CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.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. 29821/96                       by T.C.                       against Norway           The European Commission of Human Rights (Second Chamber) sitting in private on 20 May 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, 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 15 September 1995 by T.C. against Norway and registered on 16 January 1996 under file No. 29821/96;         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 applicant is a Norwegian citizen, born in 1968 and resident at K. Before the Commission she is represented by Mr Bent Endresen, a lawyer in Stavanger.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 15 February 1992 the applicant gave birth to a daughter, T. The paternity remained unclear and the applicant enjoyed the   parental rights alone. On 9 June 1992 T was provisionally placed in public care in a hospital for young children pursuant to section 16 a of the 1993 Child Welfare Act (barnevernloven), apparently having regard to the applicant's drug abuse. The applicant visited T twice in the hospital but then apparently broke off contact with her.         On 2 September 1992 the Client and Patient Committee (klient- og pasientutvalget) of a Social Welfare Centre in a bigger Norwegian city confirmed the placement order pursuant to section 19 of the 1953 Act. T was placed in a foster home with a view to being adopted and the address was ordered to be kept secret from the applicant. The applicant was also deprived of her parental and access rights pursuant to sections 19 and 20 of the 1953 Act.         Before the Client and Patient Committee the applicant, assisted by counsel, had consented to T's placement in public care in a foster home with a secret address as well as to an initial prohibition of access. The applicant could also accept a deprivation of parental rights and putting T up for adoption, on condition that the contact between T and her maternal grandparents would be maintained.         The Client and Patient Committee also heard the applicant's mother, social welfare officials, a psychologist as well as a physician of the young children's hospital and the manager apparently of the rehabilitation centre for drug addicts where the applicant was receiving treatment.         In its decision the Client and Patient Committee took note, inter alia, of the applicant's drug abuse which she had acknowledged and which prevented her from assuming the everyday care of T. The Committee also noted that out of concern for T's well-being the applicant had consented to several of the proposed care arrangements. Moreover, as the applicant was facing lengthy rehabilitation and her contact with T had already been broken off, the Committee found it to be in the latter's best interests to deprive the applicant of her parental rights and thus prepare for an adoption of T at a later stage. For the time being, the Committee also found it necessary to keep T's whereabouts secret from her maternal grandparents. Any subsequent contacts between T and her grandparents would be a matter for the foster parents.         Subsequent to the Committee's decision T and her grandparents met on various occasions on neutral premises.    In an appeal lodged on 3 December 1992 the applicant challenged the deprivation of her parental rights, fearing that it could affect her parents' relationship with T. It seemed as if the social welfare officials sought to reduce the grandparents' contact with T as much as possible so as to be able to proceed to having her adopted. In such a case any continued contact between T and her grandparents would be in the hands of the adoptive parents. The applicant therefore objected to having T adopted. Instead she requested that an access plan be drawn up in order to regulate the contacts between T and her grandparents. The applicant lodged supplementary observations in March 1993.         On 5 October 1993 the competent County Governor (fylkesmannen) dismissed the applicant's appeal. The Governor found that the deprivation of parental rights with a view to having T adopted was in accordance with sections 19 and 20 of the 1953 Act. As T was most likely going to grow up in her foster home, affording the foster parents the possibility to adopt her would be in her best interests. It would then be for the adoptive parents to decide whether there should be any contact between T and her maternal grandparents.         On 15 February 1994 the applicant contested the County Governor's decision by bringing it before the competent City Court (byrett). The two court-appointed experts submitted their opinions in July and August 1994, respectively, and the City Court's hearing was held in October 1994. Six witnesses and the two experts were examined. The experts supported the appealed decision, though one of them recommended not to proceed to an adoption within the next few years. Moreover, according to the Social Welfare Centre, the foster parents had stated that they would allow contacts between T and her grandparents.         On 4 November 1994 the City Court dismissed the applicant's appeal. It noted, inter alia, that although the contact between T and her grandparents had been reduced earlier on during the proceedings in order to enable T to root herself in the foster family, the foster parents intended to allow continued contact between T and her grandparents. In that respect T's factual situation would therefore not change much, should she be adopted. However, an adoption would, for instance, confer on her the same legal status as her de facto sibling, namely the foster parent's adoptive child. Considering all circumstances, her adoption by the foster parents would be in her best interest.         In her subsequent appeal of 8 January 1995 the applicant again made clear that she accepted that T remain in public care in the home of her foster parents. The applicant contended, however, that it would not be in T's best interest to be adopted by the foster parents.         On 23 March 1995 the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) refused the applicant leave to appeal. This decision was notified to the applicant on 22 April 1995.         In July 1994 a second daughter, J, was born to the applicant. In May 1995 the social welfare authority of K placed J in public care in a foster home due to the parents' recidivist drug abuse. The parents have not been deprived of their parental rights and apparently the local authority does not intend to have J adopted. The applicant and J meet regularly.      At present T continues to live with her foster parents but has not yet been adopted by them. She has been seeing her maternal grandparents four times a year. It is the grandparents' understanding that this contact will end if the adoption takes place.     COMPLAINTS   1.     The applicant complains that her daughter T's placement in public care with a view to being adopted, the deprivation of parental rights and the secrecy order regarding her daughter's whereabouts effectively cut all ties between the two,   thereby violating the applicant's rights under Article 8 of the Convention. The applicant also points to the arbitrariness of the local authority's decision to place T in public care (as opposed to that made by the local authority at K in respect of her second daughter J).   2.     The applicant furthermore complains that she was denied a hearing within a reasonable time before an independent tribunal within the meaning of Article 6 para. 1 of the Convention. It took over two years before the deprivation of her parental rights was examined by the City Court; the first "tribunal" within the meaning of Article 6 para. 1. This passage of time was allegedly used as an argument against the applicant.     THE LAW   1.     The applicant complains that her daughter T's placement in public care with a view to being adopted, the deprivation of parental rights and the secrecy order regarding her daughter's whereabouts cut all ties between the two, thereby violating the applicant's rights under Article 8 (Art. 8) of the Convention.   (a)    In so far as the complaint concerns T's placement in public care and the secrecy order regarding her whereabouts the Commission considers that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 8 (Art. 8). The Commission recalls that under Article 26 (Art. 26) of the Convention, it "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...".         The Commission notes that in the domestic proceedings the applicant, assisted by counsel, did not oppose the aforementioned public care arrangements. Accordingly, she has not exhausted the remedies available to her under Norwegian law. Moreover, an examination of this aspect of the complaint does not disclose the existence of any special circumstances which might have absolved her, according to the generally recognised rules of international law, from exhausting the remedies at her disposal.         It follows that this aspect of the complaint must be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.   (b)    The Commission has next considered the complaint in so far as it pertains to the deprivation of the applicant's parental rights with a view to putting T up for adoption.         Article 8 (Art. 8) of the Convention provides, in so far as relevant:         "1. Everyone has the right to respect for his ... family       life, ...         2. There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society ..., for the protection of health or morals, or for       the protection of the rights and freedoms of others."         The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (Art. 8) (see, e.g., Eur. Court HR, the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, para. 86).   The impugned measure amounted to an interference with the applicant's right to respect for her family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. Such an interference constitutes a violation of this Article unless it is "in accordance with the law", pursues an aim or aims that are legitimate under Article 8 para. 2 (Art. 8-2) and can be regarded as "necessary in a democratic society".         While considering the impugned decision "arbitrary" the applicant does not specify whether and, if so, why the interference was not "in accordance with the law". Having regard to sections 19 and 20 of the 1953 Child Welfare Act, the Commission is satisfied that the interference in question was "in accordance with the law".         The Commission is, moreover, satisfied that the contested measure was aimed at protecting the "health" and the "rights and freedoms" of the applicant's daughter and thus pursued legitimate aims within the meaning of Article 8 para. 2 (Art. 8-2).         Turning to the question whether the interference was "necessary in a democratic society", the Commission recalls that taking a child into public care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. In this regard, a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent (see, e.g., Eur. Court HR, Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions, 1996-III, pp. 1008-1009, para. 78).         The present applicant was deprived of her parental rights in the context of a permanent placement of her daughter in a foster home with a view to adoption by the foster parents. This measure was particularly far-reaching in that it totally deprived the applicant of her family life with the child and was inconsistent with the aim of reuniting them. 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 (cf., e.g., the above-mentioned Johansen judgment, loc. cit.).     In the case in point the applicant accepted at an early stage that access between her and her daughter should not take place. Both her appeals on the domestic level and her application to the Commission concern in essence the potential effect which T's adoption by her foster parents might have on T's relationship with her maternal grandparents. In finding that it would be in the best interests of the child to place T in public care with a view to her adoption the Client and Patient Committee took into account, inter alia, that the contact between the applicant and T had already been broken off and that the applicant would need long-term rehabilitation against her drug abuse. It is true that initially the Committee also prohibited the grandparents' access to T but it transpires from the file that the three have nevertheless met fairly regularly with the approval of the social welfare authority. In upholding the Committee's decision the appeal organs noted the foster parents' intention to allow the contacts between T and her grandparents to continue.         In the circumstances of this case the Commission therefore considers that the reasons adduced to justify the interference in question were relevant and sufficient for the purposes of Article 8 para. 2 (Art. 8-2) (cf., e.g., Eur. Court HR, the Olsson v. Sweden judgment of 24 March 1988 (no. 1), Series A no. 130, p. 32, para. 68).         Nor is there anything to suggest that the decision-making process leading to the impugned decision was unfair or failed to involve the applicant to a degree sufficient to provide her with the requisite protection of her interests (cf., e.g., the aforementioned McMichael judgment, pp. 55 and 57, paras. 87 and 92).         Accordingly, there is no indication of any violation of Article 8 (Art. 8) of the Convention.         It follows that this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains that she was denied a hearing within a reasonable time before an independent tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. In so far as relevant this provision reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a ... hearing within a       reasonable time by [a] ... tribunal ..."         The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities and the importance of what is at stake for the applicant in the litigation (see, e.g., Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions, 1996-VI, pp. 2180-2081, para. 55). In view of the irreversible and definitive character of the measures concerned, the competent national authorities were required by Article 6 para. 1 (Art. 6-1) to act with exceptional diligence in ensuring the progress of the proceedings (see the above-mentioned Johansen judgment, pp. 1010-1011, para. 88).   The period to be taken into consideration for the purpose of assessing the length of the proceedings under Article 6 para. 1 (Art. 6-1) began with T's provisional placement in public care in June 1992. It ended in March 1995, when the Supreme Court refused leave to appeal. The proceedings thus lasted some two years and nine months.         The Commission notes that the case involved the hearing of various witnesses and experts and must be considered somewhat complex. As for the conduct of the authorities, the Commission notes that the case was pending before the Client and Patient Committee for about three months. The applicant's appeal to the County Governor was pending for ten months. The City Court decided the matter within less than nine months, whereas the Supreme Court refused leave to appeal within two and a half months. The Commission cannot detect any delay at any of these four levels for which the authorities could be held responsible.         As for the applicant's own conduct, the Commission notes that, although assisted by counsel, she appealed against the Client and Patient Committee's decision only some four months later. The same is true for her appeal against the County Governor's decision. Accordingly, although the total length of proceedings might at first sight raise concerns, the delays in the proceedings can reasonably be held against the applicant due to her counsel's behaviour.         Nor can the Commission find that the passage of time was used as an argument against the applicant.         Making an overall assessment, the Commission therefore considers that the length of the proceedings was not excessive in the specific circumstances of this case. Accordingly, there is no indication of any violation of Article 6 para. 1 (Art. 6-1).         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber