CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 décembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sB6A7F5BF { width:17.54pt; display:inline-block } .s235C1871 { width:137.76pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 27182/21 M.M. against Norway   The European Court of Human Rights (Second Section), sitting on 12   December 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.   27182/21) 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 10   May 2021 by a Norwegian national, Ms M.M. (“the applicant”), who was born in   1969 and lives in Oslo; the decision not to disclose the applicant’s name; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns proceedings relating to whether a care order in respect of the applicant’s son, X, should be lifted and relating to the applicant’s contact rights during her son’s placement in care. 2.     The child welfare services came into contact with the applicant and her family in 2008 because the applicant had informed the social insurance authorities that she and X, born in 2005, were victims of domestic violence. During Easter in 2010 an incident involving domestic violence took place which led to X’s father being kept in detention for four weeks and a restraining order being imposed on him for one year (it was lifted after four weeks at the applicant’s request). In 2011 X’s father was sentenced to two years’ imprisonment on charges of committing acts of violence against the applicant. There were further concerns relating to X’s situation in his home during the years thereafter and, in 2015, X reported that the applicant had abused him. The applicant denied having done so, but later admitted that she had hit X on one occasion. 3.     In May 2015 various emergency placement decisions were made in respect of X and a care order was issued on 26 November 2015. The applicant was granted contact rights on that occasion but X resisted carrying out those contact sessions. In a judgment of 14 February 2017 the High Court decided not to grant the applicant any contact rights. 4.     The applicant applied to have the care order lifted or, in the alternative, to be granted contact rights. Those proceedings were discontinued in 2018 after an agreement had been reached between the applicant and the child welfare services which stated, inter alia , that the child welfare services would attempt to facilitate contact sessions between the applicant and X. X still resisted and no contact sessions were ultimately carried out. 5 .     In the proceedings at issue, on 20 March 2019 the applicant again applied to have the care order lifted or, in the alternative, to be granted contact rights. 6.     On 10 September 2019 the County Social Welfare Board dismissed the applicant’s application. 7.     On 9 March 2020 the City Court, on review, upheld the Board’s decision in so far as it concerned the care order but granted the applicant contact for one hour once per year, under supervision. 8.     The applicant appealed against the City Court’s judgment in so far as it concerned the care order but not in respect of the contact rights. On 5   January 2021 the High Court upheld the City Court’s judgment. 9.     On 15 March 2021 the Supreme Court’s Appeals Committee refused the applicant leave to appeal against the High Court’s judgment. 10 .     In her application to the Court, the applicant complained that she had been deprived of providing daily care for X and that she had been granted very limited or no contact rights, which had constituted a violation of Article   8 of the Convention. THE COURT’S ASSESSMENT 11 .     With regard to the applicant’s submissions relating to the situation as it was following the time when X was first placed in public care in 2015, the Court observes at the outset that any grievances relating to proceedings prior to those that started in 2019 (see paragraph 5 above) were not brought before the Court within the six-month time-limit of Article 35 § 1 of the Convention (as then in force) and the Court therefore cannot review the compatibility of these prior proceedings as such with Article 8 of the Convention (see, similarly, Strand Lobben and Others v. Norway [GC], no.   37283/13, §§   142 ‑ 47, 10 September 2019). However, they may still inform the Court’s assessment of the instant case by providing context (ibid., §   148). 12 .     The Court observes that the applicant did not appeal against the City Court’s judgment in respect of contact rights. For that reason, it considers that the part of the application relating to the applicant’s complaint that the contact rights were overly limited is inadmissible owing to the fact that domestic remedies have not been exhausted, as required by Article 35 §   1 of the Convention. 13 .     In so far as the application relates to X’s remaining in public care, the Court finds it established that the decision not to lift the care order entailed an interference with the applicant’s right to respect for her family life enshrined in Article 8 § 1 of the Convention. It has not been disputed by the applicant, and the Court also finds it unequivocally established, that the interference had a basis in domestic law, namely the 1992 Child Welfare Act, which was applicable at the material time, and pursued the legitimate aims of protecting X’s “health” and his “rights”. The remaining issue is solely whether the interference was “necessary in a democratic society” within the meaning of Article 8 § 2. 14.     The general principles relevant to the necessity test were extensively set out in Strand Lobben and Others (cited above, §§ 202-13) and have since been restated in a number of cases, including Abdi Ibrahim v. Norway ([GC], no.   15379/16, § 145, 10 December 2021). For the purposes of the present analysis, the Court reiterates in particular that it recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, this margin is not unfettered. For example, the Court has in certain instances attached weight to whether the authorities, before taking a child into public care, had first attempted to take less drastic measures, such as supportive or preventive ones, and whether these had proved unsuccessful (see Strand Lobben and Others , cited above, § 211). 15.     As to whether the domestic authorities provided relevant and sufficient reasons for their decision not to lift the care order in respect of X, the Court first notes that the decision was taken in the course of a thorough decision-making process. The application to lift the care order was first examined by the County Social Welfare Board, whose bench comprised a jurist qualified to act as a professional judge, an expert in psychology and a lay person. Both parents attended with counsel, witnesses were examined and X was heard via his spokesperson (representative), who also submitted a written report. The City Court had a similar composition, with all three members speaking with X in person and hearing the case over two days. In the proceedings before the High Court, X was given rights as a party to those proceedings and was represented by his own counsel. The appeal before the High Court was also heard over two days. 16.     With regard to the specific reasons provided, the High Court, which was the highest instance examining the case on the merits, had regard to the legal framework of the case, which included Article 8 of the Convention and this Court’s case-law. It examined in detail the developments in X’s child welfare case since the care order had first been issued in 2015. It further examined X’s care needs, in particular on the basis of information from one of the psychologists who had been involved in the case. It considered X’s care needs significant, although he had shown improvement since he had first been taken into public care. In particular, it noted that X had behavioural difficulties (attention deficit hyperactivity disorder (ADHD) and learning difficulties) and challenges with social and emotional functioning, which had manifested themselves through violent behaviour. The court considered that X was a vulnerable boy with a particular need for predictability and stability. Furthermore, the High Court examined the applicant’s caring abilities and her views on that matter, which included her perception that X had been lying or had been manipulated into saying that she had abused him. The High Court noted that the applicant had shown a limited understanding of X’s struggles and behavioural difficulties and found it unlikely that she could provide him with the personal contact and security that he needed. In conclusion, the High Court found that the applicant was still not capable of providing X with adequate care. The applicant had, moreover, not accepted or made use of any of the assistance measures that she had been offered to help her improve her caring skills and the High Court was of the view that she would not accept any further offers of such measures either. Reference was also made to the expert psychologist’s report, where it was stated that stable care would be important for X in order not to later develop relationship difficulties and mental illness. The High Court also considered that, in the light of the fact that X was 15 years old at the time of its judgment, his own views had to be given considerable weight and that he did not wish to be moved back with the applicant. In addition, the High Court considered that removing X from his foster home at that time would cause him serious harm owing to his particular needs and situation. It was also taken into account that he strongly opposed meeting with the applicant, which he had stated caused him trauma and was negatively affecting his daily life. 17.     In the light of the foregoing, the Court finds that the domestic courts gave relevant and sufficient reasons to justify the decision not to lift the care order. In that connection, it takes note of the importance given to X’s own views in the course of the domestic proceedings, which was in keeping with the Court’s case-law relating to the importance to be given to children’s own views in cases involving them (see, for example, K.B. and Others v.   Croatia , no.   36216/13, § 143, 14 March 2017, with further references). The Court likewise finds no other indication that the impugned interference with the applicant’s right to respect for her family life ran counter to X’s best interests, which was paramount in a case that related to his care situation (see, for example, among many other authorities, Strand Lobben and Others , cited above, § 204). 18.     As concerns the child welfare measures adopted in respect of X prior to the proceedings now under the Court’s examination, which are relevant to the Court’s assessment as context (see paragraph 11 above), the Court notes that in the instant case the High Court also carried out a detailed examination of those previous stages of the child welfare case in view of the applicant’s allegations that the care order had been issued by mistake, in particular as she maintained that there was insufficient proof that she had abused X. The High Court found that no relevant errors had taken place in connection with the care order, nor did it find that the child welfare services had failed in any positive obligations relating to reunification of the family. In that connection, it took note of the difficulties that had arisen with regard to contact between X and the applicant because of X’s own opposition to such contact. The Court does not consider that the applicant has adduced anything that may lead it to consider those matters differently. 19 .     On the basis of the foregoing the Court concludes that the interference with the applicant’s right to respect for her family life was proportionate to the legitimate aims pursued and thus “necessary in a democratic society”, for the purposes of Article 8 § 2 of the Convention. 20.     It follows from the considerations above that the application is inadmissible in part because domestic remedies have not been exhausted, as required by Article 35 § 1 of the Convention (see paragraphs 10 and 12 above), and in part because it is manifestly ill-founded within the meaning of Article 35 § 3 (a) (see paragraphs 10 and 13-19 above). The application must therefore be rejected in its entirety in accordance with Article   35 §   4. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 January 2024.     Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President