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March 2020
The Norwegian state's interpretation of the ECtHR judgments about our child protection Barnevernet
By Marianne Haslev Skånland
professor emeritus
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The Norwegian original of this article was published in the newspaper Norge IDAG on 5 March 2020 and here in a formated version on 6 March.
The English version is very slightly longer, incorporating some details which are not equally well known or so easily obvious to foreign readers as to Norwegians in the middle of the present debate.
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It is hard to believe that Norway's authorities, and Norwegian jurists otherwise prominent in society, can have read the judgments from the European Court of Human Rights (ECtHR) in Strasbourg that they express opinions on. What we are served up especially by experts on human rights law in media interviews, articles and statements seems heavily infested with misinterpretation, trivialising, stubbornness, denial, blaming victims, and attemps to explain away unpleasantness. Actually there are more variants and on several counts. Obviously the judgments have not made official Norway open eyes and ears to any extent. Yet.
Probably the most important issues are: the question of reparation, the question of the child's best interest and existing evidence in research of what this is, and the question of truth in the description of facts. I hope to return to these issues at another time; in this article I want to go into the question of what the content of the judgments actually says.
A sporty game of win and lose?
When asked a couple of years ago why Norway has met with strong protest against Barnevernet, our authorities were at first used to answer: "We have actually won two cases in the ECtHR." Then another was added. Then there was one case in which Norway was found guilty of violation of human rights. Then an appeal of one of the first three was admitted to the Court's Grand Chamber, leading to a conviction instead of acquittal (the Strand Lobben case, cf below). Then the state was convicted in three further cases. Every time the question of number of cases comes up now, defenders of official practice hurry to say "We have lost 5 but have won 2".
Expressions like 'win' may not be the wisest when spokesmen of the authorities use it about serious issues of abuse carried out against individuals by the authorities. I seem to remember that it was commented on by Gro Hillestad Thune, former Norwegian judge in Strasbourg. She said that the authorities present it like a football game. "5 against 2" sounds as if the decisions could go either way. Perhaps in order to suggest that Norwegian child protection is foremost in the world, therefore the result was rather accidental – the ECtHR might in those five cases almost just as soon have exonerated Norway, which was anyway just convicted of trifling offenses of a formal nature?
Norway's attorney general was the first man out with such an interpretation after the Lobben judgment: He expressed that what Norway had been found guilty of, was that our courts had not explained carefully enough how necessary and correct Barnevernet's actions had been.
Is it possible, then, to read the judgments in this manner?
A chronology and a report which are circumvented
Something the authorities do not speak of is the existence of a chronology here, one which is highly relevant.
In the three cases in which the applicants to the Court in Strasbourg did not win through with their complaints, judgments were passed in 2017 and in April 2018.
For the last 6-7 years, and especially after the internationally well-known Bodnariu case, several nations have found that European child protection is problematic, especially in the Western countries, and especially visibly in Norwegian practice. The Council of Europe therefore ordered an investigation, which led to a very critical report about European child protection with examples particularly taken from Norway. It was presented and passed with a large majority on 28 June 2018.
In the debate in the Council of Europe, the speech of one of the Norwegian parliamentarians, Morten Wold, was honest and quite courageous, supporting the criticism of Norway. Two other Norwegian MPs tried to undermine the content of the report with many proposals for amendment. They did not succeed in Strasbourg, but back home afterwards one could read a curious article published by the Norwegian parliament Stortinget, claiming the opposite: that Norway's delegation had turned 'the balance in the resolution' into a victory for Norwegian Barnevern.
The European Court of Human Rights is the court of the Council of Europe, passing judgments which are in accordance with the European Convention on Human Rights (ECHR). In September 2018 the Court published their unanimous judgment convicting Norway in the Jansen case. The Lobben case appeal came up before the Grand Chamber on 17 October the same autumn and led to conviction of Norway with 13 votes against 4. The judgment was ready in the spring of 2019, but was announced in September. Then followed judgments in three more cases in November and December 2019. In all three Norway was convicted unanimously.
(Blondina) Jansen v. Norway
European Court of Human Rights, 6 September 2018
Grand Chamber judgment (key case):
(Trude) Strand Lobben and others v. Norway
European Court of Human Rights, 10 September 2019
Grand Chamber hearing:
Strand Lobben and Others v. Norway (no. 37283/13)
European Court of Human Rights, 17 October 2018
KO and VM v. Norway (Ken Olsen and Vibeke Morrissey)
European Court of Human Rights, 19 November 2019
A.S. v. Norway
European Court of Human Rights, 17 December 2019
(Mariya) Abdi Ibrahim v. Norway
European Court of Human Rights, 17 December 2019
The 5 judgments coming after the report of the Council of Europe have, therefore, all gone against the Norwegian state. And notably, they are all about issues such as Norway having broken off children's bonds to their parents, having cut off meaningful communication and the enjoyment of being together of parents and children, having prevented return of the children to their parents, having proceeded to forcibly adopting away the children. These are among actions which the ECHR's Article 8 is meant to guard people against.
The report of the Council of Europe seems to have inaugurated increased understanding and concern in the ECtHR. The new Norwegian judge in the ECtHR, too, appears to have taken note of the alarm expressed in the report, and is said to have been active in the spring of 2019 in the ECtHR having taken up child protection cases from applicants against Norway – they ended up being over 30 – for so-called 'communication', i.e the Court asking Norway for an explanation. This is a step in the direction of a case being taken up for pleading and judgment in the Chamber, if Norway continues to defend the decisions made in the Norwegian judicial system.
More cases in the wake of the Council of Europe's report
Some more recent cases seem to lend support to the supposition of alarm having been sounded in the Council of Europe and the ECtHR:
Pavlova v. Russia and Kungurov v. Russia 18 February 2020, Y.I. v. Russia 25 February 2020.
In the first two, Russia was convicted of violation of Article 8 because the authorities had, without going into the question of whether it was necessary, refused visit in prison by the jailed person's wife, respectively the jailed person's wife and children.
In the third case, the authorities had taken the mother's three children into care and then deprived her of her parental authority, this also depriving her of e.g her right to visit the children. One child was placed with its father, the other two in a children's home. The mother had been involved in drug abuse, but is living with her mother, who has also been willing to take care of the children while her daughter is in treatment. The children's mother has taken active steps to get away from her drug abuse.
The judgment emphasises that the state's actions have hurt the children; they have strong feelings for their mother and grandmother. Russia has not tried to give positive help in order to keep the family unit together, such as letting the grandmother help, and has removed the mother's parental authority from her despite the fact that she has all the time shown great interest in the lives of the children and has actively tried to contact them. The ECtHR also sees it as wrong towards the children to have split the three children up. In the ECtHR, a state has a wider latitude of assessment of the necessity, in particular situations, of taking children into care – a wider so-called 'margin of appreciation' – than it has in its further treatment of a case. But under the circumstances that prevailed in this case, Russia is convicted of a violation including that of taking into care the two who were placed in a children's home – in other words, the state is found guilty not only of its subsequent actions but of the taking into care itself. The state's action was not proportionate to the legitimate aim pursued.
In Cinta v. Romania, this judgment too from 18 February 2020, Romania is convicted of having, through court judgments, not assisted a separated father in maintaining and developing his relationship to his daughter. The father is schizophrenic but under dependable medication. Romania is also found guilty of discrimination, in this instance of a person suffering from a mental illness. The judgment refers, as one would expect, to the case K. and T. v. Finland from 2001, a case where the children's mother was schizophrenic. That, too, was an important case, a Grand Chamber judgment, Finland being convicted even of the taking into care of the new-born baby in hospital. As far as I know, this was the first judgment from the ECtHR in which a state was convicted even of the taking into care itself.
In these four new cases, the ECtHR repeatedly emphasises that the right to family life is to be placed much higher than the states have done. The fact that helping the family is problematic, that visits are difficult or onerous to manage, that a parent has problems of drug abuse or illness – none of this is enough to relieve the state of its duty of actively helping to keep the family together, nor does it give the authorities the right to force the family apart. The judgments repeat that the authorities have a margin of appreciation in considering whether taking into care is necessary in concrete situations, but that a taking into care is always a temporary measure. In such cases, the state is obliged to work energetically to help in such a way that children and parents can be reunited as soon as possible.
A revealing past – and the future
In addition to the five cases for which Norway has now been convicted, a sixth case against Norway exists which is extremely revealing. In 1996 Norway was found guilty of a violation of Article 8 in the case of Adele Johansen's daughter:
(Adele) Johansen v. Norway
European Court of Human Rights, 27 June 1996
There, too, Norway was convicted of having cut off visits so that reunion was at last claimed to be impossible. In the further development, it led to forced adoption away of the daughter, in spite of the judgment in the ECtHR. Since the judgment dates from 1996, it becomes the most important of all, giving, as it does, a perspective to Norway's child protection policies and the child protection legislation of today. Norway has not, in the 23 years since 1996, done anything at all to repair the offenses against mother and daughter Johansen and to change legislation and practice. On the contrary, even a superficial examination will show our authorities to have continued in the same manner, with increased energy. Very many families have experienced the same blindness from judicial authorities and legislators, the same resistance against acquiring proper knowledge and understanding of the basis of the reigning ideology, and therefore the same tragedies.
It remains to be seen whether the remaining more than 20 cases against Norway pending in the ECtHR will lead to more convictions of the state. It is of course possible that Barnevernet and our courts have in some of them made better motivated decisions than in the 6 cases for which Norway has been convicted, all of which show a total ignorance of the depth of children's emotional bonds to their biological parents.
In the meantime, the ECtHR in Strasbourg has notified Norway that it taken up yet another case for communication, and also that it does not accept the answer which Norway has given to their question, after the judgment in the Jansen case in 2019, of what Norway will do to put right the violations in the Jansen case. (Norway does not intend to do anything to give Blondina Jansen back any of her human rights.)
Our state's preferred interpretation of the judgments against it is that we can continue carrying out child protection in the same manner, just as long as we explain more thoroughly how good it is. Our attorney general has probably fixed on some formulations of the following type:
from the Lobben judgment:
"the City Court’s judgment contained no information on how that vulnerability could have continued despite the fact that he had lived in foster care since the age of three weeks";
from Y.I. against Russia:
"The domestic authorities failed to demonstrate convincingly that ....";
or, from a press release about a case:
"the Government had not demonstrated that the use of lethal force had been absolutely necessary".
My guess is, however, that this way of expressing itself is the ECtHR's polite way of saying that they do not think the states have proven their allegations and that the ECtHR therefore concludes that such proofs do not exist. It seems doubtful to interpret e.g the last example to mean that the ECtHR grants that lethal violence on the part of the authorities had been necessary, and that Russia just had to be more thorough in explaining that it was. We furthermore know that while the Norwegian government, in the Grand Chamber hearing in Strasbourg in the Lobben case, claimed that Trude Lobben's son had been in mortal danger in his mother's care, this claim had been proven to be untrue, among other things on the basis of evidence from the hospital.
To return to the official Norwegian explanation of the judgments: Claiming that all will be well when Norwegian courts write longer judgments based on Barnevernet's allegations, is hot air. It is the content of what Barnevernet does that is criticised by the Strasbourg judges. One can just read the judgments for oneself. Their contents are no so difficult to understand.
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See also
Marianne Haslev Skånland:
The Council of Europe with a critical report on European child protection systems
MHS's home page, 4 July 2018
– : Convictions of Norway in the European Court of Human Rights (ECtHR) in cases concerning child protection (Barnevern)
MHS's home page, last update 12 March 2020
– : Human rights in Norway – as low as they can go
MHS's home page, July 2004
Lennart Sjöberg:
Adele Johansen vs. Norway: A mother fighting for her child
nkmr, 30 November 2001
Erik Rolfsen:
Child protection and the emperor's new clothes
MHS's hjemmeside, 15 September 2015
– : L'ASE (Barnevernet) et les nouveaux habits de l'empereur
MHS's home page, 4 août 2015l
Siv Westerberg:
Pflegschaft der Abkassierer
MHS's home page, 14 Juli 1995
Johannes Idsø:
Child welfare and the abuse of power
MHS's home page, 19 March 2019
Jan Simonsen:
A little more humility, please!
MHS's home page, 20 March 2016
Marianne Haslev Skånland:
The child protection case in Norway about the Czech children of Eva Michaláková
MHS's home page, 19 October 2015
– : Professional support for the Bodnariu family and other victims of Barnevernet
MHS's home page, 29 February 2016
– : Separating children from their parents – is Norway better than the USA?
MHS's home page, 16 July 2018
– : Dr Mengele & Co in action in Norwegian homes?
MHS's home page, August 2011
Arne Jarl Hatlem:
Barnevernet – the CPS – equals merciless Norwegians
MHS's home page, 29 July 2018
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