CASE OF M.L. v. NORWAY
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
5. The applicant, born in 1987, is the mother of two children, who are half-brothers. Her older son, born in 2008, was taken into permanent public care by the authorities in 2010 and placed with the applicant’s mother and stepfather. Her younger son, X, was born in February 2012. The applicant has been diagnosed as having a hyperkinetic disorder and has had a history with psychiatric treatment. 6. On 15 June 2012, after receiving notifications from the authorities and a private individual regarding the applicant’s inability to take care of X, the municipal child welfare authorities decided to place him in emergency foster care. On 29 June 2012, that decision was upheld by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker). 7. The emergency placement was followed up by the child welfare authorities with a petition of 6 July 2012 to the Board for a public care order. The authorities requested that X be placed in a foster home and that the applicant be granted supervised access rights. Concerning the question of where he should be placed, the authorities essentially stated that the applicant’s mother and stepfather had previously been approved as foster parents for the applicant’s older son (see paragraph 5 above). However, the ability to cooperate was necessary for those wanting to be foster parents and there had been some conflict between the applicant’s mother and the authorities. Moreover, the applicant’s mother and stepfather were considered to be relatively old (having been born in 1962 and 1955, respectively) to serve as foster parents to a small child, and the applicant’s mother had recently been ill. Furthermore, the applicant’s mother had not made visiting the applicant’s younger son her priority. In these circumstances, it would not be in X’s best interest to be placed with his maternal grandmother and her husband – the applicant’s mother and stepfather. 8. The applicant objected to the request for an order of public care in respect of her younger son X and maintained that, if such an order be granted, he should be placed with her mother and stepfather. In her view, the child welfare authorities had not properly evaluated that possibility. Her mother’s alleged inability to cooperate had in fact merely been a question of disagreement. The applicant’s mother and stepfather had been aware of the applicant’s difficulties and had helped her. They had also been approved as foster parents to the older son, who had developed well and had positive references from his kindergarten. Their age was not in itself of importance, given that other circumstances were in favour of their acting as his foster parents. To place X with them would be more stable and less stigmatising than an external placement. 9. On 26 October 2012, after hearing the parties and ten witnesses, the County Social Welfare Board granted the request for an order of public care. It decided that X should remain in the home in which he had already been placed as an emergency measure. 10. In its reasoning regarding the issue of the choice of foster home, the Board firstly noted that it was accepted that the applicant’s mother and stepfather had been generally approved as foster parents in connection with the care order in respect of the older son in 2010, but that this issue had to be assessed in view of the current situation, taking into account the best interest of the younger son X. On the specific question as to whether it would be in his best interest to be placed with them, the Board stated the following: “The Board sees that there are many positive sides to a placement within the family network, which justifies that such a placement be considered. The Board considers that the grandmother and her husband in many respects are well suited as foster parents for [X]. [According to] the grandmother, they have been asked whether they [are willing to] adopt [the older son]. Placing [X] with his maternal grandmother and her husband would mean that [the two sons] would grow up together. As the Board has previously mentioned, [X] may be inherently vulnerable. This is reinforced by the fact that the Board finds that it cannot be ruled out that the boy may have attention-related difficulties. Reference is made to the emergency foster mother’s description of the boy’s restlessness. In addition to the mother’s diagnosis and her considerable difficulties, it has emerged that her brother has also been diagnosed with attention deficit hyperactivity disorder (ADHD) and has considerable difficulties. This means that there is a risk of the boy having the same type of difficulties. The Child Welfare Service has referred to problems concerning cooperation between the maternal grandmother and agencies such as the Child Welfare Service and health workers. The Child Welfare Service in [the municipality] has also reported difficulties regarding cooperation. On the basis of the statements of the Child Welfare Service and the [younger son’s] health visitor, the Board finds that there have been challenges as regards their cooperation with the grandmother. However, the Board finds no grounds for concluding that these problems have been as serious as they might have initially seemed, and the grandmother’s explanations are to a certain extent plausible. The Board nonetheless finds reason to conclude that there have been some difficulties regarding cooperation. The grandmother has seen that [the applicant] has not been capable of caring for [the older son], and she has also been concerned about [the applicant]’s ability to look after [X]. In her statement to the Board, she still seemed to be uncertain about [the applicant]’s ability to care for the boy. She nevertheless largely left [the applicant] and the child to themselves shortly after the birth while they were staying with her. The Board further remarks that the grandmother had not arranged with the Child Welfare Service in [the municipality] that [the applicant] and [X] were to move in with her and [the applicant’s older son]. [The applicant] moved out of her mother’s house, together with [X] after a short period, even though the grandmother realises that [the applicant] faces challenges as regards running a home. The Board has noted that the grandmother has not attended the contact sessions and thus not seen [X] since he was placed in care. The grandmother and her husband are relatively old to be foster parents to such young children. [The applicant]’s mother was born in 1962 and her husband in 1955. The Board considers it likely that [X]’s placement in care will be long-term. Although age alone is not decisive in relation to the choice of foster home, it is a factor in the assessment. The maternal grandmother and her husband already have a foster child who is four years old, and it will require a lot of energy on their part to have another foster child ... who is also younger than the one they [already] have. Taking care of [X] could also affect the situation of [the older son], who they already have care of and must look after. The Board has found that its doubts about placing [X] with his grandmother and her husband are so serious that the disadvantages outweigh the advantages. The reason is the uncertainty relating to the boy’s vulnerability and the strain that another foster child would entail, regardless of whether or not this child has special needs, the grandmother’s and her husband’s age and certain difficulties regarding cooperation.” 11. On the basis of the above, the Board arrived at the conclusion that X should not be placed with his grandmother and her husband. On 27 January 2013 X was transferred from the emergency home to a foster home. 12. The applicant appealed to the local City Court (tingrett), which held an oral hearing from 4 until 6 June 2013. In accordance with section 36-4 of the Dispute Act (see paragraph 22 below), the court’s bench comprised one professional judge, one psychologist and one lay person. It heard fourteen witnesses in addition to the parties. The applicant was present, was represented by counsel, and gave testimony. 13. In its judgment of 22 July 2013, the City Court upheld the County Social Welfare Board’s decision in full. 14. With respect to the applicant’s caring skills and X’s care needs, the City Court reiterated the findings of the County Social Welfare Board and the court-appointed expert. It concluded that there were beyond doubt serious deficiencies in the applicant’s daily care of and personal contact with X, and that it was necessary to place him in public care. 15. Turning next to the question of whether he could be placed with the applicant’s mother and stepfather, the City Court observed that they had been approved as foster parents when the applicant’s older son had been placed with them in 2010. It further noted that there were advantages to a child moving to a foster home comprising family members. X would in that case be placed within the family network. It had moreover been documented that the applicant’s mother and stepfather might well be suitable foster parents for him. Furthermore, it would be an advantage that the two sons would be allowed to grow up together. 16. The City Court nonetheless found that, in this case, there were no grounds for deciding that the applicant’s younger son should be placed in foster care with his maternal grandmother and her husband. In addition to referring to the Board’s assessment (see paragraph 10 above), the court quoted excerpts from the court-appointed expert, T.B., a specialist in psychology. 17. The expert did not recommend the placement of X with the applicant’s mother and stepfather. In the report she stated, inter alia: “Several factors have emerged that may have a bearing on the assessment of whether [X]’s grandparents can be his foster parents: Firstly, the grandparents’ age has been taken into account in the assessment. The undersigned does not see this as a decisive factor. Furthermore, it has been emphasised that [X]’s step-grandfather has himself mentioned that he is getting older, and that this may be perceived as an expression of doubt on his part. This has not had a decisive bearing on the undersigned’s assessment, either. The child’s step-grandfather comes across as an honest, responsible and reflective man who would be an excellent foster father for [X], even though he expresses some doubts himself. In addition, it has also been suggested that the Child Welfare Service has had difficulties in cooperating with the foster mother in respect of [the applicant’s older son]. To the undersigned, these so-called ‘cooperation difficulties’ seem to be nothing more than disagreements/challenges that the parties are capable of handling and working out. That is how the challenges are described by both the representative of the Child Welfare Service in [the municipality] and the grandmother herself. It must also be added that [the applicant]’s mother and stepfather cooperated with the undersigned in an impeccable manner during the investigation. They have had many difficult challenges over the years, and it would almost be strange if there had been no ‘friction’ during all this time. This has therefore not had any bearing on the undersigned’s assessment of the question of [X]’s foster home placement. What has been important to the undersigned’s assessment of this question, however, is, first of all, that [the applicant] has very different emotional ties to her two sons ..., in the sense that she seems to have renounced her role as mother of the [older son], while she must still be expected to make an effort to have as much contact as possible with [X]. This will necessarily be a problem for both boys if they are to live in the same foster home. Furthermore, there is good reason to believe that, if [X] is placed in foster care with [the applicant]’s parents, this situation will ... represent an opportunity for the contact between mother and child to constantly increase in scope, and thus be a hindrance to [X] in his development of a good attachment to his foster home. For the undersigned, this concern is based, not least, on the fact that [X]’s grandmother has clearly expressed to the undersigned that she primarily wants to be a mother to [the applicant]. However, the argument in favour of letting [X]’s grandmother and step-grandfather be his foster parents is of course the fact that [he] will then get to grow up together with his (half) brother. The undersigned is nonetheless of the view that this cannot carry more weight than the concerns mentioned above. This means that placing [X] in foster care with his grandparents is not recommended.” 18. Expert T.B. had upheld these assessments in her report during the main hearing, but also stated that there were “dilemmas” if the applicant’s mother and stepfather were to be chosen as foster parents. The City Court shared the expert’s concerns. Moreover, it pointed out that the two children had different needs and challenges. Although the older brother, according to the information received, was happy in his foster home with the applicant’s mother and stepfather, X, despite his young age, had experienced two broken relationships – firstly with his biological mother and then with his emergency foster mother. He had now formed an attachment with his new foster mother after he had moved into his latest foster home in January 2013. There would be a risk of “contact injury” (kontaktskade) – that is to say a serious impairment to his ability to form attachments – if he were to experience another broken relationship. From the foster mother’s testimony it was clear that he was developing well in the foster home and that he was happy and thriving. The City Court moreover emphasised the challenges associated with having two small boys of pre-school age living with people of the age of the applicant’s mother and stepfather. In addition, there was the issue of the applicant’s very different respective emotional relationships with the two boys, which also entailed special challenges, particularly if X were to be placed in foster care in the same home as that of his older brother. Overall, the City Court agreed with the County Social Welfare Board and the court-appointed expert that the applicant’s mother and stepfather should not be the foster parents of the applicant’s younger son. 19. The applicant lodged an appeal against the City Court’s judgment in so far as it concerned the choice of foster home. The High Court (lagmannsrett) refused leave to appeal on 15 October 2013, and on 3 December 2013 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) rejected the applicant’s appeal against the High Court’s decision.