Why Does the ECtHR Find Human Rights Violations in Cases Concerning the Norwegian Child Welfare Services

This is an english summary of the report “Hvorfor dømmes Norge i EMD? En statusrapport om barnevernsfeltet”, originally published in Norwegian in December 2020.

1. Introduction

Chapter 1 provides an introduction to the subject matter of this report. In this status report on child welfare, the Norwegian National Human Rights Institution (Norges Institusjon for Menneskerettigheter, NIM) has investigated why Norway has been convicted by the European Court of Human Rights (ECtHR). In recent years, the European Court of Human Rights (ECtHR) has accepted 39 cases involving the Norwegian Child Welfare Services for hearing.  Of the nine cases the Court has ruled on,  a violation of the right to family life has been found in seven cases.¹At the time of publication of the Report, December 2020. Given that a total of 52 judgements have been passed against Norway throughout the Court’s history, these are startlingly high numbers. The failure to safeguard the right to family life in child welfare cases therefore poses a repeated and central human rights challenge in Norway.

Although the child welfare cases are multifaceted, they have some things in common. The decisions that have been appealed to the ECtHR involve coercive measures on the part of the Child Welfare Services. In most cases, the decisions are based on shortcomings in the parent’s ability to care for their children. The cases also involve relatively young children. In most of these cases, it is not the care order itself that is subject to review, nor is it, for the most part, the care order that is being criticised by the ECtHR. The cases mostly concern restrictions on contact between parents and children, and adoption.

The Grand Chamber of the Supreme Court delivered three decisions in March 2020 concerning the significance the ECtHR judgments should have on Norwegian child welfare regulations and practice. At the same time, there are a large number of Norwegian child welfare cases before the ECtHR that are still pending. The cases before the ECtHR have demonstrated that the work of the Child Welfare Services largely concerns weighing different human rights up against each other: On the one hand, parents and children’s right to family life and maintaining family relationships, and on the other hand, the child’s right to protection against neglect, or even violence and abuse. These considerations are never easy. All in all, the legal picture that emerges is both complex and constantly evolving.

The main purpose of the report is to provide a summary of what can be derived from the ECtHR decisions thus far. The report therefore goes into detail on both the basic premises of the ECtHR’s decisions and the guidelines that can be derived from the Supreme Court’s Grand Chamber decisions on the issue.

In this report, NIM makes three specific recommendations:

2. Human Rights Impact in Norwegian Law

Chapter 2 provides a brief and general account of the content of various relevant human rights instruments and their impact in Norwegian law. In order to understand the ECtHR’s decisions, it is necessary to provide an overview of the basic principles of human rights law that apply to child welfare. Human rights have a strong foundation in Norwegian law, in that the most important conventions take precedence over other legislation through the Human Rights Act, and by the fact that human rights have been elevated into a separate chapter of the Constitution. This means that when it concerns child welfare, both legislation and practice must exist within the framework of human rights. The report provides an overview of the human rights obligations that are relevant to the issues raised in the report. Firstly, the Constitution provides several human rights for both parents and children. Of particular relevance are Article 102 of the Constitution on the right to respect of privacy and family life, and Article 104 on children’s rights, including the principle that the best interests of the child shall be a fundamental consideration. The Supreme Court has concluded that the provisions should be interpreted in light of international precedent, i.e. similar provisions in international conventions. Furthermore, the Human Rights Act is central. It stipulates that five conventions, including the European Convention on Human Rights (ECHR) and the Convention on the Rights of the Child, shall apply as Norwegian law, and that the conventions will take precedence if there is a conflict between Norwegian law and the conventions. The Convention on the Rights of the Child contains a number of obligations for states, which on the one hand are about ensuring the child necessary care and well-being and protecting the child from all forms of violence, but on the other hand, also protect the child’s right to a family life and not to be separated from his/her parents. Statements from the Committee on the Rights of the Child in the form of General Comments are emphasised in Norwegian jurisprudence following several Supreme Court decisions on the issue, but this emphasis is also contingent on several other factors, including whether the statement can be regarded as a statement of interpretation or a recommendation on optimal practice. The ECHR applies to both adults and children. The ECtHR delivers judgments that are binding on the state against which the complaint has been made. The ECtHR’s decisions are also relevant, however, regardless of which state the complaint has been made against, as they are decisive to the interpretation of the more detailed content of the provisions of the Convention. When the rules of the ECHR are applied in Norwegian law, Norwegian courts must, with a few modifications, apply the same methods as the ECtHR itself.

3. Basic Principles of Human Rights Law Applied to Child Welfare – Especially on the ECHR and ECtHR practice

Chapter 3 discusses the basic principles of human rights law that apply to child welfare – with a special focus on the ECHR and on ECtHR practice. The state has a positive human rights obligation, i.e. a duty to act to ensure that children are not subjected to violence, abuse and neglect. This duty follows both from the Constitution, the UN Convention on the Rights of the Child and Articles 2, 3 and 8 of the ECHR. The duty entails that the Government, including the child welfare services, has an active duty to act when it knows, or should have known, that a child is being subjected to violence, abuse or neglect.

At the same time, Article 8 of the ECHR (as well as the Constitution and the UN Convention on the Rights of the Child) states that everyone has the right to respect for their family life, including parents and children. This Article, however, does not apply absolutely, and the Government may under certain circumstances intervene with this right – e.g. in when deciding on a care order. The intervention must have legal basis, serve a legitimate purpose and be “necessary in a democratic society”. The latter entails a duty to make an assessment of proportionality, i.e. an assessment of whether the measure is proportionate to what one is trying to achieve.

Pursuant to Article 8 of the ECHR, it is a fundamental principle that care orders should as a rule be temporary, and that all child welfare measures should be implemented with the objective that parents and child should be able to be reunited as soon as possible. Stipulation of contact is of particular importance for maintaining the goal of reunification, and it is furthermore necessary that the authorities do what they can to ensure that the child and parents are reunited after a care order. According to ECtHR practice, a total denial of contact or extensive contact restrictions, the withdrawal of parental responsibilities, and adoption are considered highly invasive measures as they in reality sever all family ties. In such cases, the Court normally carries out “a stricter scrutiny” of the national decisions.

In its practice, the ECtHR also applies the central principle of the UN Convention on the Rights of the Child, enshrined in Article 3 of the Convention, that the best interests of the child should be a primary consideration in all actions concerning children. A requirement is that the Government has assessed and balanced the conflicting rights and interests against each other in a reasonable manner, and that these assessments are justified and documented.

The Chapter also examines some methodological premises for understanding ECtHR practices, including the principle of dynamic interpretation, the principle of subsidiarity and the principle of states’ margin of appreciation. A general principle is that the more invasive an intervention is, the narrower the state’s margin of discretion.

In principle, there is a central legal distinction between so-called substantive and procedural issues relating to Article 8 of the ECHR. Substantive issues concern the actual and concrete circumstances of the case, while procedural issues are roughly speaking about how a decision was made, the basis for the decision and other procedural rules and due process mechanisms. In other words, the procedural guarantees pursuant to Article 8 of the ECHR entail that requirements are made for the actual decision-making process in child welfare cases. The crucial issue is whether, based on the circumstances and seriousness of the case, the parents have been sufficiently involved in the decision-making process in a way that has allowed them to safeguard their rights and present their views.

4. The Principle of the Best Interests of the Child in ECtHR practice

Chapter 4 describes in more detail the principle of the best interests of the child in ECtHR practice. This principle is not derived from the ECHR, but from the UN Convention on the Rights of the Child, and ECtHR practice is to a large extent inspired by this Convention. In other words, several of the factors emphasised by the ECtHR in its assessments are also included in a best interests’ assessment as the Committee on the Rights of the Child has interpreted the Convention on the Rights of the Child.

The ECtHR assumes that the content of a best interests’ assessment consists of two parts. On the one hand, it is generally in the child’s best interests to maintain the child’s family ties. On the other hand, it is clearly also in the child’s interest to ensure his/her development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development.

When the child’s best interests have been further examined, this must again be weighed against other considerations or rights in cases where these are in conflict. The child’s best interests are an important consideration, both in ECtHR practice and pursuant to the UN Convention on the Rights of the Child: Both conventions place the consideration of the child’s best interests at the forefront of the weighing of conflicting considerations or rights, and the child’s best interests can in both contexts justify, for example, contact restrictions or even adoption.

In other words, the ECtHR makes many of the same assumptions as the Committee on the Rights of the Child when the Court interprets and determines the child’s best interests. For more systemic reasons, however, considerations of the child’s best interests are not as evident in the ECtHR’s assessments as in the Committee on the Rights of the Child’s interpretation of the considerations of the child’s best interests. Nor does the ECtHR substantively review the Norwegian Government’s assessment of what is in the child’s best interests in each individual case.

A topic of debate is whether there are differences in the ECtHR and the Committee on the Rights of the Child’s interpretations of the principle of the child’s best interests, and whether ECtHR practice has evolved as a result of the Norwegian cases.

5. The Reunification Objective, Including the Stipulation of Contact

Chapter 5 describes the reunification objective, including the stipulation of contact.

A fundamental principle in ECtHR practice is that care orders should normally be considered temporary, and that all child welfare measures should be implemented with the goal of reuniting parents and children. In ECtHR practice, the goal of reunification can be abandoned in three cases: if parents are particularly unfit, if being reunited with the parents could be harmful to the child’s health and development, or if considerable time has passed since the care order, so that the child’s need for stability outweighs the consideration of reunification.

The Report analyses how the goal of reunification is reflected in Norwegian law and points out that a standardised contact stipulation appears to have developed, which does not necessarily support the overall goal of reunification. This standard norm is partly a result of the fact that the Supreme Court, in 2012, issued a decision that was interpreted to mean that for long-term placements, standardised contact of 3-6 sessions per year could be stipulated.

A lack of emphasis on the ultimate aim of reunification has been the main reason why the ECtHR concluded that the Norwegian Government has violated the right to family life in several of the Norwegian child welfare cases. The Norwegian convictions at the ECtHR illustrate the importance of the Government committing to a clear principle that care orders should as a general rule be considered temporary, and that later steps in child welfare cases should be implemented with the overarching objective that it should be possible for parents and children at some point to be reunited.

In many of the cases, the ECtHR has taken a fairly thorough approach in its review of Norwegian decisions on adoption and contact restrictions. The cases illustrate that the ECtHR carries out a concrete overall assessment of whether national governments have had return as an overarching goal from the moment of the care order and acted on this goal. In this assessment, the Court considers not only the appealed decision, but the case as a whole.

The issue of stipulating contact is made particularly relevant by the ECtHR under the aim of reunification. The rulings can be summarised in the principle that the regime of contact must be based on concrete assessments and effectively support the goal of reunification. There can hardly be a minimum level of contact, even if the ECtHR has made some statements that could be interpreted as such. There is also a debate in legal theory about both the ECtHR and the Supreme Court’s use of the terms “undue hardship” and “urimelig belastning” respectively, that can be perceived by some as too high a threshold for limiting children’s contact.

6. The importance of Good, Concrete Justifications where Conflicting Human Rights are Assessed

Chapter 6 discusses the importance of good, concrete justifications where conflicting human rights are assessed. The infringement of protected rights, such as the right to family life, always requires justification. In several of the Norwegian child welfare cases, the ECtHR has concluded that the Norwegian Government’s justification for intervention pursuant to Article 8(2) of the ECHR has not been sufficient. At the same time, there are also examples of Norwegian cases where the ECtHR has had no objections to either the justification or the basis for the decision. What is essential to these cases is that a concrete and detailed justification has been given, and it has been made clear that the various interests have been assessed and balanced against each other, while at the same time the child’s best interests have been given great weight.

It follows from the verdicts against Norway that there are stricter requirements to the justification if the Government has given up on the goal of reuniting children and parents. In addition, the ECtHR is also concerned with the specific assessments and reasons included in national governments’ assessments of the child’s best interests, as well as the need for satisfactory justifications of the child’s vulnerability when this forms part of the government’s assessments. Highlighting assessments of less invasive measures will also be an important part of the justifications in cases that affect interventions in family life.

7. The Importance of a Broad and Up-to-date Basis for Decisions

Chapter 7 describes the importance of a broad and up-to-date basis for decisions. The ECtHR has pointed out the importance of this in several of the cases where Norway has been convicted of violating the right to respect for one’s family life. The requirements for the basis for a decision are stricter the more invasive the measures in question are, and strict requirements apply in cases concerning the withdrawal of parental responsibilities, adoption and severe restrictions to contact.

Although the ECtHR does not in principle require that experts should always be appointed, the Court’s practice shows that, according to the circumstances, it may have consequences under Article 8 of the ECHR if this has not been done. For instance, the ECtHR emphasised that there was no updated expert report when the issue of adoption was decided in Strand Lobben and others v. Norway, where the expert report was two years old, and the mother had argued that her care-giving ability had improved, partly as a result of the fact that she was now caring for another child. Nevertheless, the ECtHR found no reason to criticise the Norwegian Government for not appointing a new expert in Jansen v. Norway.

One may conclude from this that in cases concerning particularly invasive child welfare measures, where some time has passed since the last expert assessment, and the parents argue that there are positive changes in their care-giving abilities, the absence of an updated expert report may result in the ECtHR concluding that the national decision-making process does not meet procedural requirements.

The ECtHR’s practice also shows that the foster parents’ descriptions of the child’s reactions to contact should be supported by information from other sources, such as kindergarten, school, health personnel, supervisors, etc. In cases where information about the child’s reaction to contact primarily originates from the foster parents, there is also reason to consider whether there is a need to appoint an expert.

8. The Child’s Procedural Position Before the ECtHR and its Lack of Independent Representation

Chapter 8 of the Report deals with the child’s procedural position before the ECtHR and its lack of independent representation. Some of the Norwegian child welfare cases before the ECtHR illustrate a paradox where the child, who is made a party to an appeal before the ECtHR by a parent who no longer has parental responsibility of the child, is not ensured independent representation before the court. Children, as independent rights-holders under the ECHR, thereby have a withdrawn role in the cases before the ECtHR where they themselves are a party to the appeal, which in turn often makes them less visible in the ECtHR’s own process and decisions.

This violates, firstly, the human rights principle that the child should be heard in cases concerning themselves. This entails, among other things, the right to freely express their own views, for instance by ensuring that parents do not subject the child to pressure or coercion, and also that the child’s opinion should be prominent in the decision. Secondly, a lack of independent representation could also influence the ECtHR’s assessments in the sense that the child’s interests become less relevant to the court’s decisions than they should be.

9. The Reviewing and Reparation of Human Rights Violations

Chapter 9 discusses the reviewing and reparation of human rights violations.

Article 13 of the ECHR imposes a duty on the state to ensure an “effective remedy” for all human rights violations. According to the circumstances, this may include a duty to pay redress and to affirm a human rights violation.

As the procedural system is organised in Norway today, it is difficult to see how national authorities will be able to repair violations of rights of parents and children in the course of the child welfare cases. In a case pursuant to the provisions of Chapter 36 of the Disputes Act, neither the County Social Welfare Boards nor the courts have the right to hear a claim from private persons for redress pursuant to Article 13 of the ECHR, and the broader questions concerning human rights protection are often not subject to review in national cases concerning specific assessments of various child welfare measures. This is in spite of the fact that both the Supreme Court and the ECtHR have stressed the importance of the child welfare authorities, boards and national courts themselves making thorough assessments of relevant human rights requirements.

NIM has pointed out to the Government, through the Ministry of Justice and Public Security, certain general weaknesses in the Norwegian legal system relating to the access to reparation for human rights violations pursuant to Article 13 of the ECHR. The provision requires both access to an effective legal remedy to assess whether human rights have been violated, and a form of reparation when such violations have occurred. Violations that have taken place and cannot be averted or stopped must be repaired in other ways. Confirming violations is an important element of such reparations, but according to the circumstances, the violation could also trigger a claim for redress, such as compensation for non-financial loss. Under Norwegian tort law, redress compensation is primarily relevant if there is gross culpability, and the liability for redress is a personal responsibility, meaning that the state will very rarely be convicted on such liability. In NIM’s view, it is fairly clear that Article 13 of the ECHR may, according to the circumstances, provide an independent basis for claiming compensation for non-economic losses under Norwegian law. However, a legal basis in Norwegian law would remove all uncertainties about this. Furthermore, there is a need for judicial clarification with a view to conditions for allocation and assessment.

10. The Norwegian Child Welfare Cases where the ECtHR has Made a Decision

Chapter 10 describes the Norwegian child welfare cases where the ECtHR has made a decision. Firstly, the dismissal cases J.M.N. and C.H. v. Norway (3145/16), T.S. and J.J. v. Norway (15633/15), I.D. v. Norway (51374/16) and Bodnariu and others v. Norway (73890/16). Then follow reviews of the decisions M.L. v. Norway (43701/14), Mohamed Hasan v. Norway (27496/15), Jansen v. Norway (2822/16), Strand Lobben and others v. Norway (Grand Chamber 37283/13), K.O. and V.M. v. Norway (64808/16), Abdi Ibrahim v. Norway (15379/16), A.S. v. Norway (60371/15), Pedersen and others v. Norway (39710/15) and Hernehult v. Norway (14652/16).

The purpose of the review is to provide a simple overview of the subject matter of the various cases, to make this available to those practicing Norwegian law, and to make it easier to find comparable cases in practical work on child welfare cases.