshrined in Article 6 § 2 of the Convention. It does not find, furthermore, that any other conclusion could be reached by viewing that complaint from the angle of Article 8 on the basis of the applicants’ allegation that the child welfare services had proceeded on the basis of an incorrect assessment of the facts in the child welfare proceedings by imputing criminal liability to the parents for the use of violence.

19. It follows from the foregoing that application no. 38537/21 is likewise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must therefore be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 22 February 2024.

Dorothee von Arnim Jovan Ilievski Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of birth Place of residence Nationality

Represented by

1.

35858/21

H.B. and Others v. Norway

05/07/2021

H.B. 1977 S. Malaysian N.K. 1977 S. Malaysian

M.M. 2003 S. Malaysian

M.M. 2006 S. Malaysian

A.M. 2010 H. Malaysian J.M. 2015 H. Malaysian

Cecilie SCHJATVET

2.

38537/21

H.B. and N.K. v. Norway

05/07/2021

H.B. 1977 S. Malaysian N.K. 1977 S. Malaysian

Cecilie SCHJATVET