I incorrectly predicted that there's no violation of human rights in K.O. AND v.M. v. NORWAY.

Information

• Judgment date: 2019-11-19
• Communication date: 2017-05-04
• Application number(s): 64808/16
• Country:   NOR
• Relevant ECHR article(s): 8, 8-1
• Conclusion:
  No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
  Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
  Non-pecuniary damage - award (Article 41 - Non-pecuniary damage
  Just satisfaction)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.872166
• Prediction: No violation

• Inconsistent

Communication text used for prediction

1.
The first applicant is Mr K.O.
and the second Ms V.M.
They are Norwegian nationals who were born in 1974 and 1986 respectively and live together in F. The President decided that their identity should not be disclosed to the public (Rule 47 § 4).
They are represented before the Court by Mr M. Engesbak, a lawyer practising in Oslo.
A.
The circumstances of the case 2.
The facts of the case, as submitted by the applicants, may be summarised as follows.
1.
The emergency decision 3.
On 1, 10 and 22 December 2014, the child welfare authorities received notifications of concern (bekymringsmeldinger) about A, as yet unborn.
Two of the notifications came from the police and one from the preventive mental health services (forebyggende psykisk helsetjeneste – FPH)).
In addition, the authorities had received three notifications from private parties, two of which were anonymous.
These expressed serious concerns as to how the second applicant was being controlled and manipulated by the first applicant.
According to the notifications, the first applicant had forced the second applicant to use amphetamines, cut all her clothes and put her shoes in water in order to hinder her from leaving their house.
Moreover, information emerged to the extent that the second applicant had been excluded from contact with her family and network, either as she had been manipulated into distancing herself from them, or because they had been threatened and frightened by the first applicant.
According to the senders of the notifications, the second applicant had tried to leave the first applicant several times, but always returned.
4.
A, a girl, was born on 13 January 2015.
On that day, the child welfare authorities received three further notifications of concern, from a midwife, the child’s grandmother and an anonymous party, respectively.
5.
On 15 January 2015, the child welfare authorities placed the mother and the child at a family centre, with the mother’s consent.
The father was informed of the decision, but not of their whereabouts, due to the concerns that had been expressed in the above notifications.
6.
On 22 January 2015, the child welfare authorities considered that the mother had withdrawn her consent to stay at the family centre.
It therefore adopted an emergency decision under section 4-6 of the Child Welfare Act (see paragraph 36 below) to place A in public care; to grant the applicants contact rights of one hour every second week, under supervision; and not to inform the applicants of A’s address, due to the seriousness of the concerns that had been expressed in the above notifications.
The authorities found that there was a risk that A would suffer considerable harm if she were to stay at home with her parents.
Reference was made to descriptions of mental health problems, suspicions of violence and prior intoxication problems in the notifications, and to the fact that the applicants had not agreed to cooperate with the child welfare authorities prior to A’s birth.
7.
The applicants appealed against the emergency decision to the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker).
On 2 February 2015, the Board upheld the decision, and referred to the notifications received by the child welfare authorities prior to A’s birth.
Moreover, it noted that the applicants had refused to cooperate with the authorities before the birth and that the mother had withdrawn her consent to stay at the family centre.
8.
The Board’s decision, in which the emergency decision had been upheld, was brought before the District Court, which upheld the Board’s decision on 26 March 2015.
9.
The District Court initially stated that the starting point for the assessment of the risk of the child suffering material harm was the needs of the child, according to its age and development.
Emergency decisions could be taken not only where there was a risk of physical danger, but also where there was a risk of harm to the child’s emotional and social development.
10.
Further, the legal conditions to adopt an emergency decision were strict; there had to be a qualified risk of danger or harm and an emergency decision could not be taken only for the purpose of examining the home or the child’s conditions.
Moreover, such a decision could not be adopted if assistance measures would bring the care situation to an acceptable level.
Lastly, the decision could only be made if in the best interests of the child.
11.
The child, A, was at the time a three and a half month old infant.
She was not ill and had developed adequately.
She had, however, experienced two changes of carers, a matter which made her more vulnerable for further changes in the care situation than what would usually be the case for a child her age.
12.
There was a risk of material harm if she be returned to the parents at the time.
The first applicant’s criminal record, his history of violence and drug related offenses, was not decisive.
It was, however, relevant in the overall assessment.
13.
Great weight was attached to the level of conflict between the applicants.
A considerable degree of conflict and instability over time had been proven.
It was undisputed that the second applicant during the pregnancy repeatedly had left the home and sought help from the authorities, and that the first applicant had at least on one occasion thrown her out of the home after a quarrel.
Moreover, it had been established that the police had been called to the home several times during the pregnancy, both by the second applicant and by neighbours.
Not only did this type of conflicts have a considerable potential for harming small children; parents in constant conflict would not be able to provide a small child the careful and sensitive care it needs.
14.
The second applicant’s ability to handle conflicts appeared very inappropriate and characterised by a lack of impulse control.
This was in itself a strong reason for concern.
Moreover, in 2014 she had pretended to be suicidal in order to be subject to compulsory mental health care, which resulted in her being admitted to a mental institution.
Her general practitioner had testified that she had not considered her as suicidal and that the compulsory placement had been an error.
The District Court noted that the second applicant’s mental health had not been examined and that it had considerable concerns for her mental health in relation to her role as a mother for a small child.
15.
Whilst the applicants had alleged that they would adapt to the new situation with an infant and not argue in the presence of the child, the District Court remarked that the level of conflict had been high over time, both before and during the pregnancy, and even close up to birth.
Taking additional account of the demanding task to care for a small child, there was a great risk the high level of conflict would continue.
Both applicants had had difficult upbringings and the first applicant had a burdensome past.
He had stated that he had developed a post-traumatic stress disorder (PTSD) and that he could be jumpy and “on guard”.
16.
Based on an overall assessment, there were considerable risks connected to the applicants and a qualified danger that the child would suffer material harm if the emergency order was lifted.
Taking account of the complexity of the family’s problems and of how both applicants had been followed up by the health and drug related care services without results, the District Court concluded that the applicants needed extensive and long-lasting assistance.
The municipality did not have any available family centres in which the whole family could be lodged, and therapeutic personnel could not be present with the family at all times.
In conclusion, there were no available assistance measures that could remedy the dangers involved in a return of A to the applicants.
17.
The applicants appealed against the District Court’s ruling on the emergency decision, but later withdrew the appeal, as the child welfare authorities had instigated proceedings in order to obtain a care order (see below).
2.
The placement decision (a) The County Social Welfare Board proceedings 18.
Prior to the District Court’s judgment on the interim care order, the child welfare authorities, on 6 March 2015, petitioned the Board for a decision to place A in public care under section 4-12 of the Child Welfare Act (see paragraph 36 below).
19.
On 20 May 2015, the County Social Welfare Board decided that A should be placed in a foster home, that the applicants should be given contact rights of one hour, four times a year, under supervision, and that they should not be informed of A’s whereabouts, in accordance with section 4-19 of the Child Welfare Act (see paragraph 36 below), due to concerns that they would try to find A, be bothersome to the foster parents, and at worst kidnap A.
The Board decided not to deprive the applicants of their parental responsibility, as it considered this unnecessary in order to ensure the security of such a young child, taking account also of the fact that her whereabouts would not be disclosed.
20.
The Board found that the parents, individually and together, carried numerous risk factors.
They had each been diagnosed as suffering from a number of disorders.
Neither of them had, over time, taken advantage of measures offered to assist them with their mental health issues or intoxication problems.
Although the applicants had not abused substances after the mother became pregnant with A, there was still a high risk of relapse, especially taking into consideration the challenges generally arising from being responsible for a small child.
The parents were unemployed and had not been working for any length of time over recent years.
Both had experienced difficult upbringings.
The father had numerous criminal convictions.
Whilst criminal convictions did not as such imply reduced care abilities, some of his convictions concerned violence and threats, and the police had been called to the applicants’ house several times during 2013 and 2014.
The mother had been described by health staff as being under the father’s control, and the Board found that either the father was very dominating and controlling, or the mother was unusually dependent, or both.
The father had a network of family and relatives, but this was considered insufficient.
Further assistance measures would not suffice either.
21.
As to the contact rights, the Board noted that no attachment had been established between A and the applicants, as she had been placed in public care immediately after birth.
The placement in foster care would most likely be long-term.
The purpose of visits would therefore be solely for the applicants and A to know each other.
Although it was important for A to have order and stability in her relationship with her carers, it was in the Board’s view not necessary to restrict the contact rights to the degree proposed by the child welfare authorities – one hour, once a year.
Instead it granted visiting rights of one hour, four times a year.
(b) The District Court proceedings 22.
The applicants appealed against the County Social Welfare Board’s decision to the District Court and subsequently requested a suspension of the Board’s decision as far as the limited contact rights were concerned.
The latter was refused by the District Court on 6 July 2015.
23.
The District Court, composed of one professional judge, one lay person and one psychologist, in accordance with section 36-4 of the Dispute Act (see paragraph 37 below), heard the applicants, witnesses and the court‐appointed expert, also a psychologist, on 24, 25 and 26 November 2016.
24.
In its judgment of 17 December 2015, it noted that A was a normally functioning child, whose development was adequate for her age.
However, she had already experienced two separations from carers; first when she was moved from the mother to the emergency care home and a second time when she was moved from that home to the foster family.
The District Court also considered that she was currently establishing ties to the foster parents.
25.
Although it had become clear to the District Court that the applicants were loving parents who wanted the best for A, it found that the evidence had revealed numerous risks relating to the applicants as care persons.
26.
The court-appointed expert had concluded that the father showed some signs that might indicate an underlying antisocial personality disorder.
She considered, however, that he was more resourceful than the child welfare authorities had assessed.
The father’s psychologist had testified that his state of health was complex; he had been diagnosed with an attention deficit hyperactivity disorder (ADHD) and showed symptoms of PTSD.
The District Court understood that, because of the PTSD, he was “self-medicating” (“selvmedisinerer”) daily with cannabis.
The psychologist was further of the opinion that the father was resourceful and had high intellectual abilities, and that he possessed both the motivation and the energy to make changes.
27.
The District Court referred to the father’s crimes, which had consisted of serious, violent offences of an antisocial character, and which gave reason to question his personality.
He had been convicted of violence at least six times, first when he was 16 years old, and sentenced to imprisonment of a total of 15 years.
In 2005 a court of first instance had ordered his preventive detention, but this had, upon appeal, been altered to a prison sentence.
Most of his criminal acts had been carried out when he had been a member of the motorcycle club “Bandidos”, and partly in the course of his task as an enforcer for this club.
The District Court noted that he in that context had punished people both physically through beatings and mentally through threats and money collecting.
According to the police, he was registered with 100 reports and there were cases that had not been concluded.
The second applicant’s mother had, inter alia, reported him for threats.
28.
Further account was taken of the applicants’ involvement with the police due to domestic disorder and conflicts (“husbråk og lignende”).
In the District Court’s view, the criminal cases illustrated that the father had for a long time shown antisocial behaviour.
Moreover, he appeared to have little confidence in, or patience with, public authorities, including the child welfare authorities.
The manager of the municipal child welfare authorities had obtained a restraining order against him due to frightening or threatening messages posted on social media.
29.
As to the mother, the court-appointed expert had not found that she suffered from any serious mental health disorder.
However, she showed symptoms of being in crisis.
The District Court noted that she had been clear of substance abuse for a long time, but considered her to be vulnerable and with only a small support network of her own.
It referred also to her extensive treatment for mental health issues over the years, her impulsive behaviour and her tendency to exaggerate her health problems.
30.
The District Court agreed with the applicants that the child welfare authorities could be criticised for their initial handling of the case, relating to the emergency decision.
It found it surprising that the authorities had actively sought to prevent the father from having contact with the mother and the child at the time of the birth.
Additionally, the District Court noted that there was considerable uncertainty as to whether the mother had in fact withdrawn her consent to stay at the family centre.
Moreover, it questioned whether the applicants should not have been given the opportunity to try being parents.
In particular, it noted that the mother had just given birth and was therefore in a vulnerable situation on arriving at the family centre.
That might have had an impact on her capacity for rational thinking and her precise perception of the circumstances.
The fact that she had wanted to talk to the father could not, in that situation, be interpreted as amounting to a refusal to co-operate with the child welfare authorities.
31.
In the District Court’s view, the authorities should have gathered more information before deciding that it was necessary to place the mother and A at the family centre.
At the same time the District Court understood that it had been necessary to make a decision in the light of the notifications of concern received by the authorities.
In any event, the District Court found that its criticisms of how the authorities had previously handled the case did not constitute a reason to return A to the applicants at the time of the court’s decision.
32.
Based on an overall assessment, the District Court concluded that the County Social Welfare Board’s decision that A be placed in public care had to be upheld.
It particularly emphasised that the father had an ongoing problem with the use of cannabis.
The court-appointed expert and the mother’s general practitioner (“fastlege”) had spoken in favour of returning A.
The District Court found, however, that they had not taken sufficient account of the risk factors.
Assistance measures were not considered capable of creating appropriate conditions in the applicants’ home.
Due to the father’s behaviour, the District Court agreed that the applicants should not be informed of A’s whereabouts.
33.
In the decision on visiting rights, the District Court noted that there were not reasons to believe that A would be returned to the applicants’ care within a short time.
Her best interest therefore indicated that their visiting rights should not be extensive.
Concurrently, the applicants’ capacity to carry out visits (“foreldrenes samværskompetanse”) had been described in positive terms; the family centre had not been worried about the second applicant’s ability to achieve a good interplay with A; and due to A’s young age each visit would only last a short while.
The District Court found, therefore, that the contact rights could be increased to up to two hours, six times a year.
34.
On 1 March 2016, the High Court (lagmannsrett) refused leave to appeal.
35.
On 4 May 2016, the Supreme Court (Høyesterett) rejected an appeal against the High Court’s decision.
B.
Relevant domestic law 36.
The relevant sections of the Child Welfare Act 1992 (lov om barneverntjenester) read as follows: “Section 4-6.
Interim orders in emergencies.
If a child is without care because the parents are ill or for other reasons, the child welfare service shall implement such assistance as is immediately required.
Such measures may not be maintained against the will of the parents.
If there is a risk that a child will suffer material harm by remaining at home, the head of the child welfare administration or the prosecuting authority may immediately make an interim care order without the consent of the parents.
In such a case the head of the child welfare administration may also make an interim order under section 4-19.
If an order has been made under the second paragraph, an application for measures as mentioned in section 7-11 shall be sent to the county social welfare board as soon as possible, and within six weeks at the latest, but within two weeks if it is a matter of measures under section 4-24.
If the matter has not been sent to the county social welfare board within the time‐limits mentioned in the fourth paragraph, the order lapses.
Section 4-12 Care orders A care order may be issued (a) if there are serious deficiencies in the daily care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development, (b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required, (c) if the child is mistreated or subjected to other serious abuse at home, or (d) if it is highly probable that the child’s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child.
An order may only be made under the first paragraph when necessary due to the child’s current situation.
Hence, such an order may not be made if satisfactory conditions can be created for the child by assistance measures under section 4-4 or by measures under section 4-10 or section 4-11.
An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7.
Section 4-16.
Follow-up of care orders.
After a child has been taken into care, the child welfare service has a comprehensive, ongoing responsibility for following up the child, including a responsibility to monitor the development of the child and his or her parents.
Where it is found to be in the best interest of the child, the child welfare service shall facilitate access to his or her brothers or sisters.
Shortly after a child has been taken into care, the child welfare service shall contact the parents to offer guidance and follow-up.
If the parents so desire, the child welfare service shall, as part of such follow-up, put them in contact with other assistance agencies.
Section 4-19 Visiting rights.
Covert address.
Unless otherwise provided, children and parents are entitled to access to each other.
When a care order has been made, the county social welfare board shall determine the extent of access, but may, for the sake of the child, also decide that there shall be no access.
The county social welfare board may also decide that the parents shall not be entitled to know the child’s whereabouts.
Other persons who have provided daily care for the child in place of his or her parents prior to the child being taken into care may demand that the county social welfare board determine whether they shall be entitled to access to the child and the extent of such right of access.
The child’s relatives, or other persons to whom the child is closely attached, may demand that the county social welfare board determine whether they shall be entitled to access to the child and the extent of such right of access when a) one or both of the parents is/are dead, or b) the county social welfare board has decided that one or both parents shall not be entitled to access to the child or that the parents’ right of access shall be very limited.
The private parties may not demand that a case regarding access shall be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months.” 37.
The relevant sections of the Dispute Act 2005 (tvisteloven) read as follows: “Section 36-2 How and where legal action shall be brought.
The effects of legal action (1) Legal action shall be brought by submission of a claim for judicial review to the authority that made the decision.
The relevant authority shall immediately forward the claim for judicial review to the court, together with the documents relating to the case.
(2) The action shall be heard by the district court in the judicial district where the private party is located, according to the administrative decision or where he has his ordinary venue or had his ordinary venue before the decision was implemented.
(3) Legal action shall not prevent the implementation or continuation of the decision unless the court decides otherwise by interlocutory order.
Suspension of the decision does not imply that the decision shall lapse.
Section 36-4 The composition of the court.
Expert panel (1) The district court shall sit with two lay judges, of whom one shall be an ordinary lay judge and the other shall be an expert.
In special cases, the court may sit with two professional judges and three lay judges, of whom one or two shall be experts.” (2) The King can establish one or more panels of person with expertise in cases to be heard pursuant to this Chapter.” COMPLAINT The applicants complain under Article 8 of the Convention that the decision to place their daughter in foster care and grant them visiting rights of up to two hours, six times a year, amounted to a disproportionate interference with their family life.