J.M.N. AND C.H. v. NORWAY
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The first applicant, Mr J.M.N., is a Swedish national born in 1973. The second applicant, Ms C.H., is a Norwegian national born in 1976. The applicants live in Moelv. They were represented before the Court by Mr A. Westeng, a lawyer practising in Oslo. 3. The applicants have a son, X, born in August 2013. In 2006, the second applicant had a son, Y, with another man. The second applicant suffers from paranoid schizophrenia, a chronic mental illness requiring medication. X had a difficult birth with birth asphyxia and possible withdrawal symptoms from the second applicant’s medication, which she had taken during pregnancy. Six days after X was born, Ringsaker Child Care Protection Services (barneverntjenesten) decided to take him into public care on an emergency basis because of the second applicant’s poor mental health and the first applicant’s inability to understand that this could be hazardous for X. 4. The applicants’ appeal was rejected on 5 September 2013 by Oppland and Hedmark County Social Affairs Board (fylkesnemnda for barnevern og sosiale saker, henceforth “the Board”). The applicants were at the same time granted contact rights for two hours once per week with X. The applicants did not appeal against the Board’s decision. 5. On 10 October 2013 the Child Care Protection Services requested the Board to take X and Y into permanent public care, place them in foster homes and regulate the contact rights with the applicants. The applicants opposed the measures. 6. On 4 March 2014, the Board decided to take X and Y into permanent public care and place them in foster homes. Y was placed with his maternal grandmother, with whom he had already lived since he was a baby. X was placed in another foster home. The applicants were granted contact rights with X for two hours, three times per year, with a foster parent present if needed. The second applicant was granted more substantial contact rights with Y, including overnight visits. An oral hearing was held for two days and 12 witnesses were heard. Moreover, the Board took into consideration a report issued by an expert, psychologist M.H., who had observed the applicants during several visits with X. The report concluded that the applicants failed to provide X with personal contact and security and that there were flaws in the emotional and child development care. 7. The applicants appealed against the permanent public care order and the decision on contact rights only regarding X. 8. On 24 June 2014, the Board’s decision was confirmed by Hedmarken City Court (tingrett), after a two-day oral hearing where 12 witnesses and the expert M.H. were heard. The court was composed of one judge and two expert lay judges. The court found that the applicants were able adequately to take care of X’s basic daily needs. However, as a vulnerable child, X had a special need for contact and emotional interaction. Regarding the second applicant, the court took into consideration the report by M.H. where it was noted, inter alia, that she was strongly affected by negative psychosis symptoms such as passivity and social withdrawal. She was emotionally numb, with heavily reduced function levels. As to the first applicant, M.H. had found that he was not able to compensate for the first applicant’s deficiencies. Although he could take care of X’s material needs, he was unable to fulfil X’s need for contact and interaction. In view of this, the court concluded that the public care of X could not be terminated. 9. One of the expert lay judges dissented and expressed the view that the first applicant was able to compensate for the second applicant’s deficiencies, at least if support measures were put in place by the authorities. 10. On 10 April 2015, Eidsivating High Court (lagmannsrett) unanimously rejected the applicants’ appeal against the lower court’s judgment concerning the permanent public care order. The appellate court consisted of three judges and two expert lay judges. Although the applicants did not appeal against the judgment in so far as it concerned the contact rights, the appellate court considered the matter on its own initiative. An oral hearing was held for three days. The parties and 14 witnesses were heard. With regard to X, he was considered by the appellate court to be a healthy and normal child but, due to his infant trauma, still vulnerable. Moreover, it noted that the second applicant had a chronic mental illness. The court relied on the same expert, M.H., as the City Court. M.H. had observed visits between the applicants and X on several occasions and had issued a new report, dated 23 February 2015, where, inter alia, the following was noted: “[The second applicant] has, during the visits I have observed, occasionally been more active with [X] than during the visits I observed in 2013. But her demeanour during the visits is, as during earlier visits, with some exception, characterised by her subdued (avdempet), detached (følelseflat) and quiet (stille) behaviour. There are long pauses where it is completely silent in the room.” As to the first applicant, the report by M.H. noted, inter alia, the following: “[He] was very passive during both visits. He followed [X] around the room while [X] explored the various games, and sat down on the floor when [X] did. However, he sat down behind [X] so that there was no face-to-face contact between them ... He smiled at [X] but did not take the initiative to interact or answer or develop the various initiatives X took for interaction during play. The visits were characterised by [the first applicant] quietly observing X’s play and the [second applicant’s] and [X’s] play. When [the second applicant] during the last part of the visits became more passive, [the first applicant] did not take over, but remained passive and quiet.” The report concluded that neither parent was able to meet X’s need for contact and interaction. Even though the first applicant was considered to possess more parental ability, he was still not found able to compensate for the second applicant’s lack of such ability, in particular as he lacked in his ability for sensitive care (sensitiv omsorg). It was furthermore concluded by M.H. that neither parent saw, understood or responded to X’s signals. The first applicant still lacked an understanding of the second applicant’s mental illness and how it affected her capacity to care for the child. 11. The appellate court found that the expert M.H.’s observations were confirmed by the court’s own observations during the oral hearing. It further considered that support measures would not be sufficient because of the applicants’ lack of interest in such measures and lack of understanding of their deficiencies. Moreover, X had settled well in his foster home and developed positively. Thus, it was in X’s best interest that the permanent public care order be granted. 12. The applicants appealed to the Supreme Court (Høyesterett), submitting that the permanent public care order should not be granted. They did not complain about the contact rights. 13. On 23 June 2015, the Supreme Court refused leave to appeal. 14. According to Section 4-8(2) of the 1992 Child Welfare Act (lov om barneverntjenester), a newborn child may be taken into public care if it is highly probable that a move to the parents would lead to such a situation or risk to the child as mentioned in Section 4-12. 15. Section 4-12(a), of the Act stipulates that a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security the child needs, depending on his or her age and development. 16. According to Section 4-21(2) of the Act, the parties may request the County Social Affairs Board to terminate the public care as long as at least 12 months have passed since the Board or the courts last considered the matter. 17. Contact rights between a child in public care and his or her parents are regulated in Section 4-19 of the Act which stipulates that the extent of the contact rights is decided by the County Social Affairs Board. The private parties can demand that the matter be reconsidered by the Board as long as at least 12 months have passed since the Board or the courts last considered it (Section 4-19(5)). 18. Article 3 of the Convention on the Rights of the Child, in so far as relevant, reads as follows: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. “