CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 17383/90                       by A.J.                       against Norway         The European Commission of Human Rights (Second Chamber) sitting in private on 13 October 1993, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                    Mr.   K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 October 1990 by A.J. against Norway and registered on 31 October 1990 under file No. 17383/90;         Having regard to the observations submitted by the respondent Government on 26 January 1993 and the observations in reply submitted by the applicant on 17 March and 26 March 1993;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant is a Norwegian citizen, born in 1960. She resides at Nørreballe, Denmark. Before the Commission she is represented by Mrs. Signe Moland, a lawyer practising in Oslo.   A.     The particular facts of the case         The applicant was born at Laksevåg near Bergen, Norway. She left the parental home when she was sixteen. In 1977, when she was seventeen years old, she gave birth to her son, C, and the following years she and C became dependent on assistance from the social authorities. On many occasions the social authorities assisted the applicant in the upbringing of C but nevertheless considerable problems as well as friction between the social authorities and the applicant arose. The situation culminated in November 1989 when C, who was then twelve years old, was taken into care pursuant to Section 11 of the Child Welfare Act (Barnevernloven) as the circumstances of the case disclosed a danger to his health and development. C subsequently received treatment at the children's psychiatric department at Haugeland hospital.         At that moment in time the applicant was pregnant and following the implementation of the care order she left Bergen for Oslo and was accommodated in a crisis centre. Due to her pregnancy the applicant was referred to Ullevål hospital in Oslo. The doctors there considered her physical and mental state of health to be very poor. On 7 December 1989 the applicant gave birth to her daughter, S. Due to the applicant's difficult situation and the problems which had arisen with the upbringing of C, the social authorities were contacted. A meeting took place on 8 December 1989 between the applicant and her counsel and the social authorities during which the applicant's and S's situation was discussed. Following this the chairman of the Client and Patient Committee of Røa, section 24 (klient- og pasientutvalget i bydel 24, Røa), hereinafter the CPC, decided on 13 December 1989 as an interim measure to take S into care pursuant to Section 11 of the Child Welfare Act. Because of the applicant's physical and mental state of health she was considered incapable of taking care of S, a view which was based on information from the Ullevål hospital and from the social authorities in Bergen as well as on the outcome of the meeting held on 8 December 1989. The applicant did not lodge any appeal against this interim measure. On 19 December 1989 S was placed in a children's home and the applicant was allowed to visit her twice a week. The applicant did not challenge the arrangement concerning her access rights at that moment in time.         Following this interim measure the question of care was brought before the CPC which on 29 December 1989 appointed an expert with the mandate of evaluating the applicant's capability of taking care of S. The expert opinion was submitted on 13 February 1990. It concluded as follows :   (translation)         "Faced with outside pressure and situations she considers she       cannot handle, (the applicant) reacts, both according to the       documents in the file, the other information and also according       to herself, with depression, fear and confusion. Compared with       how she has been described by inter alia Ullevål hospital I       consider her to be functioning much better today. I assume that       this is due to the fact that her situation is easier since she       has received considerable human support, inter alia from her       counsel. Her reactions are, however, unstable and very much       dependent on outer circumstances.         (The applicant) has since her youth periodically used       intoxicating substances. However, this has not developed into an       abuse although she has not been willing to accept control or       treatment. In respect of the problems this case raises, however,       her use of such substances is, as (I) see it, not of decisive       importance.         If (the applicant) were to regain the care of the child (the       children) the answer to the question whether she is in need of       treatment is definitely yes. (Her) destructive acts vis-à-vis       (her son, C) ... are in principle due to her emotional problems.       The problematic aspect in this connection is the fact that (the       applicant) does not herself see this link and therefore neither       wants treatment herself nor for (C), at least not as suggested       by the authorities ... .       ...       ... Having regard to (the applicant's) history in respect of       taking care of her child and due to her lack of knowledge       of/denial of her own faults vis-à-vis her own and (C's) problems       I regret that, as the expert in this case, I can hardly argue in       favour of the positive hope as regards her future capabilities       of taking care of her children, although she undoubtedly loves       them and is attached to them. In addition to these points (I)       must add that (the applicant) today expects a future as a mother       on her own in Oslo where she lacks support from a social       environment.         The child in this case (S) is in a period of its life where the       attachment to hopefully stable persons ought to develop. It is       of decisive importance for her personal development that she now       gets the opportunity to attach herself to persons whom she may       consider through her adolescence as stable and secure parents."         In addition to the above appointed expert the applicant herself engaged another expert who submitted her opinion on 17 April 1990. It concluded as follows :   (translation)         "... I cannot find that there are sufficient reasons for taking       away (the applicant's) custody rights over her children (C) and       (S).         In my view (the applicant) shows responsibility when it comes to       considering the children's adolescence - and she is also a person       who may learn from the mistakes she has made.         It is, however, clear that (the applicant) will need certain       practical assistance in the future. It is recommendable that both       she and (C) receive therapy in order to manage the emotional gaps       from the bad years - and I would consider it reasonable that the       public authorities cover this. Furthermore, (the applicant) ought       to receive support in order for her to get an education."           On 2 May 1990 the CPC examined the question of care. The meeting was chaired by a judge from the Oslo City Court. The applicant was assisted by counsel and called three witnesses. The social authorities, which had submitted their report of 30 March 1990 to the CPC, called one witness. The appointed expert was heard, but not the expert engaged by the applicant herself. Both expert opinions were available to the CPC.         On the basis of the information and evidence submitted the CPC decided by four votes to two to take S into care, to deprive the applicant of her parental rights, to place S in a foster home with a view to adoption, to refuse access as from the moment S was placed in the foster home and to keep the address secret. In its decision the CPC stated :   (translation)         "With reference to the reports which have been submitted and what       has been submitted during this meeting the majority ... finds       that (the applicant) has very little chance of acting       satisfactorily in taking care of her daughter. The majority       stresses that (the applicant) has been the sole custody holder       for her son, born in 1977. This task she has not managed and the       social authorities have taken this child into care. Since 1977       (the applicant) has received special assistance and, since her       son was ten years of age, she has lived of social security       benefits. She has only worked for short periods of time. she has       not lived together with the fathers of her two children but has       lived for several years with another man who ill-treated her and       her son, both physically and mentally. He is now in prison,       serving a sentence for narcotics offences. She has herself used       narcotics and alcohol and has had problems therefrom. It is       unclear how big a problem this has been, but the CPC assumes that       she has no problems for the time being. It is not quite clear,       however, whether the problem has been solved also for the future.         (The applicant) maintains now that she has broken off with her       former friend and her previous life. She has moved to Oslo and       now appears to have another basis than the one in Bergen. She has       certain social contacts but these are contacts stemming from the       present situation which cannot be of decisive importance. She has       vague plans for the future although she submits a wish to get an       education.         However, the majority is of the opinion that the decisive aspects       in this case must be that (the applicant), according to the       appointed expert, has big and unsolved mental problems which       burden her social function and her ability to take care (of       children). Despite the fact that her son has had considerable       mental problems she has not been able to cooperate with the       authorities and has not understood the necessity of giving his       needs priority over her own. She has not been able to understand       that the boy needed help and has not been willing to accept       assistance either. The majority fears that this attitude may lead       to her daughter's needs not being met either if she remains with       (the applicant). The majority finds that the daughter will live       in such conditions that the requirements of section 16(a) of the       Child Welfare Act are fulfilled.             In connection with the taking of her son into care a number of       measures have been tried, and the majority therefore finds that       measures under section 18 would be without effect. The       requirements for care under section 19 are accordingly fulfilled.       The majority finds as well that the requirements pursuant to       section 20 of the Child Welfare Act are fulfilled. (The       applicant) is not particularly motivated for treatment and there       is little reason to believe that this will change. The majority       accordingly finds that it would be best for the child to be       placed in a foster home with a view to adoption. The period to       come is the basic years for the child where it is best that the       child may rest assured that it will not be moved. It is of       decisive importance for the girl that she can now be attached to       stable persons whom she may consider as being stable and secure       parents in her adolescence.         This is of decisive importance for the development of her       personality. Therefore she ought not to be exposed to a       terminable foster home contract. She also ought to have few and       close persons to relate to and therefore ought to remain at a       secret address pursuant to section 19 of the Child Welfare Act,       so that (the applicant) no longer has access to her daughter when       she is placed with foster parents."         As indicated above the applicant's son, C, was taken into care in November 1989. On 4 May 1990 he ran away from the institution where he was living in Bergen and moved to the applicant in Oslo. Following the birth of her daughter the applicant had moved to an apartment in Oslo. As C did not want to return to Bergen and as the applicant found that the social authorities there did not do enough to help him, she decided to let C stay in Oslo. The applicant managed to get him admitted to a school there and she contacted a psychiatrist for support. Following an evaluation of these circumstances the social authorities in Bergen decided not to intervene and the care order was lifted on 19 June 1990. This decision was subsequently confirmed by the Hordaland County Governor (Fylkesmannen) on 13 March 1991. C has lived with the applicant since May 1990.         On 25 May 1990 counsel for the applicant received the minutes from the meeting of 2 May 1990 during which the CPC decided to take the applicant's daughter, S, into care. On 28 May 1990 the applicant lodged an appeal against the decisions taken with the County Governor in so far as they concerned the care order and the deprivation of parental rights. She furthermore requested the County Governor to give the appeal suspensive effect as far as the access rights were concerned as access to S would otherwise be terminated as soon as S was placed in a foster home.         The applicant submitted that continuing access was of decisive importance in order to maintain contact between mother and child during the appeal proceedings. On 31 July 1990 the County Governor decided not to give the appeal suspensive effect. In the decision he stated inter alia :   (translation)         "In accordance with section 42 of the Public Administration Act       (Forvaltningsloven) the County Governor may decide that the       implementation of a decision shall be suspended pending the       outcome of the appeal. The starting point in the Child Welfare       Act is that a decision is implemented immediately.           When examining whether suspensive effect shall be granted the       child's interests and the risk it runs in such circumstances       shall be taken into consideration.         The County Governor finds on the basis of the documents in the       file ... that the girl's interests are best taken care of in that       the decision of (2) May 1990 concerning termination of access       between mother and child is implemented as from the moment the       child is placed in the foster home.         With reference to section 42 of the Public Administration Act the       County Governor decides that the decision on access of (2) May       1990 is maintained pending the outcome of the appeal to the       effect that the access between mother and child is terminated       when the child is transferred to the foster home. The request for       giving the appeal suspensive effect is accordingly rejected."         The applicant's daughter, S, was placed with foster parents on 30 May 1990. The applicant has not had access to or seen her daughter since.         Despite the above decision the applicant pursued her appeal. As she was informed that her appeal to the County Governor of 28 May 1990 would be pending four to five months she instituted proceedings in the Oslo City Court (byretten) requesting the Court to repeal the CPC's decisions of 2 May 1990. She maintained inter alia that it was decisive that the case was examined quickly due to the lack of access to her daughter. On 24 October 1990 the City Court dismissed (avvise) the case as such cases could only be instituted subsequent to a decision in the matter by the County Governor. On 17 January 1991 the High Court (Lagmannsretten) rejected the appeal since the County Governor had in the meantime decided the case (see below) and there was therefore no reason to deal with the appeal. A further appeal to the Supreme Court (Høyesterett) was rejected on 7 March 1991.         As indicated above the County Governor for Oslo and Akershus decided in the case on 9 November 1990. The CPC's decisions concerning care and parental rights were upheld. In the decision the County Governor stated inter alia :   (translation)         "The County Governor considers on the basis of (what he has       established) and the case-file that (the applicant's) situation       in life, her unstable mental situation and her lack of capacity       to evaluate both her own and her son's situation might damage       (her daughter's) development and physical/mental health if she       would have stayed in her mother's care. The requirements of       section 16 of the Child Welfare Act would accordingly appear to       be fulfilled.         As regards preventive measures pursuant to section 18 of the       Child Welfare Act, the considerable number of offers from the       Bergen social authorities show that (the applicant) has managed       only to a limited extent to cooperate/use the offers she has       received. From the talks with the County Governor, the report       from the Aline Child Care Centre and the expert's evaluations it       appears that (the applicant) has very little knowledge of and       understanding for her own and her son's need for help. The County       Governor considers that (the applicant) will not be able to       cooperate with the authorities on their conditions as far as       preventive measures for the benefit of the child are concerned.       Preventive measures would in our opinion, and with reference to       the above, be without effect in this case, cf. section 18 of the       Child Welfare Act.       ...       Following the conversation with the applicant the County Governor       considers (the applicant) to be a very sympathetic and well-       intentioned person. She has an appealing behaviour and manners       which lead to the wish of wanting to return friendliness with       friendliness. However, we must state that we consider that (the       applicant) lacks the necessary understanding as regards whether       problems could appear upon a possible return (of S). (The       applicant) did not show any understanding at all as regards the       child's feelings and was unable to separate her own and the       child's needs. In respect of the problems vis-à-vis her son and       the planned marriage (the applicant) did not manage to see that       various adjustment difficulties would occur. (The applicant)       considered her son not to be in need of treatment despite the       fact that psychologist (LV) has applied for his admission to Nic.       Waal's Institute for a possible evaluation/treatment.         Having regard to the above the County Governor finds that the       decision of 2 May 1990 to take (the applicant's daughter) into       care is in accordance with section 19 of the child Welfare Act,       and correct.       ...       As regards the deprivation of parental rights the County Governor       would state as follows :         Section 20 of the Child Welfare Act permits a deprivation of the       parental rights. From the Supreme Court judgment (Rt. 1982       p. 1687) it appears that no specific requirements prevent the use       of section 20 except that care must have been ordered pursuant       to section 19. The child's interests from a general point of view       must be the decisive factor. This means that it is not a       requirement that for example the parents have unlawfully       disturbed the care situation or that the contact between the       child and its parents must be considered to be harmful. If a       general evaluation shows that it is in the best interests of the       child to take away the parental rights in order to prepare for       an adoption, section 20 of the Child Welfare Act permits this.         (The applicant's) prolonged mental problems weigh in favour of       applying section 20. In continuing reports she is described as       unstable, depressive. During her stay at Ullevål hospital concern       was expressed that she could hurt herself or develop a psychosis.       (The applicant) has previously meditated suicide. (The applicant)       is according to the expert in need of treatment. The expert       opinion stresses (the applicant's) lack of knowledge of her own       and her son's problems; her ability to take care of her children       has been put in question. Having regard to her lack of insight       her accessibility to treatment is considered poor. Having regard       to the above the County Governor finds it hardly realistic to       expect results of importance in a foreseeable future. Since the       stay at Aline's Child Care Centre the girl has been in a process       of development which is adequate and good. She has already       attached herself to her foster parents and feels at ease there.       A separation from the foster parents would lead to emotional       problems for the girl and it is to be expected that the good and       normal development which she has today could be considerably       disturbed. According to the County Governor's assessment the girl       has all possibilities for an adequate normal development with       good mental progress on the condition that she is allowed to       remain with the foster parents.         The County Governor finds that the best situation for the girl       would be that she remains with the foster parents with a view to       adoption, cf. section 17, second sentence."         On 13 November 1990 the applicant instituted proceedings in the Oslo City Court under Chapter 33 of the Civil Procedure Act. She maintained that the care order should be lifted and her daughter reunited with her. In the alternative she maintained that her parental rights should be restored.         On 20 December 1990 the defendant State represented by the Child and Family Department (Staten v/Barne- og familiedepartementet) submitted their observations in reply.         In consultation with the parties the City Court appointed, on 1 February 1991, two experts who were asked to evaluate the applicant's ability to take care of her daughter and the consequences of revoking the care order and/or restoring the applicant's parental rights. The experts were requested to submit their opinions by 15 March 1991, which they did.         On 8 February 1991 the parties were informed that the hearing of the case would commence on 2 April 1991.         The Oslo City Court examined the case from 2 to 5 April 1991. The applicant, represented by counsel, was heard as well as a representative of the defendant Child and Family Department. Furthermore eleven witnesses and the two appointed experts were heard.         On the basis of the evidence so obtained the City Court upheld the care order as well as the decision to deprive the applicant of her parental rights. In its judgment of 16 April 1991 the Court stated :   (translation)         "The legal starting point according to the Child Welfare       Act is that a child shall be with its natural parents. The       interests of the child may, however, lead to a deviation       from this main rule since it cannot be interpreted in a way       which would subject the child to considerable harm.         When examining a measure under the Child Welfare Act the       starting point is that the courts must rely on the       circumstances as they are when passing judgment. The       possibly negative aspects for the child in respect of a       return from the foster parents to the natural parents must       be taken into consideration. Another basis must be that the       child care committee and the County Governor may legally       maintain a decision to take the child into care even if the       circumstances which were the basis for the decision later       have changed to such an extent that the requirements for       measures pursuant to the Child Welfare Act are no longer at       hand.         After an evaluation of the evidence the Court finds that       such general circumstances are at hand which would allow       the applicant today to give her daughter, born on       7 December 1989, an acceptable upbringing. There has in       this respect been an improvement in the situation since the       child care authorities took over the care of the daughter.       She now appears to be well established in Oslo together       with the father of her oldest child who also lives with       her. It appears quite clear that the applicant is much       concerned with the child who has been taken away from her.       There can hardly be any doubt that it is her intention to       arrange things, as far as she is able, in order to take       care of the child in the best possible way if it is       returned to her. When the factual circumstances are such       the Court must evaluate whether there is a real danger that       the child will be subjected to harm if it is returned   from       the foster parents to her natural mother.         We have in this case a situation where the care was taken       away from the mother shortly after birth. The mother has       had very little contact with the child since and in respect       of the child the natural mother is now a stranger.         The experts appointed by the Court are both in agreement       that the child will be in a crisis in case of a possible       return. Psychologist S states about this in the expert       opinion:              'She is today in the middle of an identity phase which            is dependent on secure conditions and stable emotional            continuity in order for her to develop without            complications. On a short term basis it is clear that            the child will react with sorrow and emotion if she            should now be removed from her foster home. In the            long run it is likely that if she is moved during this            period of her development she will carry with her into            her life an experience of insecurity towards other            persons, including those who represent close and dear            relations.'         The experts stress that a return in these circumstances       entails a particular risk. This is so because the child       already twice in her short life has experienced a removal       from her natural mother, just after birth and then at the       age of seven months when she was moved from the child care       home to her present foster parents. She is therefore       particularly sensitive to new changes.         The child now lives under secure and stimulating conditions       with her foster family and as the situation appeared to the       Court it is considered that the foster parents can give her       a safer upbringing than she would receive from her natural       mother. Furthermore, the Court considers that there is a       real danger that the mother will not be able to handle a       return situation with a child in a crisis in an adequate       and relevant way. The mother's history and previous contact       with the public support apparatus indicates that when she,       in such a pressed and threatening situation, will need help       from the public authorities, she will defend herself with       fear and aggressiveness. In particular psychologist R       refers to this. During his oral explanations in Court he       has referred to his written expert opinion but has also in       his oral explanations submitted further details concerning       the mother's personality. He is of the opinion that the       mother makes a protective identification. In this lies that       her world is separated in two, in friends and enemies and       that she shows towards those whom she recognises as friends       a secure and nice side of herself whereas she reacts       towards those whom she considers to be against her with       deep suspicion, fear and aggression. Psychologist R is of       the opinion that the mother in such a situation will       consider the public health authorities to be against her       and will meet them with a corresponding negative attitude.       This will place further burdens on the child and harm her       permanently in the form of a split character.         The expert witnesses which the mother has presented have       all had a very good impression of her. This goes for Doctor       T, psychologist L, and psychologist RL. A common element       for these persons is, however, that none of them have had       a patient doctor relationship with the applicant. Those who       have been appointed by the social authorities and the       Court, psychologist KR, psychologist S and psychologist R,       all experience the mother as more complex. The Court       considers that the appointed experts, on the basis of their       mandate and the contact with the applicant and others, have       had the best background to evaluate her as a person. The       Court has therefore considerable hesitations about       deviating from the expert evaluation they have submitted.       The Court has examined the experts' evaluation in the light       of what has otherwise been submitted in the case and not       least in the light of the basic principles of the Act as to       when a lifting of the care order should take place.         The Court finds that the experts have done a very thorough       work. The conclusions are clear and appear well founded.       Their statements confirm and elaborate the overall       impression that the Court has of the case. The Court finds,       therefore, that after considering the case as a whole it       will rely on the experts' views as a basis for its       decision. In the opinion of the Court there is nothing in       the case which gives reason to deviate from the experts'       evaluation.         On the basis of the above the Court finds that the child,       because of the reactions which she may be expected to       develop if her environment is changed, would place a       particularly heavy burden on the mother as regards her       care. From what is known about her mother today and her       history it is unlikely that she will be able to cooperate       with the social assistance provided by society without       friction. A general and concrete evaluation has accordingly       made the Court conclude that the County Governor's, and       thus also the child care authorities', decision to take the       child into care should be maintained.         The next question is whether the decision should be limited       only to covering the taking into care and not the parental       rights as well pursuant to the Child Welfare Act, section       20. In this respect the Court points out that it is clear       that section   20 has been applied with a view to adoption.       The foster parents wish to adopt the child and according to       the available information the Court assumes that an       adoption will be the result unless the decision is limited       only to concern the taking into care.         The Court finds that in order to be able to use the Child       Welfare Act, section 20, it must in all circumstances be       required that this is necessary in order to secure a proper       care situation for the child. What is required will depend       on the aim of depriving the parents of the responsibility,       and the situation in general. If the aim is to free the       child for adoption very weighty considerations must be       required. Only in very special circumstances can the Child       Welfare Act, section 20, be used in order to proceed with       an adoption. It must be a condition that the parents will       be unable to give the child the appropriate care and that       this would be a permanent situation. When the parental       rights are taken over with a view to adoption the question       arises whether the child and the natural parents should be       prevented definitively from contact with each other with       the consequences as regards reunification which follow from       this.         One of the requirements which in the opinion of the Court       must be fulfilled for the parental rights to be transferred       with a view to adoption is that it is obvious that the       child within a foreseeable future cannot be reunited with       the parents. In the present case both the appointed experts       have recommended to the Court that the placement in the       foster home be made permanent. One of the appointed       experts, psychologist R, states in this respect:              `When considering this question in the present case we            have, in addition to the permanent general advantage            for the child of adoption in such cases, concrete and            real reasons which speak in favour of adoption.              The applicant's problems are in my view old and in            addition well established in her total character. They            can be documented back to 1977 and have been            relatively constantly present during the whole of her            adult life. It follows from this that it is unlikely            that she will solve them in a foreseeable future and            that the situation therefore has a certain permanent            character.                In addition there is every probability that the            applicant's access to the foster home will destroy the            home's security and make it unfit for being a foster            home for the child. This must be seen in the light of            the crusade the applicant over the last years has led            against the child care authorities and that she has            said in a straightforward manner that her aim is to            get her daughter back. When she earlier on, as well,            has hidden her son from the child care authorities in            Bergen and has been supported in this by her lawyers            in Oslo this will on the whole give very little reason            for optimism in respect of her future cooperation with            the foster home.              I have therefore reached the conclusion that it would            be best for the daughter to remain in the foster home            and that permission is granted to adopt her so that            the foster parents also get the parental rights.              With reference to my mandate my conclusion will            accordingly be:              A.     If the child is reunited with her natural mother            there is a considerable danger that the child will not            recover from her separation crisis which then will            harm her permanently. There is also an objective            reason to doubt the mother's capability of securing            for the daughter the necessary medical and            psychological assistance which the child will need.            For these reasons I cannot recommend the Court to            reunite the child