The prohibition of communication between a mother and her child due to the risk of her abduction.
JUDGMENT
Jansen v. Norway 06.09.2018 (no. 2822/16)
SUMMARY
Mother and child of Roma origins. The child is under the protection of a foster family for protection reasons. Weighing between the right of the mother and child to communicate and the risk of child abduction by the mother’s family. The national courts did not take into account the long-term negative consequences of the lack of communication with the mother, which could further lead to alienation from the Roma identity. Violation of the right to family life.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Ms B. Jansen, is a Norwegian national who was born in 1992 and lives in Oslo.
The case concerned her complaint about being denied access to her daughter, who has been taken into care and is in a foster family.
Ms Jansen’s daughter, A, was born in 2011. She and the child lived for a short time with her parents, who are Norwegian Roma, until they were thrown out by her father. Over several months she moved in and out of a family care centre.
In June 2012 the Child Welfare Service issued an order to place A in an emergency foster home at a secret address. Ms Jansen was given one hour of supervised contact per week on the grounds of a risk that the child might be abducted. A full care order was issued in December under which Ms Jansen and the child’s father were allowed supervised contact of one hour, four times a year.
Neither parent was entitled to know A’s whereabouts.
After a challenge to the contact decision by Ms Jansen and A’s father, the first-instance court decided that it was in the child’s best interests for them to not have contact rights at all. That decision was upheld on appeal, but the Supreme Court remitted the case in October 2014.
The second set of contact proceedings led the appeal court to uphold its decision on restricting all contact in April 2015 and in July 2015 Ms Jansen was refused leave to appeal again to the Supreme Court.
The main reason for the courts’ restrictions on contact was the danger of A being abducted by Ms Jansen’s family, which would be harmful to the child, and the possibility that the secret address of the foster family would be revealed. They also assessed Ms Jansen’s parenting skills and her ability to withstand her violent and controlling father. They took account of the family’s Roma background, without finding that to be an impediment to restricting contact.
Relying on Article 8 (right to respect for private and family life), Ms Jansen complained about the courts’ refusal to grant her legal rights to have contact with A.
THE DECISION OF THE COURT
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 had been issued by the Board, 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 A’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 A’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 jurisprudence it was imperative to consider the long-term effects which a permanent separation of a child from her natural mother might have (mutatis mutandis, Görgülü v. Germany). 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 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(echrcaselaw.com editing).
