Last Updated on May 24, 2019 by LawEuro
Information Note on the Court’s case-law 221
August-September 2018
Jansen v. Norway – 2822/16
Judgment 6.9.2018 [Section V]
Article 8
Article 8-1
Respect for family life
Mother denied contact rights in respect of her child in foster care because of abduction risk: violation
Facts – In 2011, when her daughter was born, the applicant was 19 years old and was living at home with her parents, Norwegian Roma. Shortly afterwards, she and her daughter were thrown out by the applicant’s father and they moved into a family centre – a parent-child institution. They moved between the applicant’s home and the family centre several times. During one stay at the family centre, the grandfather stabbed a neighbouring couple who, he believed, had helped the applicant to move to the family centre. After this incident the applicant again returned home. Shortly thereafter, the Child Welfare Service applied for a care order pursuant to domestic law.
In June 2012 the applicant’s daughter was moved to an emergency foster home at a secret address, and it was decided that the applicant would have one hour of supervised contact per week because of the risk that the child might be abducted. Several months later, the child was moved from the emergency foster home to her current foster home.
In December 2012 a new care order was issued giving both parents supervised contact of one hour, four times a year with neither of them being entitled to know the child’s whereabouts. Subsequently, in June 2013, the City Court passed judgment and ordered that the applicant and the child’s father were not entitled to have any contact with her pertaining to the child’s best interests on the basis there was a present and obvious risk of kidnapping. The applicant’s subsequent legal appeals proved unsuccessful.
Law – Article 8: Based on the assessments of evidence made by the domestic courts, there were indications that there had been a real risk of abduction which emanated predominantly from the applicant’s father, but was not limited to him. The applicant’s father had stabbed a neighbouring couple in the belief that they had helped the applicant to take the child out of their home; the applicant had been told that her father planned to take her to another country, kill her and take her child; the child’s father had received death threats when he had sought to establish his paternity; and a family member had followed one of the foster parents, possibly as part of discovering the child’s whereabouts. The Court had no basis for finding that the domestic courts had erred in assessing the abduction risk and qualifying it as “a real risk” in accordance with domestic case-law. The Court also accepted the national authorities’ assessment that the consequences of an abduction would have been detrimental for the child’s development as she would again have been likely to suffer neglect.
Regarding the procedure, after the care order of December 2012 had been issued, the case had been examined once by the City Court, twice by the High Court, and once in full by the Supreme Court. In addition, a review had been carried out by the Supreme Court’s Appeals Leave Committee. The High Court’s bench had been composed of three professional judges, a lay judge and a psychologist. Thus, it could not be said that there had been a lack of expert advice. The applicant, with legal aid counsel, had been allowed to present evidence and give testimony in the City Court and on both occasions in the High Court. Taking all this into account, the domestic decision-making process had been comprehensive and the applicant had been sufficiently involved in it as she had been provided with the requisite protection of her interests and fully able to present her case.
The national courts had not only assessed the situation of the applicant and her daughter at the moment when she had been taken into care, but had followed up on later developments. Thus, the High Court had carried out an extensive assessment of the applicant’s recent development and situation at that time. Many different aspects had thus been taken into account in the decision-making process, not only the degree of the risk of abduction, but also the consequences if an abduction were to happen, the child’s signs of having suffered neglect, her vulnerability and needs, her interests in knowing her Roma background and culture, and the effects that contact would have had on the foster parents and the conditions in the foster home. Therefore, there were no grounds for contesting that the domestic authorities had carried out a sufficiently in-depth examination of the case or that the decision had been taken based on what had been considered to be in the child’s best interests.
The High Court had considered that the risk of abduction had not only related to the moment when contact sessions would take place, but also to the danger of the foster family’s home and identity becoming known to the applicant’s family. The organisation of such sessions might therefore have been difficult, and any number of sessions could have potentially entailed that information about where the child lived was revealed. However, it had never been foreseen that there would be more than four contact sessions a year, a factor that reduced the risk of the child’s whereabouts being revealed. Furthermore, the decision complained of had entailed the danger that family relations between the applicant and her daughter were effectively curtailed. In its decision the High Court had not explicitly mentioned that the applicant and her daughter had not seen each other for three years. Moreover, the High Court’s decision had not focused on reuniting the daughter and her mother or on preparing for reunification in the near future, but rather on protecting the child from a potential abduction and its consequences. There was a risk that the child could completely lose contact with her mother. According to the Court’s case-law it was imperative to consider the long-term effects which a permanent separation of a child from her natural mother might have (see, mutatis mutandis, Görgülü v. Germany, 74969/01, 26 February 2004). This was all the more so as the separation of the child from her mother could also have led to her alienation from her Roma identity.
In sum, the potential negative long-term consequences for the daughter of losing contact with her mother and the positive duty to take measures to facilitate family reunification as soon as reasonably feasible had not been sufficiently weighed in the balancing exercise.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 in respect of non-pecuniary damage.
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