T.S. AND J..J. v. NORWAY
Inadmissible
André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary
1. The first applicant, T.S., is a Polish national who was born in 1949 and lives in Warsaw. The second applicant, J.J., is a Polish national who was born in 1971 and lives in Sandnes. The applicants were represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw. 2 3. The first applicant is the maternal grandmother of X, a boy born in 2003 and who lives in Norway. The second applicant is X’s father. The second applicant moved to Norway in 2006 and X and his mother, also Polish, followed in September 2007. The parents separated in 2010, after which X stayed with his mother. In April 2011, X’s mother died. The second applicant was given custody of X. 4. On 23 June 2011 X was taken into public care on an interim basis by decision of Sandnes Child Care Protection Services (barneverntjenesten), because the second applicant could not take care of him. The measure became permanent on 8 December 2011 by decision of Sandnes County Social Affairs Board (fylkesnemnda for barnevern og sosiale saker) and as the second applicant lacked ability to care for X, he was placed with a foster family. The second applicant kept parental responsibility for X and had contact rights for four hours per month with him. 5. X was born prematurely and has special needs. He was born with periventricular bleedings, his motor skills are delayed and he has complex visual impairments. His condition is characterised by early traumas tied to domestic violence and alcohol abuse. 6. The first applicant had good contact with X until he was four years old and moved to Norway. After that they talked on the telephone once or twice per week. Up until the death of his mother, X visited the first applicant in Poland regularly. After the public care decision, the first applicant visited X in Norway three times between 2011 and 2013. 7. X’s foster family is not Polish-speaking and X is fluent in Norwegian, although he has received Polish lessons at his school as part of his native language education. X has not wished to take any extra-curricular Polish lessons. According to a report issued by the Child Care Protection Services on 30 November 2012, X’s foster parents proposed to X that he might participate in activities at a Catholic church, as his mother was a Catholic. However, X showed no interest in such activities. 8. In September 2012 the first applicant requested regulated contact rights from the Norwegian authorities. By decision of 4 April 2013, Rogaland County Social Affairs Board (henceforth “the Board”) granted the first applicant contact rights with X during two periods per year. Each period consisted of three visits, with every visit being up to three hours long. The visits were to be supervised if needed. X was heard through a contact person, who gave testimony at the oral hearing. X expressed his desire to meet the first applicant twice per year, although not in Poland, and with the presence of another adult. The Board stressed the importance of contact between X and the first applicant while, at the same time, observing that X had negative reactions, consisting of stomach pain and diarrhoea, before and after visits by the first applicant. X had also objected to further visits by the first applicant at his foster home. With regard to visits in Poland, the Board considered that it was a long journey and that X had special needs. He had also objected to going there for visits. Finally, the Board stressed that the Child Care Protection Services could allow more extended visits if such measures were in the best interests of the child. The Board held an oral hearing and the first applicant was represented by a lawyer. 9. The first applicant appealed against the Board’s decision and demanded extended contact rights in order to avoid X reacting negatively during visits. 10. By judgment of 8 September 2014, Jæren City Court (tingrett) limited the first applicant’s contact rights to four hours, twice per year. The first applicant was heard at the oral hearing, along with five witnesses. One of the witnesses had been representing X before the Board and she had talked to X before the oral hearing so that he could have his say. X stated that he did not want to have a lot of contact with the first applicant, but agreed to meet once per year. 11. The court found it established that the relationship between the first applicant and X had been harmed because the first applicant had criticised and discredited X’s foster family. She had also criticised X for being too thin, for not speaking better Polish and for religious matters. Finally, she wanted to forbid X to do physical exercise such as playing football, although X liked this and was fit for it, according to medical certificates. The court noted that the contact rights could increase in the future if the relationship between the first applicant and X improved. Also, the Child Care Protection Services had offered the first applicant advice on how visits should be carried out. Despite the advice offered, the first applicant had not adapted her behaviour so that the visits would become positive experiences for X. Moreover, the first applicant had been given special counseling twice during two hours. Although the results had improved, the Court had the impression of the first applicant that she was not that easily guided. 12. Regarding X’s Polish identity, the court agreed with the first applicant that she could play an important part in preserving that identity. However, X’s right to identity, language and culture did not, in the court’s opinion, override the consideration for the best interests of the child. The court agreed with the Board that it was necessary to allow the Child Care Protection Services to supervise the visits in order to prevent the first applicant from saying harmful things to X. 13. Upon appeal by the first applicant, on 20 November 2014, Gulating High Court (lagmannsrett) refused leave to appeal on the ground that the City Court’s judgment was well-reasoned and that nothing in the appeal indicated that the High Court would make a different assessment from that of the lower court. 14. On 23 January 2015 the Supreme Court (Høyesterett) refused leave to appeal. 15. According to Section 4-1(1) of the 1992 Child Welfare Act (lov om barneverntjenester) decisive weight shall be given to the best interests of the child while deciding on measures under the Act. 16. Section 4-19(4) of the Act provides as follows: “The child’s relatives, or other persons to whom the child is closely attached, may demand that the county social welfare board determine whether they shall be entitled to access to the child and the extent of such right of access when a) one or both of the parents is/are dead, or b) the county social welfare board has decided that one or both parents shall not be entitled to access to the child or that the parents’ right of access shall be very limited.” 17. It follows from Section 6-3(1) of the Act that a child who has obtained the age of seven shall be informed and be given the opportunity to have his or her say in the matter before any decision is taken. The views of the child shall be given due weight in accordance with the age and maturity of the child. 18. The Convention on the Rights of the Child contains, in so far as relevant, the following provisions: Article 3 “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. “ Article 8 “1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.” Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”