CEDH · CASELAW;CLIN;ENG — 25 septembre 2008

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Norway - 26664/03 Judgment 25.9.2008 [Section I] Article 8 Article 8-1 Respect for family life Second investigation by child welfare services into the applicant’s parental abilities after an initial investigation had concluded that the children did not need to be taken into care: no violation   Facts : The applicant, who had been taking medication for Attention Deficit Hyperactivity Disorder, lived with his wife and two sons until 2001, when his wife moved out and went to live in Finland. Later on she filed several reports against the applicant for alleged assaults and threats, which were eventually dismissed by the police. In addition, she contacted the child care authorities alleging that the applicant was abusing intoxicating substances and that the children were at risk of violence. The authorities opened an investigation during which they made numerous unannounced visits to the applicant’s home before discontinuing their inquiries. Their final report concluded that, even though the applicant’s doctor had considered his consumption of medication too high, the children were not living in a situation which required their compulsory taking into public care. A few months later, following several new reports of concern by third parties alleging the applicant’s frequent intoxication and inappropriate behaviour in public, the child welfare services opened a new investigation. The applicant refused to cooperate with the authorities. In July 2002 the child welfare services concluded the investigation by expressing doubts as to the applicant’s capacity to care for his sons and to ensure their upbringing. They recommended support measures for a period of six months, including assistance such as a support home for the children to visit and providing the applicant with guidance on how to cope with his illness and problems related to drug taking. Meanwhile, the applicant instituted court proceedings to have the second investigation declared unlawful. The courts at first and second instance dismissed his complaint, finding that the authorities’ decision to start the second investigation had not been decisive for his rights and obligations. In the final instance, the Supreme Court, having heard the parties, upheld the first-instance decision. Law : Article 8 – The applicant complained that the second investigation constituted an unjustified interference with his right to respect for his private and family life. The Court found, however, that the investigation had a clear basis in domestic law and pursued the best interests of the children. Moreover, it fell within the range of measures envisaged in Article 19 of the UN Convention on the Rights of the Child for States to take in order to prevent abuse and neglect of children. In the present case an initial investigation had concluded that the children were “living in an insecure and unpredictable care situation” and that the applicant’s medication intake was too high. The second investigation was triggered by a new report by a third person who had witnessed the applicant’s intoxication in a public place. Similar incidents were reported by two other persons. A general duty on the part of the child welfare authorities to thoroughly investigate the validity of such prima facie credible reports could not be derived from Article   8, because it would inevitably risk delaying the investigation, deflecting attention and resources away from the real problems and reducing their effectiveness. In view of the relevant and sufficient reasons referred to above, the Court considered it reasonable that the national authorities should have initiated a second investigation into the children’s situation. Moreover, there was nothing to indicate that in reaching that decision the authorities had gone beyond the wide margin of appreciation accorded to them in matters of child care. As to the modalities of the second investigation, since the applicant had refused to cooperate with the authorities, they had collected evidence from his doctor, the children’s school and the police. In this way they had managed to strike a proper balance between the applicant’s interests in maintaining the confidentiality of certain personal data and the best interests of the children. The Court therefore agreed with the Supreme Court that the second investigation, including the manner in which it was implemented, was necessary and proportionate. Conclusion : no violation (unanimously). Article 6   §   1 – The applicant also complained about the Norwegian courts’ dismissal of his action challenging the second investigation. The Court noted that the domestic courts had concluded that, since the investigation had only been a preparatory measure by the child welfare authorities, the applicant had no actual and current legal interest in obtaining a declaratory judgment. Subsequently, the Supreme Court had afforded the applicant a review of the merits of his complaint, but dismissed them as groundless. Bearing in mind that the Supreme Court was sitting as a court of full jurisdiction, that it had held an oral hearing and carried out a complete review of the questions of law and fact, the right to a court under Article 6   §   1 had been complied with. Conclusion : no violation (six votes to one).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes