JOHANSEN v. NORWAY
Inadmissible
Georg Ress
The applicant, Mrs Adele Johansen, is a Norwegian national, who was born in 1960 and lives in Skive, Denmark. She is represented before the Court by Mr G. Kvande, a lawyer practising in Oslo. The present proceedings concern essentially the Norwegian authorities’ decision on 19 November 1997 to authorise, without the applicant’s consent, the adoption of her daughter S. by her foster parents and their refusal to grant the applicant a right to regular access. They are a sequel to the case which the Court decided in its judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III (hereinafter referred to as “Johansen I”). That case concerned in the main the compulsory taking into care by the Norwegian authorities of the applicant’s daughter S. shortly after her birth in December 1989, their subsequent refusal to terminate the care order and the deprivation of the mother’s parental rights and access. In its judgment the Court held, inter alia, unanimously that neither the care order nor the fact that it remained effective gave rise to a breach of Article 8 of the Convention; and by eight votes to one that the local Client and Patient Committee of Røa’s (“the Committee”) decision of 3 May 1990, in so far as it deprived the applicant of her access and parental rights in respect of her daughter, constituted a violation of Article 8. As regards the case now under consideration it is important to note that the finding of a violation was confined to that decision and that the Court did not express an opinion on the question of S.’s adoption by her foster parents, which had not yet been decided by the national authorities. For the background to this case the Court refers firstly to Part I of Johansen I (pp. 985-996, §§ 9-29). The facts of the case, as presented by the applicant, may be summarised as follows. Pending the outcome of the aforementioned proceedings before the Court in the Johansen I case, the County Governor (fylkesmannen) of Oslo and Akershus suspended the processing of an application for the adoption of S. that had been made by her foster parents on 31 January 1992. Following the Court’s judgment of 7 August 1996, the applicant was informed in October that the adoption proceedings would resume. A psychologist, Ms Karin Hassel, was commissioned to carry out an investigation. On the basis of her report of February 1997, a request for authorisation to adopt was submitted to the Akershus County Social Welfare Board (fylkesnemndea- hereinafter “the County Board”). The matter was discussed in April 1997 and again in October 1997, before a differently composed Board. Before the Board the applicant recognised that S. was in a good foster home and that would grow up there but opposed adoption. She said that she wished to have contact with her daughter and feared that, in the event of adoption, the decision would be left to the foster parents. She was not confident that they would allow her the necessary contact and so requested access. On 19 November 1997 the County Board decided to authorise adoption of the child by her foster parents. It found no reason to take any decision on the applicant’s access to S. until after the adoption, which was to be arranged as soon as possible. Under section 4-20 of the 1992 Child Welfare Services Act (lov om barneverntjenester), where a child had been taken into compulsory care and where the parents had been deprived of their parental responsibilities for it, the County Board was empowered to authorise adoption if (1) it was likely that the parents would be permanently unable to provide suitable care or (2) the child had become so attached to persons and his or her environment that serious difficulties would result if he or she were to be removed, provided that adoption was in the child’s best interests and the foster parents had shown that they were able to raise the child as their own. In the absence of an updated assessment of the applicant’s suitability as a carer, the County Board proceeded on the assumption that she was not permanently unable to provide care. It focused its consideration of the adoption issue on the criterion mentioned under item (2) above, that is to say whether S.’s attachment to persons in her current environment meant that her removal would lead to serious difficulties for her. The County Board was satisfied that the foster parents were clearly suitable as carers for S. It emphasised that S., who was then 8 years old, had lived in the foster home practically all her life. She was old enough to be fully conscious of her foster parents being her only parents and of her own growth; which suggested that she should live with the foster parents until she reached maturity. While there were no social ties between S. and the applicant, there were clear ties between her and the foster parents whom she perceived as her psychological parents. If she were to leave the foster home, it was most uncertain that she would be able to establish basic ties with new carers, as such ties normally developed before the age of three. Removing her from the foster home was likely to entail serious difficulties for her, with an acute separation crisis, and traumatic despair and insecurity. Thus the County Board considered that the second ground for adoption was fulfilled and the applicant did not dispute that. Nor did she request that S. be returned to her. What she did not seem to accept was the definitive character of an adoption, which suggested that she might wish to seek to be reunited with the child later. Adoption would moreover be in S.’s best interests. S did not consider herself a foster child and thus had a very strong attachment to her foster parents. However, the fact that she had not yet been adopted seemed to have caused a feeling of insecurity, both on her own part and on the part of the foster parents. As pointed out by the experts, the need for security was a weighty argument for preferring adoption to continued foster care. A lifelong attachment to her foster family would offer a number of advantages to S. later in life. The Board did not reject the applicant’s wish to have access. It emphasised that the child would soon need to become familiar with and have contact with her biological mother. This was a process that needed to take place over time but should start immediately. For the time being it was not advisable to arrange for regular access. The experience of the first contact would necessarily be an important guide for determining how access should be arranged in the future. While S. would probably enjoy having contact with her biological mother and half-siblings, that contact could in no way compensate for a loss of a sense of belonging to the foster family. The County Board was confident that the foster parents would exercise appropriate discretion in facilitating access once the child was ready to meet the applicant and would seek the assistance of the child care authorities. Adoption clearly was in the child’s best interests, which outweighed the mother’s interest in enjoying a right of access. On 8 January 1998 the applicant instituted proceedings before the Oslo City Court (byrett), requesting it to set aside the County Board’s administrative decision as being unlawful. On 13 January 1998 the County Governor authorised adoption but the matter was subsequently suspended pending the outcome of the judicial proceedings. The first meeting between S. and the applicant took place on 30 October 1999. During the meeting, the applicant did not call S. by her current Christian name but by the name she had given her at birth. The applicant told her that her brothers and sisters missed her and asked her to come to live with them in Denmark. She gave S. a letter from her younger brothers and sisters in which they also asked her to come to live with them and which enclosed one half of a piece of jewellery that would be joined together with the other half and hung up on the wall when she came home to her mother in Denmark. Later the foster parents noted that S. experienced nightmares in which she dreamed of losing her mummy and daddy (the foster parents). She frequently complained of headaches, which she had not done previously. In February 2000 S.’s feelings of insecurity were reinforced when the applicant was observed in the company of another person near S.’s school and home asking pupils at the school if they knew where she was. The applicant had also rung the doorbell of S.’s foster father’s house, but no one had been at home. The applicant had been observed by a neighbour who had recognised her from a television interview she had given the day before in connection with questions that had been put in relation to the case during question time in the Parliament (Storting). Following that incident, S. had said that she was frightened that the applicant might come and take her away. During the school breaks she no longer dared to be outside. She refused to go to bed at night unless one of her foster parents sat with her, she had frequent nightmares and was afraid of falling asleep. During the winter of 2000, S. expressed the wish to meet her younger half-siblings and her older half-brother, D, on her mother’s side. She was particularly interested in meeting D., but did not wish to meet her biological mother again. The meeting took place on 2 May 2000. D was not present. S. was not told beforehand that he would be absent, but the meeting with the half-siblings was held nevertheless. S. accepted the applicant’s presence on condition that a psychologist of the child care services, Sissel Unger, accompanied her. The meeting itself took place at a preventive centre, “Midtimellom” and went well, except that S. was still called by her former name and the half-siblings persisted in asking her to come to their home in Denmark. TV2 had secretly filmed the children outside afterwards, having been informed of the event by a person acting on behalf of the applicant. S. had not been aware of this and was very upset when the recording was shown on television that evening. By a judgment of 19 July 2000 the City Court: (1) upheld the County Board’s decision of 19 November 1997 to authorise adoption and to refuse access pending a final decision on adoption; (2) dismissed the applicant’s requests for a declaratory judgment (fastsettelsesdom) that she had parental responsibility for S. and rights of access, for an order restoring parental responsibility and care to her and for the case to be transferred to another child welfare office. By a further decision of 19 July 2000 the City Court also dismissed a petition by the applicant for a provisional grant of access and for a stay of execution of the County Board’s decision of 19 November 1997. On 24 August 2000 the applicant appealed against the above judgment and decision to the High Court. On 22 February 2001 it dismissed the applicant’s appeal against the City Court’s dismissal of her claims under item (2) above, but allowed the remainder of the appeal to be heard, including the issue whether the applicant should have access in the event that adoption was refused. Subsequently, the applicant brought various proceedings, notably before the City Court on 11 June 2001 claiming that the parental responsibilities for S. were vested in her and that she was entitled to access. On 21 August 2001 the City Court dismissed the latter application but agreed to hear the former. In addition, the applicant made an unsuccessful attempt to discontinue the appeal proceedings before the High Court. In the appeal against the Board’s decision of 19 November 1997 the High Court, sitting with three professional judges, two expert lay judges and two other lay judges, held an oral hearing between 3 and 14 September 2001. The applicant and S.’s father, who were both represented by counsel, were heard, as were the social authorities. A senior child-welfare officer, Vibeke Bonne Øyri, appeared as an expert witness. Twenty-two other witnesses were heard and documentary evidence was adduced, including a revised report by the psychologist Ms Hassel of July 1999. In a separate room the judges took a statement from S. A record was made available to the parties. In its judgment of 12 October 2001 the High Court upheld by six votes to one the City Court’s judgment regarding adoption and unanimously decided not to take any decision on access pending a final decision on adoption. The High Court first interpreted the Court’s Johansen I judgment and noted that the finding of violation concerned only the Committee’s decision of 3 May 1990 to deprive the applicant of access and parental responsibilities and did not encompass subsequent decisions by the national authorities on the subject. The High Court proceeded on the assumption that the deprivation of parental responsibilities was lawful. It then went on to examine whether the other conditions for adoption under section 4-20 of the Child Welfare Act were fulfilled, pointing out that the assessment ought to be based on the situation obtaining at the time of the judgment and what would be in the child’s best interests in the long run. In that regard, the High Court, supported by expert evidence, made inter alia the following observations: “ It is not disputed that as at today [the applicant] is capable of caring for her child. Consent to adoption may however be granted if consideration of the best interests of the child so indicates. S. is nearly 12 years old. For over 11 years she has lived with her foster parents. She is naturally strongly attached to them and to their family, and is fond of them. S. regards the foster parents as her parents and there can be no doubt that they are her psychological parents. S. states clearly that she wishes to continue living with her parents. The High Court considers it completely inappropriate to move S. to [the applicant] against S.’s will. [The applicant] also seems to accept this. The High Court also finds it extremely unlikely that S. would wish to move from her foster parents to Denmark before she reaches the age of majority. The child’s attachment to her foster parents, their family and the environment she knows in Norway is too strong for that, in addition to which she currently has feelings of antagonism against her biological mother. On the basis of the extensive evidence that has been presented, the High Court is in no doubt that these are S.’s own feelings and that she has not been influenced to feel this way. ... The High Court finds no reason to doubt that S.’s foster parents have proved well suitable to bring up S. as their own child. On the basis of the case documents and testimonies from, among others, the child welfare authorities and the expert witnesses who have had contact with the foster parents, the High Court is confident that the foster parents have provided S. with a secure and caring upbringing. This impression was strengthened through the examination of the foster parents in court and through the Court’s conversation with S. The foster parents have lived in separate houses since the start of 1999. The High Court finds that they are still in frequent contact with each other, and that they see each other several times a week. The Court finds furthermore that they sometimes stay overnight in each others’ homes, have contact with each others’ families and spend holidays and weekend excursions together. They both say that they are fond of each other but that, partly owing to the strain that the case has been for them, have felt a need to be alone. They are unsure about the future. They report that they have attempted to make permanent arrangement as to where S. is to live, but have gradually abandoned such arrangements. S. now moves freely between the houses and stays the night where it is most convenient for everyone. Neither the foster parents nor S. have said that this gives rise to any problems. A rupture between parents usually creates problems for the children. However, the amount of strain involved is usually dependent on how the parents handle the situation in relation to the children and on whether there is a high level of conflict between the parents. ... S. reacted negatively to the situation at first. ... However, as a result of the way the parents tackled the problems and the apparent lack of conflict, as well as the close contact that the parents still have between themselves and together with S., she seems no longer to regard this as a major problem today. She hopes, naturally enough, that the foster parents will move together again, which she demonstrates, for example, by insisting on moving out of her mother’s room and leaving the double bed to her father when he stays the night there. The High Court finds that S. does not currently regard the fact that the parents live apart as a major problem, but that it is an arrangement she would prefer to be otherwise. In the assessment of the High Court, the way the foster parents have tackled the care of S. in the situation to date indicates that they would also be suitable to bring up S. in the future, even if they should decide for a permanent separation possibly involving new partners. The foster parents are not separated. The High Court finds it to be clear that the foster parents, in the sense intended by the Adoption Act, are to be regarded as a married couple. Their formal relationship should thus, pursuant to the Adoption Act, not preclude their joint adoption of S.... By means of its brief conversation with S., the High Court has received confirmation of the impression given by the remaining evidence in the case of a girl who, during the last year or two, has developed considerable personal problems. She expresses insecurity and fear, and begs to be listened to. She wishes to be a normal girl. She wants no more court cases. She wants to continue living with her foster parents and feels encroached upon by [the applicant] and her children. S. has no clear understanding of what adoption really entails. When she has stated that this is what she wants, in the High Court’s assessment, this is an expression of her perception of adoption as an arrangement that would ensure that she be allowed to continue living with her foster parents without needing to fear that [the applicant] can demand that she move to Denmark. She perceives adoption as a guarantee of peace and quiet, allowing her once to live like a normal child. The High Court finds that it is S.’s relationship to her biological mother and the judicial proceedings which are the cause of her problems today. The emergence of [the applicant] has given S. a feeling of insecurity that she has difficulty in tackling. S. was at first curious to meet her biological mother. For some time, she had accustomed herself to the idea that her foster mother was not her biological mother. This process seems to have been supported and encouraged in a constructive way. The foster parents knew that this situation would arise and had already made contact with specialists to obtain advice about how best to handle it. Naturally enough, S. was motivated by her interest and curiosity to see the mother who had given birth to her. In the view of the High Court, S. had no idea that this meeting might manifest itself as a threat to the life she lived with the people she regarded as her parents and their family, her home, school, friends, etc.... The [first] meeting [held on 30 October 1999] must have been difficult for both parties, and [the applicant]’s actions can be explained by the loss she had felt for a number of years and by the fact that she had been informed only a few hours before the meeting that the daughter [bore a different Christian name]. However, the Court is in no doubt that the meeting was unfavourable for the relations between mother and daughter. S. was unprepared for the discovery that her mother did not want her to continue living with the foster parents and that she was apparently not accepted as S. The Court does not find it difficult to understand that S. was polite to [the applicant] during the meeting and said that she would like to visit her in Denmark. The girl was barely 10 years old. She was alone with her mother for the first time and, in this situation, would hardly want to hurt her mother’s feelings or oppose her directly. [The applicant] has explained that, in her struggle for her daughter, she has been obliged to use all means at her disposal, including the media, to promote her case. This may explain her way of acting but, in the view of the High Court, also shows her lack of ability or willingness to understand that the media coverage had a negative and stressing effect on S., who was recognised by fellow-pupils, neighbours etc., and who was reminded of what she experiences as an insecure situation. The media coverage was the main reason why S. changed schools in January 2001. Thus, [the applicant]’s struggle for what she regards as fair treatment has caused S. to suffer. [The applicant] fails to acknowledge that S. reacts negatively to this. [The applicant] has clearly stated that her aim is that S. shall come to live with her in Denmark and has demonstrated that she intends to employ all procedural means available in order to achieve this. In the High Court’s assessment, S. will be the loser in this process. She feels that her whole identity and existence are threatened and challenged, which makes her frightened, unhappy and insecure. S. is nearly 12 years old and is entering puberty. The High Court is convinced that she will suffer if the proceedings around her and [the applicant’s] struggle to get her back with her to Denmark do not end. In the further assessment, the High Court is divided into a majority [all three professional judges, both expert lay members and one lay member] and a minority [one lay member]. The majority [six to one] holds the view that new actions must be expected from [the applicant] unless adoption is authorised. A typical example is the civil action that has now been brought before City Court in which [the applicant] claimed that she holds parental responsibility. In addition, claims for access, etc. must be expected. Consent to adoption will put a stop to this development. Orderly conditions can only be achieved by allowing the foster parents to adopt S. The legal proceedings for S.’s return will then be discontinued... The majority holds furthermore the view that adoption would best ensure continued contact between S. and [the applicant] and her half-siblings. The foster parents have stated that they regard it as important for S. that such contact be maintained and developed. However, their condition is that it should take places on S.’s own terms. The majority perceives that the foster parents sincerely mean this, and that they feel it is in S.’s best interests to have such contact. They have themselves expressed the view that any hindrance to contact them would have a negative effect on S.’s relations with them in the long term. As an adoptive child, S. will have nothing to fear from [the applicant]. She will then know that it has been decided that she shall live with her adoptive parents, and that [the applicant] cannot do anything about it. The majority of the High Court regards it as natural and probable that S., within this framework, will gradually come to want more contact with her family in Denmark. If, on the other hand, consent to adoption is not granted, S. would continue to regard [the applicant] as a threat to her own existence and life situation and would be unwilling to have further contact with her. ... On the basis of an overall assessment, the majority of the High Court considers that it will clearly be better for S. to be adopted by her foster parents than to grow up as a foster child. On the basis of the majority’s assessment, the City Court’s judgment, in so far as it applies to consent to adoption, is upheld. Affirmation of the City Court’s judgment entails that the High Court shall not decide on access. A unanimous High Court holds the view that access should not be decided until a legally enforceable judgment has been passed. S. does not wish access arrangements to be made with [the applicant] at present. She has major problems and needs to be left in peace. In the assessment of the High Court, forced access with [the applicant] in such an interim period would have a disturbing effect on S. and reinforce the insecurity she feels as a result of the court cases. Access during the period until a legally enforceable judgment is passed is thus not regarded as being in S.’s best interests.” The applicant sought to appeal against the above judgment to the Supreme Court, requesting a declaration that the County Board’s decision of 19 November 1997 was null and void and an order granting her regular access. On 29 January 2002 the Appeals Selection Committee of the Supreme Court refused the applicant leave to appeal, holding that the appeal manifestly had no prospects of success.