Judgement 15784/19

Applicant name S.S. AND J.H.
Applicant type Natural person
Number of applicants2
Country Norway
Application no. 15784/19
Date 12/09/2023
Judges Jovan Ilievski, President,
 Lorraine Schembri Orland,
 Diana Sârcu, judges,
Institution Court
Type Judgment
Outcome Art. 8 Violation
ReasonNot Necesary (health; rights)
Type of privacy Relational privacy
Keywords Custody; access child
Facts of the caseThe second applicant was placed in foster care, on an emergency basis at first, four days after his birth in 2013. Ten days later it was decided that the parents should not have any contact with the child. When he was approximately one year old, the child was moved from the emergency foster home to the foster home in which he has since remained. In December 2015 the municipal child welfare services applied to the County Social Welfare Board, seeking the withdrawal of first applicant’s parental responsibilities in respect of the child and the authorisation of his adoption by his foster parents. The Board allowed the application, but its decision was set aside by the District Court. In the District Court’s judgment, no contact rights were granted. On appeal to the High Court, however, the Board’s decision was upheld and an appeal by the first applicant and the child’s father to the Supreme Court was unsuccessful. The applicants complained under Article 8 of the Convention of the decision to withdraw the first applicant’s parental responsibilities in respect of her son, the second applicant, and to authorise his adoption by his foster parents.
AnalysisThe Court quickly establishes that the first applicant can speak for the second applicant, that there were no preliminary issues blocking the admissibility of the application, that there was an interference with their family life, that such was prescribed for by law and was in the interests of the protection of ‘health’ and ‘rights’ of the second applicant.
As to the necessity of the  the Court reiterates in particular that such measures should only be applied in “exceptional circumstances” and could only be justified if they were motivated by an overriding requirement pertaining to the child’s best interests. It is thus incumbent on the Court to carry out a “stricter scrutiny” of whether the circumstances in the instant case were so exceptional that such a measure was justified. On that point, the Supreme Court had emphasised that shortly after the second applicant’s birth it had already become clear that his parents should not provide daily care for him. In addition, before the child’s birth, the child welfare services had received notices of concern pertaining to the first applicant’s mental health, her hygiene and conflict with the second applicant’s father. After the child was born, the services expressed concern about the fundamental shortcomings in daily care, including the first applicant’s lack of awareness regarding the child’s food intake. The boy had never had any contact with his parents and, even if he were not adopted, he would nonetheless continue to live with his foster parents. Court‑appointed expert psychologist emphasised that any children living in foster homes might experience emergency situations on a continual basis, due to the lack of stability and protection, and that the second applicant, on account of his history and psychosocial development, needed more stability than other children. The second applicant had a significant developmental delay both linguistically, socially and cognitively.
Then, the ECtHR starts adopting a more defensive tone, among other stressing that it understands that its approach may systemically differ from the approach followed by domestic childcare services and authorities, which have to decide what to do with the child on the basis of the child’s and the family’s situation at the time at which the decision in question is taken and with an eye primarily on the future. Then, it continues to point out that from the outset, the child welfare measures were taken with the view that the child should grow up in foster care and that the parents should have no contact rights at all. This was in part related to concerns that the parents might remove the child from the foster home and to the foster parents’ concerns in that respect, while, the ECtHR finds, there were not signs that the parents in fact objected to supervision or even police assistance in connection with contact sessions or to the non-disclosure of the address of the foster home; he District Court had also noted that it was not possible to know if parent-child contact would be positive or negative, as it had never been attempted; he  minority of the High Court pointed out shortcomings in the child welfare services’ approach and concluded that there were no particular weighty reasons for adoption; the Supreme Court’s judgment stated that the first applicant’s situation had improved and that she had apparently cooperated well with the child welfare services of another municipality that had withdrawn her parental responsibility in respect of another younger child of hers. Thus, a violation of Article 8 ECHR is found.

Although understandable, it remains problematic that a supranational court is assessing in substance such a particular case on a local level. To be able to adequately judge the situation, it would need to have access to all care providers, professionals and officials. It typically has access to written documents only, while the assessements of the situation of mother, her ability to provide adequate care and the emotional state of the child are typically factors difficult to objectify and put down in written text. Although the Court could assess the procedural aspects of a case, whether a country has an adequate system of judicial review. That seems to be the case with Norway. The ECtHR seems to go one step further, however, and assess in substance whether the authorities chose the right approach. It is questionable whether that should be the fole of a supranational court.
Other Article violation?
Damage awarded a) that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the second applicant;
(b) that the respondent State is to pay to the first applicant, within three months, EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
Documents Judgment