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K.T. v. NORWAY - 26664/03 [2008] ECHR 890 (25 September 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/890.html
Cite as:
[2008] ECHR 890,
(2009) 49 EHRR 4
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FIRST
SECTION
CASE OF K.T. v. NORWAY
(Application
no. 26664/03)
JUDGMENT
STRASBOURG
25
September 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of K.T. v. Norway,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren Nielsen, Section
Registrar,
Having
deliberated in private on 4 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26664/03) 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 a Norwegian national, Mr K.T. (“the
applicant”), on 18 August 2003. The President of the Chamber
acceded to the applicant's request not to have his name disclosed
(Rule 47 § 3 of the Rules of Court).
The
applicant was represented by Mr P.J. Maloney, a lawyer practising in
Stavanger. The Norwegian Government (“the Government”)
were represented by their Agent, Mrs F. Platou Amble, Attorney,
Attorney General's Office (Civil Matters).
The
applicant complained that an investigation carried out by the child
welfare services, despite a first such investigation showing that his
former wife's allegations were groundless, constituted an unjustified
interference with his right to respect for private and family life
under Article 8 of the Convention. He moreover complained that,
because of dismissal of his case by the Norwegian courts, and hence
their refusal to review the merits of his case, he was denied access
to a court and an effective remedy, in breach of Articles 6 and 13 of
the Convention, respectively.
By
a decision of 5 January 2006 the Court declared the application
admissible.
The
Government filed observations on the merits (Rule 59 § 1) and
asked the Court to hold an oral hearing (Rule 59 § 3 in
fine). On 22 November 2007 the Chamber decided that no
hearing on the merits was required and invited the parties to reply
extensively in writing to a number of questions, which the applicant
and the Government did on 7 and 11 February 2008.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1971 and lives in Stavanger.
A. Factual background
The
applicant was married to Mrs J.V. Together they had two boys born in
1994 and 1996. He receives a disability pension on account of
Attention Deficit Hyperactivity Disorder (ADHD). He is active as an
instructor in ice hockey and football.
In
July 2001, the applicant's wife moved out of their home and went to
live in Finland. The children have since lived with the applicant.
Shortly after her departure, Mrs J.V. sought to obtain an
interlocutory injunction granting her the sole responsibility for the
daily care of the children, arguing that the applicant had physically
abused her and had an abusive consumption of medication.
The
applicant has been taking medication for ADHD and for an earlier back
injury.
Both
the Stavanger City Court (byrett) and Gulating High Court
(lagmannsrett) rejected her request. Subsequently the
applicant and Mrs J.V. concluded a judicial settlement agreement
according to which he was to assume the daily care.
Concurrently
with the above, Mrs J.V. reported the applicant to the police
alleging that he had assaulted and threatened her. The police granted
a request for an injunction prohibiting the applicant from visiting
her or calling her by telephone but, after having heard the
applicant, they dismissed all her complaints and lifted the
prohibition.
1. First investigation and additional home visit
carried out by the child welfare services
In
addition, Mrs J.V. reported her concerns (bekymringsmelding)
to the local child care authorities, alleging that the applicant was
abusing intoxicating substances and that the children were at risk of
violence. The child welfare services (Barneverntjenesten) at
the Hillevåg District Office (helse- og sosialdistrikt)
opened an investigation (hereinafter referred to as “the first
investigation”) under section 4-3 of the Child Welfare Services
Act 1992 (hereinafter referred to as “the 1992 Act”), in
order to verify whether there was any ground for taking child care
measures under the 1992 Act (notably under section 4-12 which
sets out the grounds for compulsory taking into care of a child, such
as serious deficiencies in the child's daily care, ill-treatment or
other serious abuse occurring in the home, likelihood of parents'
inability to provide care causing serious damage to the child's
health or development). As a result, from 22 August 2001 until the
end of October 2001, the authorities carried out 10 unannounced
visits to the applicant's home.
The
applicant felt that the Hillevåg District Office held
preconceived views against him, due to the number of visits over a
period of two months, inter alia in order to reveal high
consumption of medicines, and that confidential information had been
imparted to Mrs J.V. in this way. After exchanges between his lawyer
and the Hillevåg District Office, the matter was transferred to
the child welfare services at the Hinna District Office, which had
their first conversation with the applicant on 7 November 2001. He
was reticent to talk to begin with but, after being told that his
ability to shield the children against the parental conflict was of
great relevance, at a meeting on 12 December 2001 he provided such
information and also produced written statements by his doctor on his
consumption of medicines and the possibility of reducing it.
The
first investigation was discontinued on 17 December 2001.
On
25 December 2001 followed a renewed call of concern to the child
welfare services (Barnevernvakten) in Stavanger. The boyfriend
of J.V.'s sister had called to inform that J.V. had perceived the
applicant as being drugged when speaking to him on the phone that
day. Immediately, on the same day, the child welfare services carried
out an unannounced visit to the applicant's home and left after 10
minutes, having found no evidence of intoxication.
In
a report of 10 January 2002 by the Hinna District Office concerning
the first investigation, it was noted inter alia that the
applicant's doctor considered his consumption of medication too high
and that it was desirable to reduce it, while the applicant,
following his lawyer's advice, was unwilling to come forward with
information on the subject. No instances of intoxication had been
found. The report concluded that the children did not live in a
situation that was covered by any of the grounds for compulsory
taking into public care under section 4-12 of the 1992 Act, although
the boys' care situation had been made insecure and unpredictable by
the parents' conflict. The report also contained an assessment of the
conduct of the mother, who appeared very assertive and was using
inter alia the child welfare services in her “warfare”
against the applicant, to the boys' detriment.
2. Second investigation by the child welfare services
On
28 February 2002, after a new report of concern, this time by a named
third party, Mr R, who was a police officer, the child welfare
services at Hillevåg opened a new investigation (hereinafter
referred to as “the second investigation”). The source
referred to an incident which he had observed while off duty near an
ice hockey arena on 16 February 2002, when the applicant allegedly
had difficulty standing on his feet, due to intoxication. A trainer
had held him under his arm and had led him out. As the applicant
wished to drive home his car keys had been taken from him. The
applicant's mother had then come to collect him. Mr R worked at the
local police station and as he had returned to work he had found a
message stating that somebody had called to report that the applicant
had driven his children by car while in a state of intoxication. Mr R
had the impression that the applicant often had turned up at the
sports hall in a visibly intoxicated state.
Three
other sources, two of which were anonymous, had reported respectively
on 4, 14 and 25 March 2002 incidents of intoxication and, one of
them, that the applicant was violent and threatening and mentioned
rumours about drugs abuse.
The
anonymous report of 25 March 2002 recounted an incident when the
applicant had been so intoxicated that he did not manage to pass the
sliding door in the sports hall and that, when his oldest son
assisted him through the door, the applicant hit after him. Some
adults in the hall had commented that this was not the first time.
The managers of the sports club had called the applicant's mother who
came to collect the children. The source was worried about the
children's situation.
The
report of 4 March 2002 had been submitted by another named third
party, Mr O, recounting that some time before Christmas his son and
the latter's mother had gone to the applicant's home to fetch some
money. When they arrived the applicant had fallen over due to
intoxication. They had then brought the applicant's eldest son with
them to the cinema. Since the applicant was not capable of fetching
the youngest son in the kindergarten, they had called the applicant's
mother and informed her. When Mr O. heard about this incident he was
worried for the applicant's children.
On
21 March 2002 the child welfare authorities communicated to the
applicant through his lawyer two of the above reports of concern,
namely those of 28 February and 14 March 2002, with an invitation to
the applicant for a meeting to discuss the allegations. In response
to the above, the applicant's lawyer pointed out that the reports of
concern were of the same type as those that had prompted the
investigation which had been opened in August 2001 and had been
concluded. He explained to the authorities that the applicant had not
been under the influence of drugs but had fainted in a state of
malaise; he had not had breakfast that day and had been under duress
because of the proceedings against him.
According
to the applicant, who refused his cooperation in the investigation,
the allegations against him must have originated from persons within
his ex-wife's entourage and were part of her attempt to obtain the
daily care of the children.
On
11 April 2002 the Hillevåg District Office, with reference to
an investigation conducted under section 4-3 of the 1992 Act,
addressed requests for information to several instances, stating that
the Office had reason to fear that the applicant's children lived in
a situation such as described in section 4-12 of the Act. The
requests, which set out specific questions capable of shedding light
on the children's situation, were addressed to the applicant's
doctor, who was also the doctor of his two sons, the school of the
eldest son, the kindergarten of the youngest son, and the police, who
were reminded of their obligation under section 6-4(3) to disclose
such information to the child welfare services. In addition, the
applicant's mother was invited to the Office for an interview.
By
a letter also dated 11 April 2002 (but posted on 16 April 2002) to
the applicant's lawyer, the Hillevåg District Office, enclosing
copies of the above mentioned requests, informed him of the
commencement of the second investigation. It referred to the Hinna
District Office's report of 10 January 2002 stating that the
extent of the applicant's use of tablets was unclear and that he, on
the advice of his lawyer, had refused to comment. It had been the
Office's intention to inform about these requests at a meeting on 4
April 2002, but since the applicant and his lawyer had objected to
meet, they had been informed in writing. The Office added that a
meeting with the applicant was scheduled for 14 May 2002, by which
date they expected to have received the information requested from
the above instances.
The
Hillevåg District Office received information from the doctor,
the school, the kindergarten and the police. The applicant's mother
declined to meet for an interview. His ex-wife gave an interview by
telephone from Finland.
The
investigation was concluded by a report from the child welfare
services at the Hillevåg District, dated 18 July 2002, which
stated that they were worried that the applicant might abuse
intoxicating substances (“rusmisbruk”), were
unsure as to how much his ADHD diagnosis affected his ability to
assume care and were uncertain as to his capability to provide the
children with a sufficiently good up-bringing and about his potential
for development. It recommended support measures under section 4-4 of
the 1992 Act, to be evaluated by the end of a six month period. The
measures included assistance such as designating a support home which
the children could visit, providing the applicant with guidance on
how to master his ADHD illness and problems related to drug taking,
while at the same time assuming responsibility as a carer.
The
applicant disputes this assessment, which had not been based on any
further unannounced visits to his home, nor on information provided
by his doctor, but on circumstantial evidence collected outside the
home.
3. Judicial proceedings brought by the applicant in
relation to the second investigation
In
the meantime, on 23 April 2002, the applicant had instituted
proceedings before the Stavanger City Court to obtain a declaratory
judgment (fastsettelsesdom), maintaining that there was no
legal basis for conducting an investigation against him. He also
requested an interlocutory injunction suspending the investigation
pending judgment in the case. The City Court found that it was not
possible to bring the matter before the courts and on 14 May 2002
dismissed (avviste) the case. It observed that the matter
could not be viewed as a “decision” taken in the exercise
of official duties in the sense of Article 435(1)(1) of the Code of
Civil Procedure. As interpreted in light of the requirement of “legal
interest” in Article 54, this term clearly referred to
“individual decisions” (“enkeltvedtak”).
On
an appeal by the applicant, the Gulating High Court, by 2 votes to 1,
upheld the City Court's decision, by a judgment of 25 June 2002.
The
majority considered that a decision taken by the child welfare
services to carry out an investigation was not decisive for the
applicant's rights and obligations and thus was not a “decision”
in the sense of section 2 of the Public Administration Act. The
applicant did not have a legal interest in the case under Article 54
of the Code of Civil Procedure. A decision to implement an
investigation was only a step in the child welfare services'
preparation of the case and thus was not decisive for his rights and
obligations. Nor was there any conflict with Articles 6, 8 and 13 of
the Convention.
The
minority found that the appeal should be admitted for review
(fremmet), considering that the applicant had a legal interest
in having it judicially established whether the authorities had
unjustifiably interfered with his right to respect for private life.
The
applicant sought to appeal against the High Court's decision by
challenging its application of the law. He maintained that from
Articles 54 and 435 of the Code of Civil Procedure and Articles 6, 8
and 13 of the Convention, it followed that he should have a right to
have the lawfulness of the investigation carried out by Stavanger
Municipality reviewed by the City Court. He requested the Supreme
Court to quash the High Court's decision of 25 June 2002 which upheld
the City Court's dismissal of his case and to refer the case back to
the City Court for examination.
On
21 August 2002 the Appeals Selection Committee of the Supreme Court
decided that the case as a whole should be determined by the Supreme
Court, under section 6 (2) of the Supreme Court Act 1926
(Høyesterettsloven - lov om forandring i lovgivningen om
Høyesterett, 25 June 1926 no. 2). On the same date
the President of the Supreme Court decided that it should hear the
parties according to the rules applicable to ordinary appeals
(ibid.).
In
his letter to the applicant's lawyer of 3 September 2002, notifying
the applicant of the above decisions, the Registrar of the Supreme
Court pointed out that, having regard to the fact that the case
concerned the application of the law, it was assumed not to be
necessary (to commission a first instance court) to collect evidence
for use by the Supreme Court. Should the parties nonetheless be of
the view that this was necessary, their representatives should by 16
September 2002 give an account of what evidence should be collected
and how. Within the same time limit the representatives of the
parties were requested to confer about possible dates for oral
hearing and shortly thereafter the Supreme Court would contact them
to fix the hearing date. The rapporteur judge had estimated that the
hearing would last for one day and the representatives of the parties
were invited to express a view on the presumed duration of the
hearing.
The
child welfare services of Hillevåg submitted their concluding
report of 18 July 2002. Otherwise the state of the evidence was the
same as before the lower courts. Neither of the parties had responded
to the above-mentioned communication of 3 September 2002 by asking
that additional evidence to be collected for use by the Supreme
Court.
After
holding an oral hearing, at which both parties were legally
represented, the Supreme Court in a decision of 4 March 2003 upheld,
by four votes to one, the High Court's dismissal of the case.
On
behalf of the majority, Mr Justice Mitsem gave the following reasons:
“(23) By way of introduction, I would
point out that this case concerns a further interlocutory appeal, in
which the jurisdiction of this court in principle is limited pursuant
to Article 404 of the Code of Civil Procedure. In this instance,
however, the Appeals Committee, and now the Supreme Court, has full
jurisdiction, since the lawsuit filed by [the applicant] was
summarily dismissed 'because the case is not a matter for the courts
of law', see Article 404 (1)(1).
(24) I will first consider the suit in
relation to the conditions for filing a lawsuit under traditional
Norwegian procedural law, set out in Article 54 of the Code of Civil
Procedure. Under this provision, it is a procedural condition that
the suit shall concern 'a legal relationship or a right'.
Furthermore, there must be a 'legal interest' in having the case
decided, which inter alia means that the plaintiff must have
an actual need for a judicial clarification.
(25) The investigation was opened on 28
February 2002 and had to be carried out as soon as possible and
within three, alternatively six, months at the latest, see section
6-9 (1) of the [1992] Act. The final report is dated 18 July 2002 and
was sent to [the applicant's] lawyer on the same day, with
notification that the investigation was closed.
(26) [The applicant] has contested the fact
that the final report represented the end of the investigation.
Reference is made to the fact that the report culminated in a
recommendation that family assistance be provided in the home,
subject to evaluation within six months, so that there was still a
'case' in progress.
(27) To this I would comment that the purpose
of an investigation, as expressed in section 4-3 of the [1992] Act,
is to ascertain whether there is a basis for taking measures pursuant
to the Act, and section 6-9 (2), first sentence, states that 'an
investigation [pursuant to section 4-3] is regarded as completed when
the child welfare services have made an administrative decision to
implement measures or it has been decided to drop the case.' Thus
such measures do not represent a continuation of the investigation,
but its conclusion.
(28) Since the investigation has been closed,
it is difficult to see how a judicial decision could have any legal
significance for [the applicant]. It will not affect the
implementation of the voluntary assistance measures recommended in
the final report. Nor will it make any difference as regards the
right to initiate a possible investigation in the future, based on
new circumstances, or to decide to implement other measures pursuant
to the Child Welfare Act, if warranted by circumstances.
(29) According to precedent it is undoubtedly
the case that the requisite legal interest may cease to exist after
legal proceedings have been instituted, with the consequence that the
case must then be summarily dismissed. This may even occur - as in
the present case – after judicial remedies have been pursued
against a decision made in a court of second instance.
(30) I would add that a decision to carry out
an investigation pursuant to section 4-3 of the [1992] Act is not an
individual decision in the sense of the Public Administration Act.
The same applies to the measures initiated in the course of the
investigation, in this instance the obtaining of information pursuant
to section 6-4 of the Child Welfare Act. As a general rule, it is not
possible to make the lawfulness of such procedural steps the object
of a separate lawsuit pursuant to Article 54 of the Code of Civil
Procedure. However, any errors made at this stage could be
significant in a lawsuit brought against any administrative decision
that might be taken, and could possibly also form the basis for a
claim for damages.
(31) [The applicant] has undoubtedly
experienced the investigation as a strain, also because it was
started shortly after the end of a prior investigation, and any
judgment in his favour might seem like redress. However, this is not
sufficient either to justify a legal interest, see Norsk
Retstidende (Supreme Court Legal Reports - “Rt”)-2001-1123.
(32) Accordingly, I conclude that under
traditional Norwegian procedural law [the applicant 's] suit had to
be summarily dismissed.
(33) [The applicant] has claimed that a
summary dismissal of the case will constitute a breach of the right
of access to a court under Article 6 § 1 of the Convention in
cases relating to 'civil rights'.
(34) I find it unnecessary to express a view
on whether a demand that the child welfare services shall not make an
investigation concerns a 'civil right' at all. In any event, the
Convention accepts that national law must have some latitude to
impose limitations on the right of access to a court. However, this
is conditional on the limitations having a legitimate purpose, and a
proportionality criterion also applies, which means that there must
be a reasonable relationship between the purpose of the limitations
and the effects they have. Finally, the limitations must not have
such far-reaching consequences that the very essence of the right to
a court is impaired, see the judgment of the European Court in the
case of O v. the United Kingdom (1987), Series A No. 120,
which states that the right to a court cannot be precluded in more
substantial disputes.
(35) In the Rt-2001-1123, the first
voting judge points out that 'sparing society – both courts of
law and involved parties – lawsuits which, even if they were to
succeed, would have no significance for the plaintiff's legal
position', constitutes a legitimate aim, and that the proportionality
requirement does not militate against maintaining the requirement of
a 'legal interest' either. I concur with this. Nor can I see either
that the limitation on the right to bring special lawsuits regarding
the type of procedural decisions at issue in this case affects the
essence of Article 6 § 1.
(36) In my opinion, therefore, the summary
dismissal of [the applicant 's] suit does not represent a breach of
Article 6 § 1.
(37) Accordingly, I shall move on to the
question of whether the suit must be allowed in pursuance of Article
13 of the Convention ... . [The applicant] has asserted that the
investigation was a breach of Article 8 of the Convention regarding
the 'right to respect for his private and family life'. The parties
are in agreement that in this case there existed no right to lodge an
appeal to a superior administrative body, in connection with either
the opening of the investigation or the specific steps that were
subsequently taken. Thus any review provided for in Article 13 must
be carried out by a court of law.
(38) The Convention was incorporated into
Norwegian law by the Human Rights Act of 21 May 1999 No. 30 and, in
the event of a conflict, takes precedence over provisions in other
legislation, see section 3. This means, as stated on page 54, first
column, of Proposition No. 3 to the Odelsting [the larger
division of Parliaemnt] (1998-1999), that 'should a situation arise,
after incorporation, where ... Article 13 ... requires the right to a
judicial hearing whereas no corresponding right is provided by
Article 54 of the Code of Civil Procedure, a judicial hearing must be
allowed'.
(39) It is my understanding that the
Municipality acknowledges that the grounds that would lead to a
summary dismissal of [the applicant's] lawsuit pursuant to Article 54
of the Code of Civil Procedure are not tenable pursuant to Article 13
of the Convention. I concur. Pursuant to Article 13, the question of
whether Article 8 has been breached must be regarded as a legal issue
and be made the object of a declaratory suit [fastsettelssøksmål],
even if the breach has ceased to exist. The doubt as regards the
right to demand a judgment for non-compliance with a convention that
existed in Rt-1994-1244, the so-called 'Women's Prison' case, must be
regarded as having been dispelled by the adoption of the Human Rights
Act and the rule of precedence set out in section 3 of the said Act.
(40) Nevertheless, under the case-law of the
European Court, Article 13 only requires the availability of a remedy
before a national authority if there is a reasonable ground for
claiming that the Convention has been breached; there must be an
arguable claim. This criterion is interpreted in accordance with
Article 35 § 3 of the Convention, pursuant to which a complaint
to the Strasbourg Court shall be summarily dismissed if it is
'manifestly ill-founded'; see inter alia paragraph 33 of the
judgment in Powell and Rayner v. the United Kingdom (1990),
Series A No. 172.
(41) Since the right to take legal action
pursuant to Article 54 of the Code of Civil Procedure has been
extended as a result of the incorporation of the European Convention
on Human Rights, there is reason to consider whether the limitations
developed in the Convention case-law should also apply in Norwegian
law. The question will then be whether the courts shall summarily
dismiss a suit which, after a preliminary substantive assessment, is
considered to be clearly unfounded. In that event, it is not a
question of limiting rights that are already protected under
Norwegian law, but of the degree to which they are to be extended.
Thus no conflict with Article 53 of the Convention can arise either,
as [the applicant] has argued.
(42) In the continuation of the passage I
cited above from Proposition No. 3 (1998-1999) to the Odelsting,
it is stated that '[the Ministry] will however obtain an assessment
... of whether the Code of Civil Procedure should be amended so that
it is clearly evident from the statute when lawsuits concerning
alleged breaches of human rights conventions are to be allowed and
when they are to be summarily dismissed', and that the question was
to be considered by the committee that was to be appointed to examine
the Code of Civil Procedure with a view to its revision. The report
of the Code of Civil Procedure Committee recommends that no
substantive 'screening system' should be introduced for lawsuits
concerning possible breaches of the Convention; see Norges
Offentlige Utredninger (Official Norwegian Report – “NOU”
2001:32 page 201. On the other hand, the Committee points out
that lawsuits that clearly cannot succeed could be decided by means
of a proposed simplified court hearing. No such possibility exists in
our current procedural system, but it will, if it is introduced as
proposed by the Committee, largely satisfy the considerations
regarding the saving of time and costs in legal proceedings that have
been advanced as the main arguments in favour of a screening system.
(43) How the issue should be resolved in the
current dispute seems uncertain. I find it natural to take as the
point of departure the fact that Article 54 of the Code of Civil
Procedure establishes by statute – while at the same time
limits – the right to bring any declaratory suit before a
court. In the absence of statutory regulation of the issue, it is my
view that the relaxation of the statutory conditions for bringing a
lawsuit that follows from the Convention cannot in principle go
beyond what would be a direct consequence of the Convention and its
incorporation into Norwegian law. Admittedly, some might object that
it is foreign to Norwegian law to assess the merits of the claim in
order to decide whether the case shall be heard. But the question
concerns a right to take legal action that until now has not had a
clear basis in Norwegian law.
(44) I would add that filing a suit such as
the one at hand, which has aimed at halting the investigations of the
child welfare services, could entail considerable disadvantages. It
will draw resources away from the real functions of the child welfare
services, and might make its work more difficult in situations where
it is necessary to react without undue delay. This reinforces the
need for a simple, rapid assessment of whether there is any substance
at all in the plaintiff's claim. This concern will be met by applying
the Convention's own rule of summary dismissal if the claim is not
arguable.
(45) The consequence of my view is that the
question of summary dismissal will depend on whether the suit, based
on Article 8 of the Convention, must be considered manifestly
ill-founded.
(46) I would add, however, that I have not
thereby concluded whether the threshold for summary dismissal should
be as low as that applied by the European Court of Human Rights. As
emphasized by Jørgen Aall in Tidsskrift for Rettsvitenskap
(Journal of Jurisprudence) 1988, page 90, there are good reasons why
national courts should follow a less stringent practice as regards
summary dismissal. However, as will be shown below, the present case
is in no way on the borderline in that respect.
(47) ...
(48) I find that the investigation
constituted an interference with [the applicant's] right to respect
for his private and family life under Article 8 § 1 of the
Convention. On the other hand, however, I find it clear that it was
an interference that was justified under the exception clause in
Article 8 § 2.
(49) The decision to make an investigation is
subject to a statutory condition - there must be 'reasonable cause to
assume that circumstances prevail which may provide a basis for
measures'; see section 4-3 of the [1992] Act. However, as stressed by
the Municipality, this criterion is linked to a professional
assessment by the child welfare services, and the threshold for
initiating an investigation is meant to be low. In Proposition No. 44
(1991-1992) to the Odelsting, it is also emphasized that
interests of privacy will often have to yield to the child's best
interests; see pages 29 and 107.
(50) The investigation in dispute was opened
on 28 February 2002. One and a half months earlier, a first
investigation had been completed, in which it had been concluded that
the children 'are living in an insecure and unpredictable care
situation'. When a new child concern report was received on 28
February 2002, under section 4-2 of the [1992] Act the child welfare
services had to consider whether it should be followed up by
investigations pursuant to section 4-3.
(51) [The applicant] has maintained with
vigour that this child concern report – which had given cause
to suspect that he was intoxicated when he was with the children and
misused pills, which was also the basis for the previous
investigation – was unwarranted. I offer no opinion on this
question, but cannot see it otherwise than that the child welfare
services had to carry out an investigation pursuant to section 4-3,
with a view to obtaining confirmation or disproving that there was
cause for concern in regard to the children's care situation. The
fact that there was an objective basis for initiating investigations
was otherwise corroborated by new child concern reports and
information from the school and day care centre indicating that the
children had special care needs which it was doubtful that [the
applicant] could fulfil. Finally, this was also confirmed by the
assistance measures recommended by the child welfare services in
their final report.
(52) In relation to Article 8 of the
Convention it is particularly important to consider the specific
steps that were taken during the investigation. In this case, it was
a question of obtaining information pursuant to section 6-4 (2) and
(3) and section 4-12 of the [1992] Act.
(53) I find it clear that it cannot be
claimed that any breach of the [the 1992] Act or the Convention had
occurred. Admittedly, in its final report, the child welfare services
found no basis for making an administrative decision under section
4-12. However, in order to collect information it was sufficient that
there was a substantiated suspicion that the children were in a
situation such as described in the said provision. I would add that
[the applicant's] unwillingness to cooperate with the child welfare
services was also unlikely to calm their basically justified
uneasiness about the children's situation.
(54) Nor is there any ground to claim that
the investigation did not pursue legitimate purposes or was
unnecessary. In this respect it suffices to refer to the European
Commission of Human Right's decision of inadmissiblity of 22 May 1995
in the case of Andersson v. Sweden, in which precisely the
children's best interest were emphasised. The Commission stressed
that the obtaining of information, as in the present case, was
proportionate to the legitimate purpose and an interference of
limited extent, since the public administration was also subject to a
duty of confidentiality. Finally, it was also emphasized as a factor
that the person whom the interference concerned was kept informed as
to the information that was disclosed, as was done in [the
applicant's] case.
(55) Accordingly, it is my view that point 1
of the operative part of the High Court's decision must be upheld.
(56) The interlocutory appeal has not
succeeded. However, the case has raised hitherto unsettled questions
concerning the relationship between traditional Norwegian law and the
European Convention on Human Rights. In my view, the circumstances
must be said to be so special that [the applicant] should not be
ordered to pay costs either before the High Court or the Supreme
Court. The Supreme Court hearing has also been conducted in
accordance with the rules for appeals, with the consequences that
this has for the amount of the costs. Otherwise as regards the
Supreme Court, the legal representatives were appointed at public
expense ....
The
dissenting member, Mr Justice Tjomsland, stated:
“(58) It is my opinion that the lawsuit
must be admitted to the City Court.
(59) I agree with the first voting judge that
the suit would have had to be summarily dismissed in accordance with
'traditional Norwegian procedural law'. I also agree that such a
dismissal would not constitute a breach of the right of access to a
court guaranteed by Article 6 § 1of the Convention.
(60) The first voting judge expresses the
opinion that, as a consequence of incorporation of the Convention
into Norwegian law by the Human Rights Act of 21 May 1999 No. 30, a
claim may be made for a declaratory judgment asserting that there has
been a breach of the Convention. I concur in this opinion. The view
taken by the majority as regards this question in Rt-1994-1244, the
'Women's Prison' case, cannot be maintained following the adoption of
the Human Rights Act. Given the relatively limited requirements that
can now be made in this respect for this type of suit, I also find
that [the applicant] has a sufficient actual interest in the suit;
see NOU 2001:32 Rett på sak (Straight to the
Point), pp. 201-202.
(61) On the other hand, I do not agree with
the first voting judge that a suit regarded as manifestly unfounded
must be summarily dismissed. Once it has been accepted that a suit
may be brought with a claim for a declaratory judgment asserting a
breach of the Convention, the way in which such a claim should be
dealt with depends, in my view, on Norwegian rules of procedure. It
is therefore not decisive that the screening system, which according
to the first voting judge should be applied, will not be contrary to
the Convention. Under Norwegian procedural law, the assessment of
whether the conditions for filing suit have been satisfied is based
on the plaintiff's submissions with regard to the claim he or she is
putting forward. If the claim – in the event manifestly
ill-founded – cannot succeed, judgment must be given for the
respondent after a hearing on the merits of the claim. In my view, it
would be contrary to this principle to procedurally dismiss on a
non-statutory basis manifestly unfounded lawsuits regarding breaches
of the Convention after a summary examination on the merits, cf. the
majority vote in Rt-1994-1244, NOU 2001:32 Rett på
sak, p. 201, and Schei: Tvistemålsloven med kommentarer
(The Code of Civil Procedure, with commentary), 2nd edition, p. 270.
(62) I cannot see that the provision in
Article 35 § 3 of the Convention prescribing that a complaint to
the European Court of Human Rights shall be summarily dismissed after
a summary examination [...] if it is manifestly ill-founded can be
transposed, on a non-statutory basis, as a procedural condition to
lawsuits concerning breaches of the Convention that are brought
before Norwegian courts. I would also note that the considerations
that serve as grounds for the various dismissal provisions in Article
35 of the Convention may appear in a different light as regards
lawsuits brought before national courts. A rule on summary dismissal
of the kind at issue in this instance will, in my view, give rise to
several procedural problems, concerning notably the legal force of
the orders. My objections to such an arrangement also hold good if a
rule of summary dismissal departing from Article 35 § 3 were to
apply on a non-statutory basis, for instance if one were to apply a
less stringent practice of summary dismissal than that of the
European Court or if the scope of the summary dismissal rule were to
be limited in another discretionary manner.
(63) I agree with the first voting judge that
filing a suit like the one at hand could give rise to significant
disadvantages for the work of the child welfare services. However,
such suits are – in my view – a consequence of the fact
that it has now been made permissible to file suit complaining of a
Convention breach irrespective of whether a judgment of this nature
would entail specific legal effects for the plaintiff. In my view, an
attempt must be made to reduce the problems that arise in this
connection by adopting rules regarding simplified judicial hearings
as has been proposed by the Civil Procedure Committee. In this
connection, I wish to comment that the purpose of the screening
system in question here will in actual fact be to introduce, on a
non-statutory basis, a simplified hearing on the merits of the claims
covered by the arrangement.”
II. RELEVANT DOMESTIC LAW
The
Child Welfare Services Act 1992 (“the 1992 Act”)
contained the following provisions which are relevant:
Section 4-2
“The child welfare services shall at the earliest
opportunity, and within one week at the latest, examine reports it
receives and assess whether the individual report shall give rise to
investigations pursuant to section 4-3.”
Section 4-3
“If there is reasonable cause to assume that
circumstances prevail which may provide a basis for measures pursuant
to this chapter, the child welfare services shall investigate the
matter at the earliest opportunity; see the time limits set out in
section 6-9.
The investigation shall be carried out in such a way as
to minimise the harm it causes anyone affected, and it shall not have
a wider scope than justified by its purpose. Importance shall be
attached to preventing the unnecessary spreading of information about
the investigation.
The parents or the persons with whom the child is living
may not object to an investigation as mentioned in the first
sub-section involving visits in the home ...”
Section 6-4
“Information shall as far as possible be obtained
in cooperation with the person whom the case concerns or in such a
way that the person concerned is aware that the information is being
obtained.
Notwithstanding the duty of secrecy, public authorities
shall on their own initiative disclose information to the municipal
child welfare services when there is reason to believe that a child
is being mistreated at home or subjected to other serious deficiency
of parental care (see sections 4-10, 4-11 and 4-12), or when a child
has shown persistent, serious behavioural problems; see section 4-24.
Organizations and private entities that perform tasks for the State,
a county municipality or a municipality are considered on par with
public authorities. Public authorities are also obligated to disclose
such information when ordered to do so by agencies which are
responsible for implementation of the Act.
Practitioners of professions pursuant to [various
specified Acts] are also obligated to disclose information pursuant
to the rules of the second paragraph.”
Section 6-7
“Anyone who performs service or work for a public
administrative agency or institution pursuant to this act is subject
to a duty of secrecy pursuant to sections 13 to 13E of the Public
Administration Act. Contraventions are punishable pursuant to Article
121 of the Penal Code.
[...]
Information may only be disclosed to other public
administrative agencies, see section 13B, subsections 5 and 6, of the
Public Administration Act, when necessary to facilitate the function
of the child welfare services or the institution, or to prevent
material danger to life or serious harm to a person's health. ...”
Articles
53 and 54 of the Code of Civil Procedure, as in force at the material
time (it was replaced by a new Code which entered into force on
1 January 2008), provided:
Article 53
“Until a claim matures, it may not be brought
before the courts with a request for an executory judgment
(fullbyrdelsesdom), except in the following circumstances:
1. If there is particular reason to fear that
the respondent will escape fulfilling his or her obligations on time;
2. If it concerns a claim which is
supplementary to a principal claim, such as interests running until
payment, or compensation, which emerges from the disputed legal
relationship;
3. If it concerns periodic payments, of which
one instalment has matured and when future instalments do not depend
on any service in return;
4. If the claim is conditional upon the
non-fulfilment of another claim, in respect of which the claimant
requests a judgment in the same case.
If the claim has not matured by the time of judgment,
the judgment shall stipulate what condition should occur or what
time-limit should run, before it is to be executed.”
Article 54
“If a plaintiff has a legal interest in it being
established by a judgment that a legal relationship or a right exists
or does not exist ... he can institute proceedings with a request for
a declaratory judgment (fastsettelsesdom), even though an
executory judgment may not yet be obtained.”
Section
6 (2) of the Supreme Court Act 1926 read:
“When it is desirable for special reasons, the
Appeals Leave Committee of the Supreme Court may, in cases being
examined by it, refer a question of law to the Supreme Court or
decide that the case as a whole [saken i sin helhet] shall be
decided by the Supreme Court. The Supreme Court will rule on the
legal issue or on the case in the form of a decision. The court may
decide that oral proceedings may be held in accordance with the rules
that apply to ordinary appeals [ankesaker]. A decision to this
effect may also be taken by the presiding judge before the case is
examined by the Supreme Court.”
From
Article 404 (1), item 1, of the former Code of Civil Procedure it
followed that a decision by the High Court on an appeal against a
dismissal of a case on grounds of lack of jurisdiction may form the
subject of further appeal to the Supreme Court. The latter then has
full jurisdiction to examine questions of law, fact and procedure
(see Tore Schei, Tvistemålsloven med kommentarer (Code
of Civil Procedure with Commentary), 1990, p, 361).
Pursuant
to Article 374, the Supreme Court could not take oral evidence from
witnesses directly, but the parties could make a request to the
relevant district- or city court to hear witness evidence
(bevisopptak). In such event, the statements of the parties
and/or witnesses were recorded in extenso by the first
instance judge. The records were included in the Supreme Court's case
file and may be read out by the parties' representatives during the
Supreme Court hearing, should they so wish, like other documentary
evidence contained in the file.
III. THE CONVENTION ON THE RIGHTS OF THE CHILD OF THE
UNITED NATIONS
The
human rights of children and the standards to which all governments
must aspire in realising these rights for all children, are set out
in the Convention on the Rights of the Child. This instrument entered
into force on 2 September 1990 and has been ratified by 193
countries, including Norway, which has also incorporated it together
with the Convention into its domestic legal order (1999).
The
Convention spells out the basic human rights that children everywhere
– without discrimination – have: the right to survival;
to develop to the fullest; to protection from harmful influences,
abuse and exploitation; and to participate fully in family, cultural
and social life. It further protects children's rights by setting
standards in health care, education and legal, civil and social
services.
States
Parties to the Convention are obliged to develop and undertake all
actions and policies in the light of the best interests of the child
(Article 3). Moreover, States Parties have to ensure that a child is
not separated from his or her parents against their will unless such
separation is necessary for the best interests of the child; and that
a child who is separated from one or both parents is entitled to
maintain personal relations and direct contact with both parents on a
regular basis, except if it is contrary to the child's best interests
(Article 9).
Article
19 reads:
“1. States Parties shall take all appropriate
legislative, administrative, social and educational measures to
protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s),
legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate,
include effective procedures for the establishment of social
programmes to provide necessary support for the child and for those
who have the care of the child, as well as for other forms of
prevention and for identification, reporting, referral,
investigation, treatment and follow-up of instances of child
maltreatment described heretofore, and, as appropriate, for judicial
involvement.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the investigations carried out by the child
welfare services, despite a first such investigation showing that his
former wife's allegations were groundless, had constituted an
unjustified interference with his right to respect for private and
family life under Article 8 of the Convention. He moreover
complained that, because of dismissal of his case by the Norwegian
courts, and hence their refusal to review the merits of his case, he
had been denied access to a court and an effective remedy, in breach
of Articles 6 and 13 of the Convention, respectively.
Article
8 reads:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Court reiterates that its examination under the above provision will
be limited to the applicant's complaint about the child welfare
services second investigation into his ability to assume the care for
his two sons, which it declared admissible on 5 January 2006. It was
undisputed that the second investigation constituted an interference
with his right to respect for private and family life under paragraph
1 of Article 8 of the Convention. The Court sees no reason to hold
otherwise. On the other hand, the applicant disputed that the measure
was justified for the purposes of paragraph 2, whereas the Government
contested his submission and invited the Court to find no violation
of Article 8 of the Convention.
1. Arguments of the parties
(i) The applicant
The
applicant argued that all the domestic authorities involved in this
case seemed to have accepted that a report of concern would suffice
to allow the “investigation snowball” to roll downhill
and gather momentum, even without making an adequate evaluation of
the credibility of the report. He emphasized that the report of
concern had been made by a person who had only observed from a
considerable distance the incident in which the applicant had
collapsed and who could not have been able to ascertain whether the
incident resulted from acute illness or from intoxication or why the
applicant's car keys had been taken from him. This person had also
lied about what was registered with the police as there was nothing
in the register corresponding to his allegations. At an early stage
all of this was pointed out to the child care authorities at the
Hillevåg District Office, as was the fact that several persons,
who had assisted the applicant after he fell, could confirm that the
incident was unrelated to intoxication or abuse of intoxicating
substances. While agreeing with the Supreme Court and the Government
that the threshold for opening an investigation ought to be low, the
applicant submitted that the authorities had failed to carry out a
comprehensive professional assessment of the validity of reports as
required under section 4-3 of the 1992 Act. They should have
contacted the applicant to hear his explanation of the incident and
should have heard first hand accounts from several witnesses who had
assisted him and who could confirm that he had not appeared
intoxicated or under the influence of any substances.
The
applicant moreover disputed that the interference pursued a
legitimate aim. The authorities' failure to attempt to assess the
validity of any of the reports of concern suggested that they had
been determined to go on until they found some evidence of addiction.
Nor
could the second investigation be deemed “necessary” in
the absence of any relevant and sufficient reasons for investigating
allegations of dependency. This matter had already been investigated
over a period of 5 months in the first investigation, with no less
than 10 unannounced control visits to the applicant's home. The
relevant documents contained no elements that would lend support to
such allegations and no changes had occurred by the time the second
investigation had been commenced, other than a very dubious and
unverified report as well as several anonymous reports probably
originating from the applicant's estranged wife's family.
Whereas
the Government attempted to justify the second investigation on the
basis of the “conclusion” in the final report of the
first investigation, i.e. that the children were living under an
insecure and unpredictable care situation, the latter did not suggest
that the situation was so serious as to warrant measures to be taken.
In particular, the report contained no recommendations regarding
addiction, simply because no such abuse had been found. The basis for
the second investigation had been a highly doubtful report about
alleged intoxication, not about the parental conflict that had been
the focus of attention and the reason for the “conclusion”
in the first investigation report.
In the second investigation the authorities had failed
to appreciate that the children, only after the completion of the
first investigation on 17 December 2001, had learned that their
mother had abandoned them by moving to Finland. By then focusing on
the father for possible addiction abuse, the child care authorities
had disregarded the very negative effect on the children, who were
then respectively six and eight years old, of being abandoned by
their mother. They had also failed to understand what burden it meant
for the father to be investigated for the same allegations twice in
less than two months; a father who had the sole responsibility for
taking care of two children less than nine years of age that had just
experienced abandonment by their mother. The investigation had
severely disrupted the applicant's private and family life. Again he
had to use his energy and concentration not only to take care of his
two young children, but also to defend himself against a totally
unjustified investigation conducted by persons who apparently would
not leave him and his family alone until they had obtained evidence
that he abused intoxicating substances.
It
must be emphasized that the applicant's doctor was also the doctor of
the children in this case and thereby had an independent duty to
report on serious concerns about the applicant's care of his children
to the Hillevåg authorities even without having been requested
to do so. This was never done and no information provided by the
applicant's doctor to the Hillevåg authorities was of such a
nature that it supported any suspicion of addiction, nor did it
support any allegation that the applicant's care of the children was
inadequate.
(ii) The Government
The
Government emphasised that the second investigation was limited in
nature and scope. It consisted of obtaining information from the
school, kindergarten, doctor and police and conducting an interview
with the applicant's former wife, who was in Finland, and did not
involve such measures as home visits or measures directly involving
the applicant's children.
Moreover,
the Government submitted, the investigation had a legal basis in
section 4-3 of the 1992 Act. Having regard to the purpose of the Act
and to Norway's obligations under the United Nations Convention on
the Rights of the Child, the threshold for initiating such
investigations ought to be low. The fact that the first investigation
had been based on the same kinds of allegations about violence and
misuse of medication, drugs or alcohol –which had not been
confirmed or led to measures being taken under the 1992 Act - could
not in itself be sufficient grounds for the child welfare services to
conclude that the new reports of concern were unwarranted. Having
regard to the conclusion in the first investigation that the
applicant's children were “living in an insecure and
unpredictable care situation”, the child care authorities not
only had a legal right but also a legal obligation to follow up new
reports of concern or other information relevant to the children's
care situation. The communication by the instances concerned of the
confidential information to the child welfare services had been
authorised under section 6-4 (2) (3) of the Act.
Furthermore,
the investigation had pursued the legitimate aim of “protection
of the rights ... of others” and was “necessary”
for the pursuance of such an aim. There was no support for the
applicant's allegation that the child welfare services had any
interest of their own in nailing a substance abuse problem to the
applicant, which allegation should be rejected as entirely unfounded.
Nor was there any evidence for his assertion that the authorities
failed to assess the reports of concern pursuant to sections 4-2 and
4-3 of the 1992 Act. In particular, there was no reason for the
authorities to question the observations of apparent intoxication
made by a police officer, who was trained by profession to observe
and assess situations. The officer had no connections to the
applicant's family or any involvement in his conflict with his
estranged wife. His report had in addition been supported by two
further such reports form other third parties during the subsequent
month. Having regard also to the contents of the report of the first
investigation, there was a sufficient basis for the authorities to
initiate the second investigation in April 2002. This was confirmed
by the information obtained in the latter context.
The
applicant's contention to the effect that the authorities had been
overzealous and biased in this regard had no basis. In this
connection it might be noteworthy that according to statistics of the
relevant Ministry, during the period from 1996 to 2005 between 14 and
19 % of all reports of concern had been shelved without
investigation; and between 43 and 46 % of those instances where an
investigation had been opened had been concluded without any action
having been taken.
Contrary
to what the applicant seemed to believe, the purpose of the
investigation carried out under section 4-3 of the 1992 Act had not
been to find out whether the applicant had a substance abuse problem
but to be able to assess whether the children were at risk, whether
they lived under conditions warranting measures being taken.
1. The Court's assessment
The
Court finds no reason to question the Norwegian Supreme Court's
finding that the contested investigation had a legal basis in
domestic law, namely sections 4-3 and 6-4 of the 1992 Act (see
paragraph 53 of the Supreme Court's judgment quoted at paragraph 36
above).
Nor
does the Court find any reason to doubt the assessment made by the
Supreme Court that the second investigation pursued the best
interests of children (ibidem, paragraph 54). It is satisfied that
the disputed measures were aimed at protecting the “rights and
freedoms” of the applicant's children and thus pursued
legitimate aims within the meaning of paragraph 2 of Article 8.
As
to the further question whether the impugned interference was
“necessary”, the Court notes by way of preliminary
observation that it fell within the range of measures envisaged in
Article 19 of the UN Convention on the Rights of the Child for States
to take in order to prevent abuse and neglect of children (see
paragraph 46 above). This is an important consideration to be borne
in mind in the assessment of the necessity of the interference.
Indeed, the parties were in agreement before the Court that, as
pointed out by the Supreme Court, the threshold for commencing a
section 4-3 investigation should be low.
Turning
to the particular circumstances, the Court finds that the necessity
of the second investigation must be viewed in the context of the
first investigation concluded by the Hinna District Office in its
report of 10 January 2002 (see paragraph 16 above). In that report,
it was observed that, mainly due to parental conflict, the children
were “living in an insecure and unpredictable care situation”,
though the situation was not considered to be such as described in
section 4-12 of the 1992 Act. Moreover, while there were no
independent reports to the effect that the applicant was intoxicated
due to an abusive consumption of medicines, it was noted that his
doctor had stated that she considered his intake of medicines to be
too high. It was deemed peculiar that, on his lawyer's advice, the
applicant had not wished to comment on this matter.
Secondly,
what had triggered the opening of the second investigation on 28
February 2002 was a new report of concern by a named third party
relating to an incident on 16 February 2002, alleging that the
applicant had difficulty standing on his feet due to intoxication at
a sports centre (see paragraph 17 above). Thereafter, two other
sources, one of which was anonymous, had reported respectively on 4
and 25 March 2002 incidents of intoxication in his children's
presence and one anonymous source had reported on 14 March 2002 that
the applicant was violent and threatening and had mentioned rumours
about drug abuse (see paragraphs 19 to 21 above). Before opening the
second investigation, the child welfare authorities communicated to
the applicant some of the reports of concern with an invitation to
discuss the allegations, which he declined. In the Court's view, the
decision-making process did not leave anything to be desired. The
fact that an investigation based on the same kind of allegations of
substance abuse had been concluded a few months earlier could not of
itself justify discarding the new reports of concern as being
unwarranted. In this regard it sees no reason for questioning the
findings made by the Supreme Court (see paragraphs 50 to 51 above of
the Supreme Court's judgment quoted at paragraph 36 above).
Against
this background, the Court is of the view that the national
authorities were entitled to consider that initiating a second
investigation into the children's situation while under the
applicant's care was supported by relevant and sufficient reasons.
Indeed, the correctness of their assessment in this regard was
confirmed by the findings set out in the second investigation report.
In
any event, a general duty such as that suggested by the applicant,
for the child welfare authorities to thoroughly investigate the
validity of a report of concern before opening an investigation could
hardly be derived from Article 8 of the Convention. If it were to be
a prerequisite that all such reports, even those that appear credible
on their face, should be verified in advance, it would risk delaying
such investigations, deflecting attention and resources away from the
real problems and reducing their effectiveness and hampering efforts
in instances where it was paramount to establish urgently and without
delay whether a child was living under conditions that may harm his
or her health or development. In this connection, the Court cannot
but note the emphasis placed on effectiveness in Article 19 of the UN
Convention on the Rights of the Child (see paragraph 46 above).
Therefore,
the Court finds nothing to indicate that the authorities' assessment
as to the necessity of opening a new investigation went beyond the
wide margin of appreciation that was accorded to them in such matters
under Article 8 of the Convention (see Johansen v. Norway,
judgment of 7 August 1996, Reports of Judgments and Decisions
1996 III, pp. 1003-1004, § 64; Kutzner v.
Germany, no. 46544/99, § 66, ECHR 2002 I).
As
to the modalities of the second investigation, the Court observes
that the applicant, led by his lawyer, refused to cooperate with the
child welfare services in this respect. It cannot be said that by
obtaining information from the general practitioner of the applicant
and his sons, the sons' respective school and kindergarten and the
police, the child welfare services failed to strike a proper balance
between the applicant's interest in maintaining the confidentiality
of certain personal data and the best interests of the children. The
disclosure of information to the child welfare authorities was of
limited nature, was subject to a duty on their part to maintain the
confidentiality of the information and was notified to the applicant;
it was thus accompanied by effective and adequate safeguards against
abuse (see M.S. v. Sweden, cited above, pp. 1449-50,
§§ 42-44; Anne-Marie Andersson v. Sweden (dec.)
no. 220022/92, 22 May 1995). Their choice of means clearly fell
within their margin of appreciation, regard being had to such factors
as the nature and seriousness of the interests at stake and the
gravity of the interference (see Z v. Finland, judgment of 25
February 1997, Reports of Judgments and Decisions 1997 I,
p. 348, § 99), and did not render the interference
disproportionate to the legitimate aims pursued.
The
Court therefore agrees with the finding of the national Supreme Court
that the second investigation, including the manner of its
implementation, was necessary for the purposes of the Article 8 §
2 of the Convention. Thus there has been no violation of Article 8 in
the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the summary dismissal of his case by the
City Court and the High Court, which decision was later upheld by the
Supreme Court, violated his right of access to a court. This gave
rise to a violation of Article 6 § 1 of the Convention which, in
so far as is relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
The
Government disputed the applicability of this provision to the
proceedings in issue.
A. Applicability of Article 6 § 1
1. Arguments of the parties
(i) The applicant
The
applicant argued that, having regard to the fact that the Convention
had been incorporated into Norwegian law, his allegations of
violation of the Convention, notably its Article 8, did involve a
dispute over a right that was arguably recognised under national law.
As could be seen from the Supreme Court's decision (at paragraph 39,
quoted at paragraph 36 above), by virtue of the incorporation of
Articles 6 and 13 into the domestic legal system, the limitations on
judicial review implied by Article 54 of the Code of Civil procedure
no longer operated. Moreover, as incorporated, his substantive
Convention rights took precedence over the child welfare authorities'
rights and duties pursuant to section 4-3 of the 1992 Act. He had
further presented weighty arguments for his submission that those
authorities had failed in their duty to examine whether there was a
“reasonable cause” in the sense of this provision, in
particular the validity of the report of concern by the off-duty
police officer and of the other such reports. None of the various
persons and instances who had been contacted by the child welfare
authorities in the second investigations had made any reports
suggesting deficiencies in the applicant's care of the children or
confirming substance abuse.
Furthermore,
the applicant submitted that while it was undisputed that the
measures entailed an interference with his right to respect for
private and family life, being subjected to a section 4-3
investigation was very serious in that it was based on the premise
that there was a reasonable cause to assume that circumstances
prevail which might provide a basis for measures pursuant to Chapter
4 of the 1992 Act. This included not only support measures but also
compulsory taking into care. The commencement of an investigation
gave the child welfare authorities a legal basis for requiring entry
into the family home and for requiring that the child be subject to
medical or other examinations, if need be with the assistance of the
police. The dispute was therefore genuine and serious.
Also,
in the absence of any possibility of administrative appeal, the
institution of judicial proceedings was the only recourse available
to the applicant for obtaining an interlocutory injunction from the
national courts. However the dismissal of his case by the City Court
and the High Court without any evaluation of the merits had
decisively prevented him from obtaining relief in the form of an
interlocutory injunction and a subsequent decision on his complaint
of violation of Article 8 of the Convention. The subsequent summary
dismissal of the applicant's case by the Supreme Court had also been
decisive with respect to his right to obtain judicial review under
Articles 6 and 13 of his Article 8 complaint.
(ii) The Government
The
Government maintained that in the absence of any arguable claim on
the part of the applicant pertaining to his “civil rights”,
Article 6 § 1 of the Convention was not applicable to his
case.
In
this regard the Government emphasised that, according to the Court's
case-law, “the starting point must be the provisions of the
relevant domestic law and their interpretation by the domestic
courts” (see Roche v. the United Kingdom [GC],
no. 32555/96, § 120, ECHR 2005 ...). They also
referred to the Anne-Marie Andersson v. Sweden judgment of
27 August 1997 (Reports of Judgments and Decisions
1997 IV, p. 1417, § 36).
The
Government submitted that, under Norwegian law, a parent had no
standing for lodging an administrative or judicial appeal against a
decision to investigate or against particular measures taken in the
investigation. As held by the Supreme Court in the present case, a
decision to make an investigation pursuant to section 4-3 of the 1992
Act, or to take measures in the course of an investigation such as
obtaining information pursuant to its section 6-4, was not an
individual decision in the sense of the Public Administration Act. As
a general rule, it was not possible to make the lawfulness of such
procedural steps the object of a separate lawsuit pursuant to Article
54 of the Code of Civil Procedure.
Thus
the lower courts had dismissed the applicant's case on the ground
that no legal relationship or right existed under Article 54 of the
Code of Civil Procedure. A decision to carry out an investigation was
merely a step in the child welfare services' preparatory assessment
of whether there were grounds for administrative intervention in the
case. It was thus not decisive for the applicant's rights and
obligations.
The
above was in sharp contrast to the extensive rights under the 1992
Act of administrative and judicial review of decisions relating to
the taking of a child into public care, the deprivation of parental
responsibility and restrictions on access. This difference resulted
from a deliberate choice by the legislator and was based on good
reasons. If a preparatory fact-finding procedure or rather the
parents' attempt to avoid such procedure — were to be deemed a
“civil right” within the meaning of Article 6 § 1 of
the Convention, it could have serious consequences for the welfare of
exposed children in the form of obstruction or postponement. Should,
for example, parents as a matter of parental “rights” be
entitled to challenge in legal proceedings the child welfare
services' presence in a public criminal case concerning child abuse
or the services' right to observe children in public places? These
were examples of fact-finding procedures which could not be viewed as
involving civil rights and which illustrated the difficulty of
defining which fact-finding steps (if any) should be deemed to
involve such rights.
In
the Government's opinion, the scope and manner of the disputed
fact-finding steps taken by the child care authorities were neither
invasive nor serious as regards the applicant's legitimate privacy
interests. Any assessment of the genuineness and seriousness of the
dispute should have due regard to the principle of the best interests
of the child set out in Article 3 of the UN Convention on the
Rights of the Child. Moreover, the disputed investigation did not
result in the determination of any legal rights or obligations on the
part of the applicant or his children.
2. The Court's assessment
The
Court reiterates that, according to the principles laid down in its
case-law (see, for instance, Zander v. Sweden, 25 November
1993, Series A no. 279-B, p. 38, § 22, and
Kerojärvi v. Finland, 19 July 1995, Series A
no. 322, p. 12, § 32; Anne Marie Andersson,
cited above, § 33; Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, §§ 40-64, ECHR 2007 ...;),
it must ascertain whether there was a dispute (“contestation”)
over a “right” which can be said, at least on arguable
grounds, to be recognised under domestic law. The dispute must be
genuine and serious; it may relate not only to the existence of a
right but also to its scope and the manner of its exercise; and the
outcome of the proceedings must be directly decisive. Finally, the
right must be civil in character.
As
regards the first of the above-mentioned criteria, that the dispute
concern a right which arguably exist under national law, it should
further be reiterated that Article 6 § 1 does not guarantee any
particular content for those (civil) “rights” in the
substantive law of the Contracting States: the Court may not create
through the interpretation of Article 6 § 1 a substantive right
which has no legal basis in the State concerned (see Fayed,
cited above, pp. 49-50, § 65). Its guarantees extend only to
rights which can be said, at least on arguable grounds, to be
recognised under domestic law (see James and Others v. the United
Kingdom, judgment of 21 February 1986, Series A no. 98,
and Z and Others, § 81, and the authorities cited
therein, together with McElhinney v. Ireland [GC],
no. 31253/96, § 23, 21 November 2001; and Fogarty
v. the United Kingdom [GC], no. 37112/97, § 117,
ECHR 2001 XI (extracts)). In assessing whether there is a civil
“right” and in determining the substantive or procedural
characterisation to be given to the impugned restriction, the
starting-point must be the provisions of the relevant domestic law
and their interpretation by the domestic courts (see Masson and
Van Zon v. the Netherlands, judgment of 28 September 1995, Series
A no. 327 A, p. 19, § 49). Where, moreover, the superior
national courts have analysed in a comprehensive and convincing
manner the precise nature of the impugned restriction, on the basis
of the relevant Convention case-law and principles drawn therefrom,
this Court would need strong reasons to differ from the conclusion
reached by those courts by substituting its own views for those of
the national courts on a question of interpretation of domestic law
(see Z and Others, cited above, § 101) and by finding,
contrary to their view, that there was arguably a right recognised by
domestic law (see Fogarty, cited above, § 120).
Turning
to the question whether an arguable claim existed in the present
case, the Court observes that the child welfare authorities enjoyed a
very wide discretion in assessing whether the conditions for opening
an investigation pursuant to section 4-3 and for ordering the
disclosure of confidential personal data pursuant to section 6-4 were
fulfilled. In instances where the relevant conditions were deemed to
be fulfilled the authorities were under an obligation to carry out an
investigation and the duty of secrecy pertaining to personal data did
not apply. With regard to the latter point, the present case can be
assimilated to those of Anne Marie Andersson (cited above, §§
34-37) and M.S. v. Sweden (cited above, pp. 1451-52,
§§ 48-50), in which the Court found that a “right
“ to prevent communication of the personal data in question
could not, on arguable grounds, be said to be recognised under
comparable provisions of Swedish law and that, accordingly, Article 6
§ 1 was not applicable. The Court is further mindful of the fact
that the disputed measures were not classified as a “decision”
that could form the subject of an administrative appeal under the
Public Administration Act or a judicial appeal under Article 54 of
the Code of Civil Procedure, according to traditional doctrine and as
applied by the lower courts in the present case. It could hardly be
said that the investigation itself had a decisive effect on the
applicant's rights. Only subsequent measures taken in light of the
findings made during an investigation, notably compulsory taking into
care or restrictions on access, would have been capable of having
such effect. However, no such measures were taken in this case.
However,
having regard to its conclusion below that there was in any event no
failure on the part of the respondent State to comply with the
guarantees of Article 6 § 1, the Court does not find it
necessary to determine whether this provision was applicable to the
instant case.
B. Compliance with Article 6 § 1
1. Arguments of the parties
(i) The applicant
The
applicant maintained that the summary dismissal of his case by the
City Court and the High Court, which decision was later upheld by the
Supreme Court, violated his right of access to a court. The City
Court and the High Court had dismissed his suit on the ground that he
lacked “legal interest” in receiving a judgment on his
claim which was an absolute requirement for access to court under
Article 54 of the Code of Civil Procedure. This assessment had been
made despite the fact that the second investigation was still in
progress at that time and that he had asked for an interlocutory
injunction to stop the violation of his Article 8 rights and for a
declaratory judgment to the effect that the investigation violated
those rights. For the applicant, the importance of a declaratory
judgment was to have it established that it was unlawful to open a
second investigation. He thus quite obviously had a “legal
interest” in the outcome of his lawsuit.
In
any event, praying in aid the opinion of the dissenting member of the
Supreme Court (see paragraph 61 of the Supreme Court's decision
quoted at paragraph 36 above), the applicant submitted that before
dismissing his suit the national courts should have accorded him a
full hearing of the merits of his suit. There was every reason to
allow a detailed investigation of the facts on the case, including an
investigation into the veracity of the reports relied on by the child
welfare authorities. However, at all levels he had been denied the
benefit of presenting his case with testimony and cross examination
of witnesses to demonstrate that the investigation had been
ill-founded. The City Court and the High Court had dismissed the case
without holding a hearing and without any consideration of the
evidence. They had refused even a summary evaluation of the merits of
the case. When the Supreme Court had summarily dismissed the suit
there had been no urgency whatsoever associated with ascertaining
whether the second investigation amounted to a violation of Articles
6 § 1, 8 and 13 of the Convention. The oral hearing before the
Supreme Court had only lasted 1½ day, during which his lawyer
had been able to plead for 4½ hours. The Supreme Court had
only carried out a superficial evaluation of the written evidence and
had heard no witnesses on the issue whether the opening of the second
investigation had had an adequate factual basis.
The
applicant submitted that the Supreme Court had full jurisdiction to
decide whether the lower courts' dismissal without any consideration
of the merits of the applicant's lawsuit was in accordance with
national law. However, acting as a “lawmaker” outside its
normal jurisdiction, it had dismissed the lawsuit on a summary
evaluation of the merits and on the ground that it was manifestly
ill-founded. Instead, the proper way would have been to quash the
unlawful dismissal of his suit and refer the case back to the City
Court for normal review of its merits after hearing witnesses
directly. In this manner, an appeal could be heard by the High Court
and, ultimately, by the Supreme Court. It had not been possible for
the applicant to know in advance that the Supreme Court would proceed
in the way it did and, for example, deem it unnecessary to express a
view on the veracity of the allegation that the applicant had been
“visibly intoxicated”. This meant that it would have been
entirely futile for the applicant to adduce evidence on the merits of
his suit. The Supreme Court in essence did not wish to carry out a
thorough judicial review based on extensive evidence and oral
arguments in court regarding the factual aspects of the lawsuit.
Finally,
as to the Government's argument that he could instead have lodged
compensation proceedings or libel proceedings, such avenues would
only have allowed him to obtain reparation for damage caused by the
investigation. The reason why he had opted for interlocutory
injunction and a declaratory judgment was precisely to put an end to
the investigation.
(ii) The Government
The
Government argued that the Supreme Court's reasons for dismissing the
case fell within the scope of legitimate and proportionate
limitations on the right of access to a court as interpreted by the
European Court in its case-law. The essence of the Supreme Court's
decision upholding the dismissal of the applicant's request for a
declaratory judgment to the effect that the investigation had been
unlawful, was that the investigation had already been closed. The
applicant had not advanced any other legal claims on the basis of the
investigation, for example a claim for damages. In these
circumstances, making the legality of a closed investigation the
object of a lawsuit under Article 54 of the Code of Civil Procedure
would have had no significance for his legal position. The main
purpose of the limitation inherent in Article 54 of the Code of Civil
Procedure requiring a current and actual legal interest in obtaining
a declaratory judgment was to limit, in the interest of the proper
administration of justice, the workload of the courts and not
overburden them with ill-founded cases. The application of this
limitation to the present case did not unduly restrict or reduce the
applicant's access to a court. Therefore the proportionality
requirement was satisfied.
Even
if the applicant had experienced the investigation as a strain and
would regard judicial review as a redress, these issues did not
affect his legal position, given the claim he had chosen to bring to
court. The requirement of a current and actual legal interest did not
impair “the very essence” of the right of access to a
court. Furthermore, other courses of legal action had been available
to him; the applicant could have obtained a full review of his
Article 8 claim notably by bringing a compensation claim or a private
defamation suit. As pointed out by the Supreme Court, he could also
have brought legal action against any administrative decision that
might have been made on the basis of the investigation. Thus, the
Government stated, the applicant would have had legal standing under
Article 54 of the Code of Civil Procedure had he lodged compensation
proceedings under section 3-6 of the Damage Compensation Act 1969 for
infringement of his privacy by the allegedly unfounded investigation.
Under this provision or under Chapter 28 of the Code of Criminal
Procedure and Chapter 23, Article 247, of the Penal Code, he would
also have had standing to bring defamation proceedings for any
allegedly unfounded and defamatory statements in the investigation
report.
The
Government concluded that the Supreme Court's summary dismissal
pursuant to Article 54 of the Code of Civil Procedure concerning the
legality of an investigation which was limited in scope and had
already been concluded, pursued a legitimate aim, complied with the
principle of proportionality and did not impair the very essence of
the right of access to a court.
The
Government in addition emphasised that the applicant's complaints
under the Convention had been subjected to review by the Supreme
Court. In their view, the Supreme Court did have sufficient
jurisdiction to deal with the applicant's appeal for the purposes of
Article 6 § 1. To afford a preliminary- or limited review
of whether a claim was arguable might be compatible with the right of
access to a court. Moreover, it was the material contents of such
review, not its label as under national law as “summary
dismissal”, that mattered. Thus, in the case at hand, the
applicant had been free to submit any documentary evidence and to
call any witnesses he wished and the Supreme Court had decided to
hold a full hearing of the case. All the main documents submitted
with the application to the European Court had been submitted to the
Supreme Court.
The
applicant had not availed himself of the opportunity to have the
written evidence supplemented by witness statements but, had he so
done, a first instance court would have been commissioned to take
witness statements, the transcripts of which would have formed part
of the Supreme Court case file. Since the appeal was limited to
points of law, it was immaterial that the Supreme Court could not
hear witnesses directly. In any event, had the Supreme Court
considered that the appeal could not properly be examined without
hearing witnesses directly, it could have refused leave to appeal, or
showed restraint in setting aside the lower court's assessment of
witness evidence or have quashed the lower court's judgment and
referred the case back for fresh examination.
2. The Court's assessment
The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal (see Golder v. the United
Kingdom, judgment of 21 February 1975, Series A no. 18,
p. 18, § 36). This "right to a court", of
which the right of access is an aspect, may be relied on by anyone
who considers on arguable grounds that an interference with the
exercise of his (civil) rights is unlawful and complains that he has
not had the possibility of submitting that claim to a tribunal
meeting the requirements of Article 6 § 1 (see Le Compte,
Van Leuven and De Meyere v. Belgium, judgment of 23 June
1981, Series A no. 43, p. 20, § 44; Sporrong
and Lönnroth v. Sweden, judgment of 23 September 1982,
Series A no. 52, p. 30, § 81; and
Ashingdane v. the United Kingdom, judgment of 28 May
1985, Series A no. 93, p. 24, § 55). Where
there is a serious and genuine dispute as to the lawfulness of such
an interference, going either to the very existence or the scope of
the asserted civil right, Article 6 § 1 entitles the individual
“to have this question of domestic law determined by a
tribunal” (see Sporrong and Lönnroth v. Sweden,
judgment of 23 September 1982, Series A no. 52, p. 30, § 81;
see also Tre Traktörer AB v. Sweden, judgment of 7 July
1989, Series A no. 159, p. 18, § 40).
The
right is not absolute, however. It may be subject to legitimate
restrictions such as statutory limitation periods, security for costs
orders, regulations concerning minors and persons of unsound mind
(see Stubbings and Others v. the United Kingdom, judgment of
22 October 1996, Reports 1996-IV, pp. 1502-03, §§
51-52; Tolstoy Miloslavsky v. the United Kingdom, judgment of
13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67; and
Golder, cited above, p. 19, § 39). Where the individual's
access is limited either by operation of law or in fact, the Court
will examine whether the limitation imposed impaired the essence of
the right and, in particular, whether it pursued a legitimate aim and
there was a reasonable relationship of proportionality between the
means employed and the aim sought to be achieved (see Ashingdane
v. the United Kingdom, judgment of 28 May 1985, Series
A no. 93, pp. 24-25, § 57). If the restriction is compatible
with these principles, no violation of Article 6 will arise.
In
the present case, the applicant's action under Article 54 of the Code
of Civil Procedure had been dismissed by the national courts because
he was found not to have had an actual and current legal interest in
a declaratory judgment. According to the High Court the disputed
investigation was only a measure taken in the child welfare
authorities' preparation of the case. Since it was not decisive for
the applicant's rights and obligations, he did not have a “legal
interest” in the sense of Article 54 in having it judicially
established whether the investigation had been unlawful. While
acknowledging the correctness of this interpretation according to
national case-law, the Supreme Court emphasised that the
investigation had been closed by the time the case had reached it
(see paragraph 25 of the Supreme Court's decision, quoted at
paragraph 36 above). Furthermore, an investigation under section 4-3
of the 1992 Act and a request for disclosure of personal data under
its section 6-4 did not constitute an individual decision in the
sense of the Public Administration Act but “procedural steps”,
the lawfulness of which could not form “the object of a
separate lawsuit pursuant to Article 54 of the Code of Civil
Procedure”. Moreover, the Supreme Court pointed out that “any
errors made at this stage could be significant in a lawsuit brought
against any administrative decision that might be taken, and could
possibly also form the basis for a claim for damages (see paragraph
30 of the Supreme Court's decision, ibidem). Also, the Supreme Court
had regard to its own jurisprudence, according to which “sparing
society – both the courts and the parties involved –
lawsuits which, even if they were to succeed, would have no
significance for the plaintiff's legal position, constituted a
legitimate aim (see paragraph 35 of the Supreme Court's decision,
ibidem). Having regard to the foregoing, the Court accepts that the
restriction on the right of access to a court based on Article 54 of
the Code of Civil Procedure was in the interest of a proper
administration of justice.
The
Court is also mindful of the general consideration invoked by the
Government, albeit in a different context (that of applicability; see
paragraph 80 above), concerning the particular need to ensure
expediency and efficiency of investigations in order to protect the
best interests of children. A right for a parent to institute court
proceedings with respect to investigations into his or her care of a
child could easily undermine the child welfare services' ability to
carry out their tasks in an effective way. Such a right would
therefore be to the detriment of children living in unacceptable
conditions.
Accordingly,
the limitation on the applicant's right of access to a court
resulting from the decision to dismiss his case was based on
reasonable considerations.
The Court further observes that when addressing its
requests for information about deficiencies in the applicant's care
for the children to his doctor, to the children's respective school
and kindergarten and to the police, the Hillevåg District
Office stated that it had reason to fear that the children were
living in a situation such as that described in section 4-12 of the
1992 Act. As held above, the impugned disclosure of information was
of limited nature, was subjected to secrecy, served to establish
whether there was a need to take public care measures and was lawful
and necessary for the protection of the children's best interests. In
this connection regard should be had to the various considerations
mentioned in paragraph 84 above (concerning the issue of
applicability of Article 6 § 1) to the effect that the applicant
did not have an arguable claim concerning a “right” that
was recognised under national law.
Furthermore,
it is to be noted that, whereas the lower courts dismissed the
applicant's action summarily without a review of the merits, the
Supreme Court afforded him such review. He had appealed against the
High Court's decision on points of law and, by way of special
measure, the Supreme Court proceeded to review the case as a whole
according to the rules applicable to ordinary appeals (see paragraphs
33 and 40-41 above). Under these rules the Supreme Court had full
jurisdiction to decide on every aspect of the appeal, including
questions of fact and of law, and was empowered to quash the lower
courts' decision to dismiss the case and to order a rehearing at
first instance (see paragraph 23 of the Supreme Court's decision,
ibidem, and the dissenting opinion in paragraph 58 quoted at
paragraph 37 above). Before deciding to uphold their dismissal of the
case, the Supreme Court held an oral hearing and carried out a
complete review of questions of fact and of law pertaining to the
lawfulness under Norwegian law of the investigation (see in
particular paragraphs 48-56 of the Supreme Court's decision, ibidem;
see Fayed, cited above, § 78). Whilst the dismissal of
the lawsuit was upheld, it could therefore arguably be maintained, in
view of the scope of the Supreme Court's review, that this review
complied with the right to a court under Article 6 § 1 (see
Zumtobel v. Austria, judgment of 21 September 1993,
Series A no. 268 A, p. 10, § 32;
Fischer v. Austria, judgment of 26 April 1995, Series A no.
312, p. 18, § 34; Z and Others, cited above, § 101).
However, for the reasons set out below, the Court does not find it
necessary to determine this issue.
The
above considerations are not diminished by the applicant's submission
that he could not call witnesses for cross examination before the
Supreme Court. Had he made such a request, oral evidence could have
been taken by the lower court, the written records of which would
then have formed part of the evidence before the Supreme Court.
However, although given a time-limit within which to specify a
request to this effect, he did not avail himself of this possibility
(see paragraph 34 above).
In
light of the above, it cannot be said that the dismissal of the
applicant's action impaired the very essence of his right of access
to a court. Accordingly, there has been no violation of Article 6 §
1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
Relying
essentially on the same facts and circumstances as with respect to
his complaint under Article 6 § 1 of the Convention the
applicant also alleged a breach of Article 13, which reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government disputed the above allegation and invited the Court to
declare it inadmissible as being manifestly ill-founded.
Having
regard to its reasoning and conclusion above in relation to the
complaint under Article 6 § 1, the Court considers that it is
not necessary to examine the case under Article 13 since its
requirements are less strict than, and are here absorbed by those of
Article 6 § 1 (see, amongst many other authorities De
Geouffre de la Pradelle v. France, judgment of 16 December 1992,
Series A no. 253 B, p. 43, § 37; Sporrong and
Lönnroth v. Sweden, judgment of 23 September 1982, Series A
no. 52, p. 32, § 88).
FOR THESE REASONS, THE COURT
Holds unanimously that there has been no
violation of Article 8 of the Convention;
Holds by six votes to one that there has been no
violation of Article 6 § 1 of the Convention;
Holds unanimously that it is not necessary to
examine the case under Article 13 of the Convention.
Done in English, and notified in writing on 25 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Steiner is annexed to this judgment.
C.L.R.
S.N.
PARTLY DISSENTING OPINION OF JUDGE STEINER
(Translation)
Although
I share the majority's view that there has not been a violation of
Article 8, I cannot agree with them regarding the Article 6 aspect.
The
present case concerns one of the most sensitive issues falling within
the realm of family law, namely, the well-being of the children
following a breakdown of the parents' relationship. The situation,
here, is unusual: on the one hand we have a father with a disability,
who was nonetheless awarded custody of his children, and on the other
we have the social services, whose role is to secure the children's
well-being and who have wide powers in that respect. The mother, for
her part, appears to play only a secondary role. The investigations
were in fact therefore carried out in respect of the applicant.
Although conducted in an administrative context, the investigations
are of a type such as to affect the applicant, that is, the
children's father. In order to answer the question as to whether a
dispute over a “right” is in issue, one cannot base
oneself on the fact that the applicant has not been adversely
affected. If one were to proceed in that way, the existence of a
right would be conditional on the – favourable or unfavourable
– outcome of the dispute.
In
this case there was potentially a dispute over a right that is
none other than the very important one of a father's right to
continue to have custody of his children, as awarded him in
accordance with a judicial agreement reached in contentious
proceedings (see paragraph 10 of the Facts). The existence of
a “right” cannot therefore be seriously disputed.
That the right is also a “civil” one is manifestly clear
from the family-law context. This has been confirmed by the Court's
case-law from the outset. Measures affecting parent-child
relationships (visits, return etc.) indisputably fall within the
civil-law sphere, as they are an aspect of contentious proceedings
relating to personal rights (see, for example, O. v. the United
Kingdom, judgment of 8 July 1987, Series A no. 120, §
60). In the present case the measures in question could potentially
have been part of pre-contentious proceedings that could have given
rise to measures affecting custody of the children. The points made
in paragraph 100 of the judgment show clearly that this could have
been the case.
It
was therefore in the applicant's interests for a court to rule on the
reasons for the investigations, their content and the manner in which
they would be conducted. That was not possible because the courts
refused to carry out such a review. Proceedings before the Supreme
Court cannot replace a specific review on the merits.
With
increasing frequency, especially in family-law cases, the decisions
of this Court, rather than having regard to the substantive aspects
of the case – the merits of the solution adopted by the
domestic courts in a particular case being largely considered to be
compatible with the Convention – are tending to place emphasis
on the procedural aspects. It is surprising that this approach was
not followed in the present case.