Case of European Court of Human Rights, September 10, 2019 (case STRAND LOBBEN AND OTHERS v. NORWAY)

Defense:NORWAY
Resolution Date:September 10, 2019
SUMMARY

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

 
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GRAND CHAMBER

CASE OF STRAND LOBBEN AND OTHERS v. NORWAY

(Application no. 37283/13)

JUDGMENT

STRASBOURG

10 September 2019

This judgment is final but it may be subject to editorial revision.

In the case of Strand Lobben and Others v. Norway,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Linos-Alexandre Sicilianos, President,Guido Raimondi,Robert Spano,Vincent A. De Gaetano,Jon Fridrik Kjølbro,Ganna Yudkivska,Egidijus Kūris,Carlo Ranzoni,Armen Harutyunyan,Georges Ravarani,Pere Pastor Vilanova,Alena Poláčková,Pauliine Koskelo,Péter Paczolay,Lado Chanturia,Gilberto Felici, judges,Dag Bugge Nordén, ad hoc judge,and Søren Prebensen, Deputy Grand Chamber Registrar,

Having deliberated in private on 17 October 2018 and 27 May 2019, Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

  1. The case originated in an application (no. 37283/13) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Norwegian nationals, Ms Trude Strand Lobben, her children, X and Y, and her parents, Ms Sissel and Mr Leif Lobben, on 12 April 2013.

  2. The first applicant, Ms Trude Strand Lobben, and the second applicant, X (“the applicants”), who had been granted legal aid, were ultimately represented by Mr G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg. The Norwegian Government (“the Government”) were represented by their Agents, Mr M. Emberland and Ms H.L. Busch, of the Attorney General’s Office (Civil Matters).

  3. The applicants alleged, in particular, that the domestic authorities’ decisions not to lift the care order for X and instead withdraw the first applicant’s parental responsibilities for him and authorise his adoption by his foster parents, violated their rights to respect for family life under Article 8 of the Convention.

  4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 1 December 2015 the President of the Fifth Section decided to give notice of the applicants’ complaint to the Government. On 30 November 2017 a Chamber of that Section, composed of Angelika Nußberger, Erik Møse, André Potocki, Yonko Grozev, Síofra O’Leary, Gabriele Kucsko-Stadlmayer, Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, gave judgment. The Chamber unanimously declared the application by the first and second applicants admissible and the remainder inadmissible. It held, by a majority, that there had been no violation of Article 8 of the Convention. The joint dissenting opinion of Judges Grozev, O’Leary and Hüseynov was annexed to the judgment.

  5. On 30 January 2018 the applicants requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 9 April 2018 the panel of the Grand Chamber granted that request.

  6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the final deliberations, Jon Fridrik Kjølbro, substitute judge, replaced Aleš Pejchal, who was unable to take part in the further consideration of the case (Rule 24 § 3).

  7. The applicants and the Government each filed observations (Rule 59 § 1) on the merits of the case.

  8. The President of the Grand Chamber granted leave to the Governments of Belgium, Bulgaria, the Czech Republic, Denmark, Italy, Slovakia and the United Kingdom, and Alliance Defending Freedom (ADF) International, the Associazione Italiana dei Magistrati per i Minorenni e per la Famiglia (AIMMF), the Aire Centre and X’s adoptive parents, to intervene in the written procedure, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules.

  9. A hearing took place in public in the Human Rights Building, Strasbourg, on 17 October 2018.

    There appeared before the Court:

    (a) for the respondent GovernmentMr F. Sejersted, Attorney General, Attorney General’s Office,Mr M. Emberland, Agent, Attorney General’s Office,Ms H. Lund Busch, Agent, Attorney General’s OfficeAgents,Ms A. Sydnes Egeland, Attorney, Attorney General’s Office,Mr H. Vaaler, Attorney, Attorney General’s Office,Mr D.T. Gisholt, Director, Ministry of Children and Equality,Ms C. Five Berg, Senior Adviser, Ministry of Childrenand Equality,Ms H. Bautz-Holter Geving, Ministry of Childrenand Equality,Ms L. Width, Municipal Attorney,Advisers;

    (b) for the applicantsMr G. Thuan Dit Dieudonné, Lawyer,Counsel,Ms T. Strand Lobben, First applicant.

    The Court heard addresses by Mr Thuan Dit Dieudonné and Mr Sejersted and their replies to questions put by the judges.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

    1. Background

  10. In May 2008 the first applicant turned to the child welfare services because she was pregnant and was in a difficult situation: she did not have a permanent home and was temporarily staying with her parents.

  11. On 10 June 2008 the first applicant and the putative future father, Z, visited a gynaecological polyclinic at the regional hospital. According to the medical notes recorded that day, the doctor was informed that the first applicant had had a late abortion in October 2007 and that she also wanted to abort this time. A chlamydia test and an ultrasonography were carried out, and the first applicant and Z informed that an abortion would not be possible.

  12. On 23 June 2008 the hospital confirmed that the result of the chlamydia test taken on 10 June 2008 was positive. As one of the measures taken by the birth clinic to monitor the first applicant and her situation, the doctor noted that a social worker would make contact with the child welfare services, in agreement with the first applicant. A social worker, J.T., at the hospital noted the following day that the first applicant had expressed a strong wish for a place at a parent-child institution on the grounds that she was limited on account of a brain injury (begrensninger på grunn av hjerneskade) sustained following an epileptic seizure; she had no home, and a difficult relationship with the child’s putative father and other family members; and that she wanted help to become as good a mother as possible. It was noted by the hospital that any stay at a parent-child institution would be voluntary and that the first applicant and her child could leave whenever they wished.

  13. On 1 July 2008 the hospital notified the child welfare services that the first applicant was in need of guidance concerning the unborn child and monitoring with regard to motherhood. The hospital also indicated that she needed to stay at a parent-child institution. The child welfare services took on the case, with the first applicant’s consent. She agreed to stay at a parent‑child institution for three months after the child was born, so that her ability to give the child adequate care could be assessed.

  14. On 16 July 2008 a meeting with the child welfare services took place. A psychologist, I.K.A., from the Office for Children, Youth and Family Affairs attended the meeting. According to the notes from the meeting, it was agreed that the first applicant should receive psychological counselling on a weekly basis in the social worker’s absence during the summer, and that the psychologist would give subsequent reports to the child welfare services.

  15. On 16 September 2008 a formal decision was taken to offer the first applicant and her child a place at a parent-child institution for three months. The decision stated that the child welfare services were concerned about the first applicant’s mental health and her ability to understand the seriousness of taking responsibility for a child and the consequences.

  16. Some days earlier, on 9 September 2008, the child welfare services and the first applicant had agreed on a plan for the stay. In the plan it was stated that the main purpose of the stay would be to examine, observe and guide the first applicant in order to equip her with sufficient childcare skills. A number of more specific aims were also included, involving observation of the mother and child and examination of the mother’s mental health (psyke) and maturity, her ability to receive, understand and avail herself of advice in relation to her role as a mother, and her developmental possibilities. Working with the first applicant’s network was also included as an aim in the plan.

  17. On 25 September 2008 the first applicant gave birth to a son, X, the second applicant. The first applicant then refused to provide the name of X’s father. Four days later, on 29 September 2008, the first applicant and X moved to the parent-child institution. For the first five days X’s maternal grandmother also stayed there with them.

  18. On 10 October 2008 the parent-child institution called the child welfare services and expressed concern on the part of their staff. According to the child welfare services’ records, the staff at the institution stated that X was not gaining sufficient weight and lacked energy. With regard to nappy changes, the staff had to repeatedly (gang på gang) tell the first applicant that there were still traces of excrement, while she continued to focus on herself.

  19. On 14 October 2008 the staff at the parent-child institution said that they were very concerned about X and the first applicant’s caring skills. It had turned out that the first applicant had given an incorrect weight for the baby and that X had, accordingly, lost more weight than previously assumed. Moreover, she showed no understanding of the boy’s feelings (viser ingen forståelse av gutten sine følelser) and seemed unable to empathise with the baby (sette seg inn i hvordan babyen har det). The staff had decided to move the first applicant into an apartment on the main floor in order to get a better overview and to monitor her even more closely. The next meeting between the first applicant, the staff at the parent-child institution and the...

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