ECHR ruling dated September 6, 2018 in the case of Jansen v. Norway (application N 2822/16).
In 2016, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Norway.
The applicant’s application against the ban on seeing his daughter, who was under the care of third parties, in connection with the threat of kidnapping, is being appealed against. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In 2011, when the applicant was 19 years old and she lived with her parents, Norwegian Gypsies, she gave birth to a daughter. Shortly thereafter, the applicant's father kicked her out of the house, and the applicant and her daughter moved to the family center, an institution for parents and their children. Several times the applicant and her daughter moved from the center to her parents' home and back. During one of their stays in the center, the applicant's father stabbed the couple who lived next door because he believed that they had helped the applicant to go to the center. After the incident, the applicant again moved home. Shortly thereafter, the Child Care Service submitted a petition for a child custody order in accordance with Norwegian law.
In June 2012, the applicant's daughter was urgently placed in a temporary foster family at a secret address, and it was decided that the applicant would be allowed to see her daughter one hour a week under the supervision of social workers because of the risk of being kidnapped. A few months later the applicant's daughter was transferred from a temporary foster family to a foster family, where she is currently located.
In December 2012, the guardianship service issued a new resolution, according to which both parents had the right to see their daughter four times a year under the supervision of social workers, while neither of them was allowed to know the place of residence of the child. Subsequently, in June 2013, the city court ruled that both the applicant and the child’s father were forbidden to see their daughter in the best interests of the child on the basis that there was a real and obvious risk of abduction of the child. The appellant’s complaints were unsuccessful.
QUESTIONS OF RIGHT
Based on the assessment of the evidence carried out by the Norwegian courts, there was evidence that there was a real risk of the child being abducted, mostly, but not only, from the applicant's father. The applicant's father stabbed the family couple who lived next door because he believed that these people had helped the applicant to leave her parents' house with her daughter. The applicant was told that her father planned to take the applicant and her daughter to another country, kill the applicant and pick up her daughter. The child’s father was threatened with murder when he tried to prove his fatherhood. In addition, a member of the applicant's family followed one of the adoptive parents of the child, possibly with the aim of finding out the whereabouts of the child. The European Court finds no reason to believe that the Norwegian courts were mistaken in their assessment of the degree of risk of child abduction and in assigning to it the definition of “actual risk” in accordance with domestic law. The European Court also agreed with the findings of the Norwegian courts that the abduction would have a strong negative impact on the development of the girl, since she would probably have been disregarded again.
As for the procedure, after the guardianship ruling in December 2012, the case was once considered by the city court, twice by the High Court (lagmannsrett) and once fully reviewed by the Norwegian Supreme Court. In addition, the case was examined by the verification committee of the Supreme Court of Norway. The judicial composition of the Supreme Court included three professional judges, one non-professional judge (assessor) and a psychologist. Thus, it cannot be said that there was no expert investigation in the case. The applicant, with the help of a lawyer, was given the opportunity to present evidence and testify in the city court and twice in the Supreme Court. Taking into account the above, the decision-making process at the level of the Norwegian courts was comprehensive, and the applicant was sufficiently involved in this process, as she was guaranteed the necessary protection of her interests and she was able to present her case.
The Norwegian courts not only evaluated the situation of the applicant and her daughter at the time the child was taken into custody, but also took into account subsequent changes in the case. Thus, the Norwegian Supreme Court carefully considered the changes in the applicant’s case and the situation as a whole at the time of the receipt of the case in court. Consequently, in making decisions, many aspects of the case were taken into consideration, not only the risk of kidnapping, but also the consequences of a possible kidnapping, signs that neglecting the child’s upbringing, the child’s vulnerability and needs, the child’s interest in knowing their national origin and culture, and the consequences that such contact may have on the child’s adoptive parents and the child’s living conditions in the adoptive family. Accordingly, there were no grounds for challenging the fact that the Norwegian authorities conducted a sufficient, in-depth investigation of the circumstances of the case or that the decisions of the authorities were based on what was considered best for the applicant's daughter.
The Norwegian Supreme Court considered that the risk of the abduction of the applicant's daughter was not only related to the moment of contact with her biological parents, but also with the danger that the location of the adoptive family and the personalities of its members would become known to the applicant's family. In this regard, the organization of such meetings could be difficult, and any number of contacts could lead to the fact that the location of the applicant's daughter would be revealed. However, the question of what will be more than four meetings per year, a fact that reduced the risk of finding the place of residence of the applicant’s daughter, was never considered. Moreover, the decisions appealed could have led to the fact that the family ties between the applicant and her daughter would be effectively terminated. In its decision, the Supreme Court did not explicitly indicate that the applicant and her daughter had not seen each other for three years. Moreover, the Supreme Court’s decision was not aimed at reuniting the mother and daughter or preparing for their future reunion, but rather to protect the child from potential abduction and its consequences. There was a risk that the girl could completely lose touch with her mother. According to the case-law of the European Court, it was necessary to assess the possible long-term consequences of the termination of all contacts between the daughter and her biological mother (see, mutatis mutandis, the decision of the European Court of Justice in the case of Gergülu v. Germany) (February 26, 2004). , complaint no. 74969/01.) This was all the more true given that the termination of any contact between the girl and the applicant could have caused the girl to lose her national identity.
As a result, while balancing interests in the present case, the negative long-term consequences of the termination of the relationship between the daughter and the mother and the positive obligation of the state to take measures to reunite family unions were not sufficiently taken into account as soon as reasonably becomes possible.
The case was a violation of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court awarded the applicant EUR 25,000 in respect of non-pecuniary damage.