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 } .s6B505E72 { margin:0pt; padding-left:0pt } .sD8BF637E { margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .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. 47015/21 T.H. 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.   47015/21) 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 14   September 2021 by a Norwegian national, Ms T.H. (“the applicant”), who was born in 1986 and lives in Tønsberg, and was represented before the Court by Ms A. Skjelbred, a lawyer practising in Tønsberg; the decision not to disclose the applicant’s name; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the continuation of care orders in respect of the applicant’s three children and her contact rights during their stay in foster care. 2.     The applicant has one child (X, born in 2011) with A and two children (Y, born in 2012 and Z, born in 2014) with B. The applicant is no longer in a relationship with either A or B and, after 2015, had the sole daily care of the three children. 3.     The child welfare services first came in contact with the family in 2011 after receiving a notification of concern from the applicant’s midwife. Between 2011 and 2013 the family was in contact with the child welfare services and received assistance measures by way of weekly visits from a home consultant. The monitoring by the child welfare services ended when the applicant moved house in August 2015. After notifications of concern had been submitted by the children’s kindergarten in 2016, the child welfare services resumed contact with the family and introduced new assistance measures. In April 2018 the child welfare services applied to the County Social Welfare Board for care orders in respect of all the children. The Board appointed an expert psychologist, who submitted a report. 4.     On 27 August 2018 care orders were issued by the County Social Welfare Board in respect of the applicant’s three children. The decisions were upheld on review by the District Court on 15 January 2019. 5.     After a complaint had been lodged by the applicant, the County Governor gave a statement on 6 February 2019 in which he remarked, inter alia , that the child welfare services should have better explained to the applicant the reasons for the examination of the family. 6.     The applicant lodged an application to have the care orders lifted, which was dismissed by the Board on 12 June 2020. In the Board’s decision, the applicant’s contact with X was set at eight days per year, her contact with Y was set at three hours eight times per year and supervised contact with Z was set at three hours four times per year. 7.     On 1 February 2021 the District Court upheld the Board’s decision, save for the question of the applicant’s contact with Y, which it adjusted to four hours six times per year. The District Court based this decision on information that had emerged in the proceedings before it, including assessments set out in a report submitted by an expert psychologist whom it had appointed. It noted, inter alia , that the contact regime that had been in place had appeared to put an “unreasonable burden” on Y. 8.     The applicant appealed against the District Court’s judgment in so far as it concerned the decisions on contact rights in respect of Y and Z. On 15   April 2021 the High Court refused the applicant leave to appeal. 9.     On 7 May 2021 the Supreme Court’s Appeals Committee dismissed an appeal by the applicant against the High Court’s decision. 10.     The applicant complained under Article 8 of the Convention about the proceedings in which it was decided to continue the public care of all three children and about the contact rights granted in respect of them. THE COURT’S ASSESSMENT Complaint regarding the continued care order in respect of all the children and the contact rights in respect of X 11.     The Court notes that the applicant’s case before the Board and the District Court concerned the question of continued care orders and contact rights in respect of all three children. However, the applicant’s appeal to the High Court was limited only to the contact rights in respect of Y and Z. The higher courts accordingly did not examine the parts of her complaint lodged with the Court that related to the care orders or those which related to contact rights in respect of X. It follows that these parts of the application must be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention. Complaint regarding contact rights in respect of Y and Z 12.     The Court finds that the domestic courts’ decisions on contact rights in respect of Y and Z entailed an interference with the applicant’s right to respect for her family life for the purposes of Article 8 § 1 of the Convention. That interference was in accordance with the law, namely the 1992 Child Welfare Act, which was applicable at the material time. It pursued the legitimate aim of protecting the children’s “rights” and their “health”. The remaining question is whether the interference was “necessary” within the meaning of Article 8 § 2 of the Convention. 13.     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 a number of cases, including Abdi Ibrahim v. Norway ([GC], no. 15379/16, §   145, 10   December 2021). From those principles, it follows that the Court must determine whether, in the light of the entirety of the case, the reasons adduced to justify the measures in question were relevant and sufficient for the purposes of Article 8 § 2 and whether the applicant has been adequately involved in the decision-making process seen as a whole (see Strand Lobben and Others , cited above, §§ 203 and 212). 14.     In connection with the applicant’s complaint regarding contact rights in respect of Y and Z, the Court 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). 15.     The Court considers, however, that there are important differences in the facts of this case compared to those cited in the previous paragraph. It notes, in particular, that the District Court’s decision to limit the applicant’s contact with Y and Z was based on the specific circumstances of the case and the development of those circumstances throughout the proceedings. 16.     In determining whether the domestic authorities gave relevant and sufficient reasons for their impugned decisions on contact rights, the Court notes in respect of the context in which these decisions were taken that it is apparent from the domestic decisions relating to the children’s placement in public care that those decisions had been based on findings relating to an untenable care situation that the three children had been living in for several years. This involved concerns about, inter alia , the children’s malnutrition, bad hygiene and lack of supervision, as they had often been left alone, which had sometimes resulted in their being injured. Furthermore, importance was given to the fact that the expert psychologist appointed by the Board had observed that the applicant did not comfort the children and that she, on one occasion, had served very hot baby food to the youngest child, which had caused him to burn himself. There was also general concern relating to the applicant’s frequently moving house and her seeming unwillingness to make use of assistance measures offered. 17.     As to the specific justifications given for adjusting the applicant’s contact rights in respect of Y, the Court notes that the District Court explained that increased contact between the applicant and Y had been attempted. However, the increased number of meetings had turned out to place what the District Court described as an “unreasonable burden” on Y. The District Court referred to, inter alia , a statement from Y’s teacher, who had explained that Y had had adverse reactions to the increase in the contact sessions. She had become restless, struggled with concentration, sought more contact and had gotten into more conflicts with other pupils. Y struggled to “settle in academically and socially” between the contact sessions. The teacher had also expressed concern that, if it continued, it would negatively affect Y’s learning. Moreover, the District Court stated that Y had developed tics after the contact had been increased and also that she had stated that she felt unwell. It also appears from the judgment that Y had told the foster mother and the court-appointed expert that eight contact sessions a year were too many. After considering both the interests of the child and those of the applicant, the District Court decided to reduce the number of meetings and increase the time allowed for each meeting. 18.     The District Court also explicitly considered whether the applicant’s contact with her younger child, Z, could be increased. In its assessment, the court noted that Z had become angry and cried before the contact sessions. Moreover, the District Court noted that it had taken a lot of time for Z to calm down after the meetings and that she had had nightmares, had been exhausted and had lost focus at school in the weeks following the contact sessions. The court emphasised that Z had stated that the current contact regime was too extensive. In the light of these factors, the District Court found that it was in the best interests of Z to uphold the current contact regime. 19.     Having regard to the foregoing, the Court finds that the reasons provided for the limitations on the applicant’s contact rights were based on the children’s best interests in that regard and that they were relevant and sufficient in the circumstances of the case. The impugned decisions do not indicate that insufficient regard was paid to the respondent State’s positive duty to take measures to preserve family bonds to a reasonably feasible extent. In the circumstances of the instant case, the Court also notes that the domestic authorities did not rule out that the applicant’s situation might change in such a way that she could regain care of the children. Lastly, in the circumstances of this case, the Court also considers it relevant that, under domestic law, the applicant may apply to have the contact rights decided anew when a certain period of time has passed or there is information about significant changes in the situation relevant to the issue of contact rights (see, mutatis mutandis , E.M. and Others v. Norway , no. 53471/17, § 59, 20   January 2022). 20.     Having reviewed all the material before it, the Court further considers that the instant case does not disclose any shortcomings relating to the domestic decision-making process. In the light of the foregoing the Court finds that the interference with the applicant’s right to respect for her family life was proportionate to the legitimate aims pursued and thus was “necessary in a democratic society” for the purposes of Article 8 § 2. 21.     The Court concludes that this part of the application is manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) and must be rejected 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