I.D. v. NORWAY
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary
1. The applicant, Ms I.D., is a Norwegian national, who was born in 1989 and lives in F. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms R. Arnesen, a lawyer practising in Bergen. 2 3. The applicant is the mother of X, a girl born in August 2011. The child was born out of wedlock and the parents do not live together. Prior to giving birth to X, the applicant moved to L, in the county of Nord-Trøndelag, where her mother lived. 4. On 13 September 2011, the family clinic (“familieklinikken”) at the hospital in L notified the child welfare authorities that the mother needed help beyond what could be offered by the health services. On 19 September 2011, the child welfare authorities received a notification from the psychiatric clinic at the same hospital, being worried about the applicant’s mental health and urging the authorities to give priority to the matter. On 29 September 2011, the public health nurse contacted the child welfare authorities, expressing concerns as to the applicant’s mental functioning and her ability to understand X’s signals and needs. The public health nurse also asked the authorities to give priority to the matter. 5. Upon these notifications, the child welfare authorities were in contact with the applicant, they held consultations with her, and observed the interplay between her and X. During this period, the applicant and X were also treated in hospital; first the applicant at the psychiatric clinic and subsequently both of them at the child clinic (“barneklinikken”), because X had lost weight. They were discharged on 23 December 2011. On 4 January 2012, the child welfare authorities offered the applicant a place with X at a family centre. She declined the offer. 6. In January 2012, X had again lost weight, and she and the applicant were referred to hospital. The applicant was for the second time offered a place at a family centre, but declined the offer. When X was to be discharged from the hospital, on 13 January 2012, the child welfare authorities made an emergency decision to take the daughter into public care. On 16 January 2012, the applicant accepted the offer to stay at the family centre, where she stayed with X from 26 January 2012 until 26 April 2012. After the stay, the authorities offered further assistance, but the applicant declined. The applicant was called in for a meeting with the authorities, but did not appear. In a letter of 24 May 2012 from the applicant’s lawyer, it was stated that she did not want assistance measures from the authorities. 7. On 5 July 2012, the child welfare authorities in L petitioned the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) in Trøndelag for an order to place X in public care. 8. In August 2012, the applicant and her mother moved together to R, in the county of Oppland. 9. On 25 January 2013, the Trøndelag County Social Welfare Board decided to place X in public care and granted the applicant the right to visit her four times a year, each time for three hours. It noted that X was a vulnerable child, who had experienced disorder (“uro”) and change of carers. The Board held that the first months of a child’s life are paramount for the connection that is to be established between the child and the care provider. Insufficient connection may put the child’s further development at risk, and this includes risks of developing psychiatric problems. 10. Weight issues no longer posed a problem. The concerns related to X’s functioning with the applicant. X had developed positively during the stay at the family centre, but negatively in the period that followed the discharge. 11. Even if X was a vulnerable child, she was not considered to be a child with care needs which were out of the ordinary. However, the applicant was so immature and insecure as an adult, and so passive as a carer, that X’s fundamental needs of personal contact and security were not met. If the current situation were to continue, it would be detrimental to X’s further development. 12. According to staff at the family centre, whilst clearly loving X, the applicant showed little understanding of the child’s spectre of feelings and had major difficulties in reflection on and understanding of X’s different signals. In sum, the applicant’s own functioning was characterised as vulnerable. The Board considered that she had suffered from considerable mental health problems, but had declined recommended treatment of the underlying causes. The applicant had no education or work and a limited support network. She had had considerable problems relating to appointments and had appeared rigid and immature to the Board. Throughout all of X’s life, she had shown that she had difficulties with taking advice. Although the applicant had periodically shown willingness to accept advice, she had lacked the capacity to follow it. 13. The County Social Welfare Board found that further assistance measures would be insufficient to remedy the deficiencies in X’s care. The applicant had received comprehensive assistance measures over a period of time. The family centre had represented the most extensive assistance offer at the child welfare authorities’ disposal, and the applicant had been unable to follow even very specific advice. She did not appear to be particularly motivated for future co-operation with the authorities, and was considered as a young and immature mother. Whilst the Board recognised that her abilities to provide care might develop, it considered that achieving this would be a demanding and long-lasting process. 14. In conclusion, the County Social Welfare Board found that it would be in X’s best interest to be placed in public care. She needed carers who could offer a secure, predictable and stable daily life, and who were clear and consistent. It was decisive for X to be given carers who could offer social, linguistic, motor and cognitive stimulation, which would require that they could see and give priority to her needs. The applicant was not able to do so. 15. After the decision, the applicant and X lived in hiding from the child welfare authorities. 16. The applicant brought the Trøndelag County Social Welfare Board’s decision before the District Court (tingrett), which appointed a psychologist as an expert. This expert was, however, released from his appointment when it became clear that he was unable to establish contact with the applicant, as she was living in hiding. 17. At the oral hearing before the District Court, on 26 June 2013, the applicant was present. On the second day of the hearing, the court decided to postpone the proceedings as an agreement was reached that a new psychologist should be appointed as expert and further assess the care situation. The District Court also, on 28 June 2013, suspended the implementation of the County Social Welfare Board’s decision. 18. In August 2013, the applicant moved to F, in Sogn and Fjordane county, where she had two brothers. 19. The new expert delivered his written opinion to the District Court on 3 October 2013. 20. From the expert opinion, the child welfare authorities learnt of X’s whereabouts, and, on 4 October 2013, took an emergency decision to place her in foster care. The County Social Welfare Board approved the decision on 7 October 2013 and X was placed at a location without the applicant being made aware of her whereabouts. 21. The proceedings before the District Court were resumed on 15 October 2013. 22. In its judgment of 25 October 2013, the District Court, composed of one professional judge, one psychologist as expert judge and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 53 below), upheld the decision of the County Social Welfare Board. 23. The District Court stated that X appeared to have developed adequately, but still found it likely that she was vulnerable due to her experiences with moving and a mother with limited parenting abilities. There were shortcomings in the applicant’s capacity to provide care. Although she had no clear medical diagnosis, she had personal problems and her ability to reflect was weak (“svak refleksjonsevne”). Professional assistance would be required if the applicant were to develop into a person with good care skills, who would also be able to handle challenging situations. The applicant had shown little understanding of her need for such assistance. In conclusion, the District Court found that there were serious deficiencies in the applicant’s parenting skills as far as the personal contact and security required for X were concerned. 24. As to assistance measures, the court-appointed expert had concluded that these would not remedy the challenges the applicant faced in her care of X. During the court proceedings, the applicant had declared that she did not need assistance, but that she would not oppose it. Although the District Court considered that the applicant would be able to develop, it concluded that she did not at that time have the necessary capacity for introspection and understanding of her need of help (“selvinnsikt og erkjennelse”). Against that background, it concluded that further assistance measures would not be in X’s best interests. 25. The applicant did not appeal against the District Court’s judgment. 26. In 2015, the applicant requested that X be returned to her. The case was heard by the County Social Welfare Board on 21 and 22 April 2015. The applicant met with her counsel and gave testimony. Nine witnesses were heard. 27. On 4 May 2015, the County Social Welfare Board rejected the request for X’s return, but increased the contact rights to five times per year, each time for three hours. 28. With respect to X’s needs, the Board noted that when the initial decision to place X in public care had been adopted, the Board had found that X was a vulnerable small child that had experienced disorder and changes of carers in her short life, but that she did not have special care needs. The District Court had at that time similarly found that X did not have special care needs, even though she was vulnerable. However, the Board assessed that subsequent to the care decisions, clear signs that X had been marked of living in serious neglect when cared for by the applicant, had come to light. She went up to strangers and called them “mummy”; had no protests against leaving the applicant; and did not give any signals when she was awake or woke up at night. Moreover, she was rocking (“rugget”) (for instance when the doorbell rang, she would hide under a table and rock), and it was difficult to obtain contact with her when it occurred. The foster mother had additionally described how X had been liable to knock herself on the head. 29. In a medical discharge summary from the local Children’s and Young People’s Psychiatric Out-Patient Clinic (Barne- og ungdomspsykiatrisk poliklinikk, BUP), dated 4 February 2015, X had been diagnosed with “other reactions to severe stress”. Her kindergarten had additionally described her as roaming (“flakkende”) and difficult to keep calm during meals and to involve in playing. The kindergarten had given X specific follow-up and offered her special pedagogical help ten hours per week. 30. In the Board’s view, X had, at the time when she had been placed in public care, beyond doubt shown clear symptoms of abnormal development (“skjevutvikling”) and clear signs of attachment problems (“tilknytningsproblematikk”). One of the psychologists had been of the view that X would probably have developed an attachment disorder (“tilknytningsforstyrrelse”), had she not been placed in public care. After the placement, however, X had developed positively in all areas. Despite the positive development she was still a vulnerable child with special needs for appropriate care. Consequently, her carers would need more than ordinary caring skills. 31. The applicant had also developed positively, she was older and her life had become more orderly. She appeared somewhat more mature, and she had had positive and promising recent experiences with work, albeit only for a very short time. 32. However, this development concerned primarily external structural conditions such as a more stable living situation and adaptation to social life. The applicant’s functioning still had to be characterised as vulnerable. For a number of years she had had issues with adaptation (“tilpasningsvansker”) and problems with her mental health. She was to a large degree evasive and distrustful and suffered periodically from depression issues. Although the applicant had become less isolated and no longer suffered from anxiety problems, the stability of her mental health was still uncertain. 33. Further, the Board reiterated that when the decision to place X in public care had been adopted, the Board had considered that the problems had primarily been at the level of emotional care. The applicant had major difficulties as to reflection and understanding of X’s different signals. 34. The appointed psychologist had described that when the applicant had to take care of X on her own, she was incapable both as concerned physical and psychological care and stimulation. As the applicant did not understand that she needed help, it would be difficult to defend the appropriateness of her having the care. In many ways, the applicant was herself in need of help, as she had a relatively weak general functioning and ability to adapt. 35. Moreover, the appointed psychologist had observed the interplay between the applicant and X during two visits and compared his own observations to information given by the child welfare authorities, the municipal health service and the family centre. The information gave a relatively unambiguous picture of the applicant as a person with low stamina and tolerance of frustration, and who showed little reflection about herself as a carer as she had difficulties in seeing the child and its needs. 36. The Board found that the prior evaluations of the applicant’s caring skills indicated that she had fundamental shortcomings in her care abilities that were likely connected to her personality and her difficult background. 37. Only a short time had passed since the decision of public care had been made, and the Board noted the difficulty inherent in attempting to change shortcomings that were connected to fundamental personality traits. The applicant’s emotional caring skills did not show signs of improvement and it was difficult to see that she had a greater understanding of the care issues; she continued to be of the opinion that her care had been appropriate when X lived with her. The applicant had still a considerably reduced ability for reflection and mentalisation concerning X’s needs and signals, and she demonstrated little insight as to the challenges X’s return would pose. The need for assistance measures would be so comprehensive that the applicant would need a person to assist her most of the day. This went beyond what the child authorities could offer. 38. The County Social Welfare Board additionally concluded that X had become so attached to the foster home that it would be detrimental to her further possibilities of developing if she were to be returned at that time. Although she had developed normally and well, another move would imply a clear risk for her and the danger of new attachment problems. 39. The decision of the County Social Welfare Board was brought before the District Court, which appointed a psychologist as expert. The expert delivered her report on 26 August 2015. 40. The District Court, again composed of one law judge, one psychologist and one lay person (see paragraphs 22 above and 53 below), heard the case from 7 to 9 October 2015. The applicant met with her counsel and gave testimony. The court-appointed expert gave oral testimony. Nine other witnesses were heard. 41. In its judgment of 23 October 2015, the District Court confirmed the Board’s decision of 4 May 2015. It observed at the outset that the Board, when deciding on the public care in 2013, had found that X did not have care needs out of the ordinary (see paragraph 11 above). However, she had been described as a child who had received marginal care and was therefore vulnerable. 42. The psychologist appointed as court expert (see paragraph 39 above) had described X as adequate for her age in spite of the insecurity and vulnerability she had developed when staying with the applicant in the beginning of her life. When she had arrived in the foster home in 2013, she had not asserted her needs and the foster parents had to teach her how to do so. She had been uncritical of strangers, she whimpered to get attention, and hit herself on the head when she was tired. In order to establish attachment to the foster home, it had only been the foster mother who had changed her diapers, fed her, put her to bed and comforted her. When the expert delivered her report in August 2015, X functioned very well in the foster home, and she was able to distinguish between the foster mother and the applicant as different mothers to her. In the kindergarten, special arrangements were made for X as new situations could be difficult for her. Apart from this, she functioned well in the kindergarten. The expert concluded that X was well-functioning in many ways, but that she, based on the difficulties and symptoms of development disorder she had shown, was still a vulnerable child who had special needs for an adapted care. 43. The foster mother’s testimony before the District Court had supported the description of the facts that had formed the basis of the expert’s evaluation of X and her needs. Similarly to the Board, the City Court further took account of X’s treatment at the Young People’s Psychiatric Out-Patient Clinic, and her diagnosis of “other reactions to severe stress” that had been given there, as well as the descriptions from the kindergarten on how X had developed positively but still needed particular supervision. 44. In conclusion, the District Court found that X appeared normal for her age, but that she was still a vulnerable child with an extra need for security and fixed routines. She was for that reason considered as dependent on carers with more than ordinary good care skills – adults who would be able to reflect on her reactions and behaviour. 45. It was likely that X’s symptoms of mal-development and attachment problems, that had been present during the first period after she had been placed in public care, had their major cause in neglect from the applicant during the two first years of X’s life. The fact that the applicant, after the decision on placement had been made in 2013, “fled” with X – i.e. relocated to other parts of the country without the authorities’ knowledge – in order to evade the implementation of the decision, not only supported the assessment that the applicant had been immature and with little understanding of the consequences of her own acts at that time but had also been a considerable strain and source of insecurity for X. 46. The applicant’s mental health situation had improved during the spring and summer of 2014, and this might indicate that they were partly linked to the placing of X in public care. However, the court found additional reason to point out that the applicant’s mental health had been troublesome also before that measure had been adopted. First, the court-appointed psychologist had in his report noted that the applicant understood that she had had a childhood and upbringing unfortunate for her personal development. She had herself been followed up by the Children’s and Young People’s Psychiatric Out-Patient Clinic for five years. Secondly, it had been the applicant’s mental health that had triggered the notifications of concern that led to the engagement of the child welfare authorities in 2011. 47. The applicant had undergone a considerably positive development with respect to practical arrangements. She had obtained her own apartment and an employment internship position supported by the social welfare authorities that she followed up well. Her finances were orderly; she had contact with her brothers and friends. She would thus be capable of providing appropriate material care. 48. However, it was doubtful whether the applicant would be able to offer X satisfactory emotional care. Whilst the applicant herself was of the opinion that she had no mental health issues, it had emerged that she had been depressed and had been followed up by the municipal authorities in order to activate. Although she had had a positive personal and social development, she was still vulnerable, and the court-appointed expert had concluded that she did not have the prerequisites and resources necessary to give X the emotional care that would support the child’s development. In the expert’s view, it was a positive matter that the applicant managed to follow up on the initiatives by the municipal and social security authorities, and she should be given some more time to establish as an independent adult. Over some time, she should be able to show that she had been stably well-functioning and could take over the care for her child. 49. The District Court agreed with the expert’s assessment and pointed particularly to the fact that the applicant’s positive development was thus far mostly connected to factors that impacted on the abilities to give material care. Ultimately, the court did not deem it necessary to decide whether the applicant was capable of offering X care that would meet the conditions for her return. X had developed ties to the foster home that provided a safe environment for her, and there were risks attached to an eventual return to the uncertain conditions in the applicant’s home. X had shown symptoms of considerable attachment problems when she was placed in the foster home in the autumn of 2013. These problems had had their major cause in the neglect X experienced during her first two years, when living with the applicant. Whilst X had had a significantly positive development during the time in foster care and had become close to adequate in development for her age, she was still vulnerable and needed care beyond what a normal child in her age needed. The good and stable care situation in the foster home had been the primary reason for the positive development. Returning the care of X to the applicant would at that time be capable of implying serious problems for X. It would imply returning to the environment in which X had been when the care was insecure, an environment which had formed the major reason for the attachment problems visible at the time when she had been placed in public care in 2013. 50. Whilst finding that the public care of X should not be discontinued, the District Court increased the contact rights to six times a year, each time for three hours. It observed in that regard that a balance had to be struck between, on the one hand, the child’s interest in stability and the possibility to develop bonds to the foster home. On the other hand, the contact with her biological parents had to be taken care of. When assessing the extent of the visiting rights, the District Court found that based on the information currently available, the placement had to be considered as long-term. In this connection it recalled that it had concluded that X could not be returned to the mother at that point in time because of her attachment to the foster home. The court considered it likely that this attachment would increase. Moreover, the court had to take account of the fact that X’s father also had similar rights, four times a year. However, the visits by the applicant had appeared positive. If the totality of the visits by both parents turned out to be troublesome to X, it would be more reasonable to reduce the father’s visiting rights than those of the applicant. 51. The High Court (lagmannsrett) refused leave to appeal on 22 January 2016. The Supreme Court (Høyesterett) rejected an appeal against that refusal on 31 March 2016. 52. The relevant sections of the Child Welfare Act of 17 July 1992 (barnevernloven) read as follows: “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 4-21 Revocation of care orders The county social welfare board shall revoke a care order when it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child’s foster parents shall be entitled to state their opinion. The parties may not demand that a case concerning revocation of a care order 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. If a demand for revocation of the previous order or judgment was not upheld with reference to section 4-21, first paragraph, second sentence, new proceedings may only be demanded when documentary evidence is provided to show that significant changes have taken place in the child’s situation.” 53. The relevant sections of the Dispute Act of 17 June 2005 (tvisteloven) read as follows: “Section 36-1 Scope (1) The provisions of this Chapter apply to legal actions which pursuant to special statutory provisions may be brought for judicial review of administrative decisions on coercive measures against individuals. Other claims cannot be included in the action. ... 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. ...”