GANDRUD v. NORWAY
Inadmissible
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
The applicant, Mr Aron Gandrud, is a Norwegian national who was born in 1970 and lives in Espeland, near Bergen. He is represented before the Court by A. Kayser, a lawyer practising in Bergen. In 1993 the applicant married Ms S.M.L., a national of the United States of America (USA) who was born in 1968. Together the couple got two sons, A. and T., who were born respectively in November 1995 and August 1997. Since the couple separated in 1997 the relation between the applicant and S.M.L. has been characterised by tense conflict, lack of cooperation and mutual distrust which they had sought to have solved by US and Norwegian courts. This involved disputes about such matters as parental responsibilities, daily care and access with respect to the children and prohibition on the parents to travel with the children abroad. In July 1998 the Bergen City Court concluded that, in view of the high level of conflict, S.M.L. should be the sole holder of parental responsibilities. It decided that the children should live permanently with her and granted the applicant certain access rights. In November 1999, while an appeal was pending before the Gulating High Court, the parties concluded a judicial settlement agreement according to which the parents should share the parental responsibilities, the mother should continue to assume the daily care and the father should have certain access rights. Both the applicant and S.M.L. had a difficult upbringing. At the age of 12 the applicant moved from his mother to live with his father. S.M.L. started abusing drugs at the age of 13. In 1998 the applicant met and started cohabiting with Ms K.B. and together they got two children, born respectively in December 1999 and July 2001. He has access to them twice a week. In May 2003 the applicant married Ms H., a marriage that was turbulent and lasted only for a few months. Since 2004 he has been living with Ms M. and her five boys from two earlier relationships. The boys have had access to their respective fathers. Since 1997 the applicant has been occupied full time at home, except for periods when he worked in a support home for mentally disabled persons. He has also worked with computer programming. In 2000 S.M.L. met Mr L. and they married the same year. They got two children, Z. (born in November 2000) and C. (born in July 2005). L. was educated as engineer and was formerly employed in the off shore oil industry. Because of his back problems and S.M.L.’s drugs abuse, he stayed at home as from 2005. They lived together with their two common children and with the applicant’s and S.M.L.’s two children. S.M.L.’s drugs abuse had involved most types of narcotic substances from hashish to heroin. She had been off drugs for shorter and longer periods, notably for several years before Z. was born in 2000. As from March 2003 her drugs abuse resumed, involving injections of heroin. In November 2003 S.M.L. was hospitalised for detoxification but left after five days. After six to seven weeks she continued to intoxicate herself. In April 2004 she was again hospitalised for detoxification, for a period of 10 to 12 days. From September to December 2004 S.M.L. was again hospitalised for the same reason. In the spring of 2004 the police caught S.M.L. in possessing drugs and she was imposed a fine. When she was absent from home it was L. who looked after the children, including A. and T. when they were not with the applicant. At some time during the winter or spring of 2005 S.M.L. found it necessary because of her drugs abuse problem and pregnancy with C. to transfer the daily care of T. and A. to the applicant. The boys then moved to the home of the applicant and M. and her five children. According to the applicant this happened in January 2005; according to S.M.L. it occurred in March 2005. S.M.L. had several relapses with drugs abuse, the latest in May/June 2005. In June 2005 she was compulsorily committed to a detoxification centre for six to seven weeks until she gave birth to C. so that she should avoid taking drugs during the last part of her pregnancy. Thereafter she stayed at home under supervision by the child welfare services, involving two home visits per week by those services and her giving several urine samples per week to them for monitoring. Both A. and T. had special care needs. A. was alert, somewhat serious and pensive, and had over the years experienced difficulties at school in terms of adaptation and social relations with other children. He had been seriously burdened by the parental conflict, disruption in contacts with key persons, his mother’s drugs abuse problem and the negative focusing by one parent on the other. He was struggling with concentration and performance at school. He had a need for security, stability and freedom from involvement in the parental conflict. As from October 2005 A. received regular counselling from a psychologist. T. was a multi handicapped child, who had a brain damage and was diagnosed as suffering from the Lennox-Gastaut Syndrome (one of the most serious forms of epilepsy) and who since the age of one had had epileptic fits. He also suffered from serious mental disability, had great deficiencies in his functional and cognitive development and his mental faculties corresponded to those of a child less than one year of age. He was totally unable to assess the consequences of his acts and therefore had to be followed constantly. At times T. had been attached or tied and equipped with a helmet in order not to cause injury to himself or to others. The support apparatus had provided S.M.L.’s home with a sprinkle bed so that T. needed not be secured or attached. He went to a specialised school and spent forty days and nights every six months at a support centre with specialised personnel. In August 2005 S.M.L. wished to resume the daily care for T. and A. A returned to S.M.L. but T. continued to live with the applicant. On 6 September 2005 the applicant collected A. at his school and objected to them moving back to S.M.L.. From the same date until 20 and 25 October 2005, respectively, the applicant kept A. and T. from going to school and refused S.M.L. to have access to them. In the meantime, on 29 August 2005, the applicant made a request to the Bergen City Court for an interlocutory injunction to the effect that A. and T. should live permanently with him and that S.M.L. should be granted a right of access under supervision. On 27 September 2005 S.M.L. requested an interim decision for the daily care and the parental responsibilities in respect of the children to be granted solely to her and for the applicant to be accorded access rights. On 19 October 2005 the City Court held a preparatory meeting without the parties succeeding in reaching an agreement on temporary arrangements. On 24 October 2005 the applicant claimed the daily care and joint parental responsibilities and suggested that S.M.L. be granted access rights. After several writs had been submitted, S.M.L. filed a new request for an interim decision on 28 October 2005. On 17 November 2005 the City Court issued an interim order that S.M.L. should assume the daily care until a decision had been taken in the main proceedings and that, until such time, the applicant should not have access to A. and T. The City Court held an oral hearing from 5 to 7 December 2005, during which both parties represented by a lawyer and twenty-one witnesses were heard. By a judgment of 22 December 2005 the City Court, sitting with one professional judge and two expert lay judges (both psychologists) ordered that S.M.L. should be the sole holder of parental responsibilities and should assume the daily care in respect of A. and T. It granted the applicant access rights at the ordinary level. By way of introductory note, the City Court remarked that both parties appeared genuinely fond of their children and wishing them well. As a starting point, both parents seemed able to care for the children in a satisfactory manner. The City Court further found it established that on the whole both children had had regular contacts with both parents after their separation except for certain periods when the mother and the father had denied one another access to the children. The children were also well attached to the applicant even though it was mainly the mother who, except for a period in 2005, had assumed the daily care for them since the break-up of the parents’ relationship in 1997. The children were familiar with both parents’ housing environment, their new partners and step brothers and step sisters. A risk of change of environment could therefore not be a decisive consideration. It was difficult to predict who of the parents would contribute to giving the children the greatest possibility to have contact with both parents. Each of them had at periods refused the other to have access to the children. The level of conflict between the parents had made it difficult for them to communicate and cooperate. The conflict, which could be attributed to both parties, had had damaging effects on A., for which they both were responsible, according to Psychologist G.’s witness statement. Both parents were responsible for reducing the level of conflict. The City Court considered that S.M.L. was just as able as the applicant to take care of T.’s special needs resulting from his brain damage and epilepsy. It attached weight to the fact that the children for most of their lives had lived with their mother, expect for a longer period in 2005 when they had lived with their father according to an agreement between the parents. The City Court observed inter alia that witnesses of the child welfare services and the Sudmanske Family and Child Centre had stated that there was no suspicion that S.M.L. currently abused drugs and that it was considered that she was able to assume the care in a satisfactory manner. The City Court found established that her urine samples had proven negative and she had not abused drugs for the last six months. At present it did not appear that S.M.L. had a drug abuse problem that could have a decisive effect on her ability to assume the care. There was however uncertainty as to whether she in future would manage to refrain from taking drugs. Until the summer of 2006 the child welfare services would continue to supervise the conditions in her home. The City Court noted that A. had clearly stated to the presiding judge a wish to live with his mother together with T. Since A. was 10 years old his opinion should carry great weight. T., on the other hand, had a brain damage and it had therefore not been possible to hear his views. The City Court further noted that from 6 September 2005 the applicant had kept the children back from school and their mother for 1½ month. It found it particularly unfortunate that he in this way had interfered with their right and duty to receive education. The City Court did not accept his explanation that he did not want the children to be used as a weapon in the parental conflict; his conduct suggested that he was unable to put his children’s interests before his own interests. Considering the case as a whole, and having regard to the best interests of the children, the City Court held that they should live permanently with S.M.L. In addition to the applicant’s above-mentioned conduct in September 2005, the City Court attached decisive weight to A.’s wish to live with his mother and to the fact that, with the exception of a period in 2005, for most of the time since the couple’s separation in 1997 she had assumed the care for the children. As regards the applicant’s access to the children, the City Court found no special reasons pertaining to the applicant suggesting that he should not have access to them. After conversations with A., witness expert, Psychologist G. had stated that access to the other parent would not be negative for him provided that he had a foreseeable and secure care environment. A. had also said to the presiding judge that he wished to have access to his father. Against this background, the City Court granted the applicant access to A. and T. at the ordinary level from Friday night to Monday morning every other week-end, two weeks every summer, every other Christmas and Easter, every other autumn and winter holiday. It found no grounds for making supervision a condition for access. Finally, the City Court held that it would be in the children’s best interests that S.M.L. be the sole holder of parental responsibilities. In this connection it placed weight on the parents’ inability to communicate and cooperate due to the very tense and deadlocked conflict between them. Such cooperation was absolutely necessary especially in relation to the medical treatment and school education of T., who suffered from severe brain damage. It also had regard to the fact that the applicant as late as August 2005 had changed T.’s school without the mother’s agreement and had kept both children away from school for a longer period in the autumn of 2005. Following the City Court’s judgment, the applicant’s access to A. and T. was implemented accordingly until June 2006. In view of two reports of concern, one made by A.’s school on 1 June 2006 and another by T.’s school on 2 June 2006, S.M.L. and her lawyer asked for a meeting with the applicant and requested an explanation. The applicant responded that he did not wish to have any such meeting before the appeal hearing, whereupon S.M.L. denied him access. No access took place until the High Court’s judgment. The precise contents of these reports of concern have not been disclosed to the European Court. According to the applicant’s appeal submissions to the Supreme Court, S.M.L.’s refusal to let him have access to A. and T. after June 2006 was essentially due to his alleged failure to follow-up adequately an episode concerning damage to one of A.’s teeth during his stay at the applicant’s home. A little corner of the tooth had broken off and this the applicant had incidentally mentioned to S.M.L. once he met her in the local grocery. The applicant appealed against the above judgment to Gulating High Court. After holding an oral hearing from 19 to 22 September 2006, the High Court, sitting with three professional judges and two expert lay judges (one psychologist and one psychologist specialist), by a judgment of 5 October 2006 upheld the City Court’s judgment with regard to daily care and parental responsibilities and reduced the applicant’s access rights (applying the relevant provisions of the Child Act 1981 (barneloven)). The High Court saw no reason to hear anew A.’s views on where he should live and on access while noting that neither of the parties had wished it to do so. In its reasoning, the High Court pointed out that an assessment ought to be made of the best interests of the children in light of the case as a whole. This assessment ought to take into account such factors as who of the parents would be most able to provide the best physical and psychological care for the children, including their following-up in the short term and long term, draw limits, shield them against the parental conflict and contribute to the best possible parental contact. Regard should also be had to any risk of change of environment and the need to ensure stable conditions of upbringing. Since both children had special care needs, especially T. who would need public support measures, it would be of particular importance who of the parties was able to understand the children’s needs, to cover those needs and to do so in cooperation with the public services. Since in the present there was a judicial settlement agreement of 1 November 1999, whereby S.M.L. should assume the daily care, the parents would jointly assume parental responsibilities and the applicant would have access rights basically at an ordinary level, the question was whether concrete and demonstrable reasons for departing from this arrangement. Since they were born, the children had mainly lived with S.M.L., apart from a period in 2005. The High Court found that there were no decisive reasons for altering the children’s place of residence. Since S.M.L. had got her drugs abuse problem under control, her willingness and ability to provide the children with the best possible care and follow-up did not leave much to be desired. She had cooperated well with the social support apparatus and did all she could in order to provide the best possible conditions for the children’s upbringing. An additional positive factor was her husband. As regards the applicant, the High Court had doubts about his abilities to assume the care for the children. There was no doubt that he was very fond of his children and wished to give them the best he could, both emotionally and materially. But it was clear that his cooperation with public institutions had not been of the best and that this had led him to act in a somewhat rash manner. In this connection the High Court referred to the fact that, without having conferred with S.M.L. and without having sought professional advice, he had changed school for T. because of his disagreement with the school. This had been especially unfortunate for T., who due to his handicap had special needs for stability and security. Thereafter, he had kept both children away from school. The applicant’s cohabitation with M. and her children was a positive factor. M. appeared to be a caring person both able and willing to contribute positively to the applicant’s children. However, in view of the historical background, it would be premature to say anything about how stable this relationship was. Both parties had refused one another access to the children and were in this respect on an equal footing. In conferring the daily care of the children to S.M.L., the High Court presupposed that she would actively contribute to the access arrangements being implemented in the best possible manner for the children. In the interest of the children she ought to comment on their access with the applicant in a positive manner in their presence. The level of access fixed below would make it difficult for her to refuse access at her own whim. This was so especially for as long as the applicant was cohabiting with M., who in the worst case scenario would represent a safety valve for the children’s welfare. What militated particularly against S.M.L. being a care person for the children was her very negative attitude towards the applicant, both in her conduct vis-à-vis him and the way she had commented on him vis-à-vis the children. She had in addition contacted persons closely related to the applicant and had made very derogatory remarks about him. Her conduct in this regard could not be justified by her negative experiences of the applicant. The High Court further had regard to A.’s wishes and found no reason for separating the brothers who had a close contact. As regards housing conditions, family and social network, there was no information permitting to distinguish between the parents. In light of the above considerations, the High Court upheld the City Court’s conclusion that the children should live permanently with their mother. As regards parental responsibilities the High Court observed that it seemed unlikely that the parents’ ability and willingness to cooperate would improve. Both children, especially T., had particular needs and the parent assuming the daily care would to a large extent have to cooperate with different instances of support. As to the further question regarding the applicant’s access to the children, the High Court unanimously agreed that the arrangement under the 1999 judicial settlement agreement and the City Court’s judgment ought to be amended. With respect to T., the High Court observed that support measures by the child welfare services had been granted involving him spending every fourth week in a support centre. In view of his need for stability and foreseeability, it would be a burden to him if he were to have access to the applicant at the ordinary level. Because of T.’s mental condition, it could be questioned to what extent he was able to understand and enjoy this. Moreover, the parents were unable to cooperate about T. and to agree on how he should be treated. When staying with the applicant, T. would experience a different regime from that of S.M.L. and the support centre. This he would perceive as being very negative. Therefore the High Court considered that the applicant’s access should be reduced to one Sunday from noon to 6 p.m. every four weeks. Since he would stay every four weeks at the support centre, the applicant’s access should take place on the Sunday two weeks after so that he would spend every other week-end at S.M.L.’s home. With respect to A., the High Court was divided (five votes to one). The majority considered that in view of A.’s particular need for stability and foreseeability after the long standing parental conflict, his access to the applicant would be so damaging that it ought to be restricted. In this connection the High Court referred to the applicant’s having been unable to care for A.’s needs in an adequate manner. It decided that he should have access to A. from Saturday 10 a.m. to Sunday 6 p.m. every four weeks. The minority (one of the professional judges) did not consider A.’s access to the applicant as being negative for A. S.M.L.’s negative focussing on the applicant made it necessary to enable A. to get the opportunity to know his own father. That the applicant currently lived with M and her five children would also be an asset for A., who in addition would get the opportunity to know his two half-siblings whom the applicant had got with Ms K.B. and to whom the applicant had access every other week-end. As to the argument that A. had been tired after spending week-ends with the applicant, the minority considered that access should end on Sunday at 6 p.m. but should continue to start on Friday after school and otherwise follow the ordinary arrangement provided for by law. On 6 December 2006 the Appeals Leave Committee of the Supreme Court refused the applicant leave to appeal. In so far as the appeal concerned the application of the law on the issue of daily care, the Committee found it obvious that the appeal had no prospects of success. As for the remainder, the Committee did not consider that a different conclusion could be reached without hearing oral evidence anew on a potentially decisive point or that hearing the appeal was warranted by the general interest or other special reasons.