TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Les conditions d'accueil dans lesquelles les contacts se sont déroulés, toujours en présence de la mère adoptive, toujours, même pas une fois qu'elle est sortie, même si elle ne soit pas sortie, avec un à deux agents administratifs, dont cette femme dont on me dit dans la presse la veille qu'elle avait un lien d'amitié avec la mère adoptive.
AP1 (Applicant): Je tiens à le souligner.
AP1 (Applicant): Chez la mère adoptive, quelquefois, avec la mère adoptive, chez elle, dans son domaine, et la plupart du temps dans une chambre assez froide des services sociaux, où les tensions existantes, habituelles et compréhensibles dans ce type d'affaires ont constitué une circonstance aggravante pour ma cliente.
AP1 (Applicant): De plus, celle-ci s'est toujours plaint régulièrement d'un harcèlement de la part des services sociaux, d'avoir été harcelé, même menacé par la mère adoptive.
AP1 (Applicant): En réponse, les autorités n'ont rien fait pour améliorer cette situation.
AP1 (Applicant): Elles ont uniquement changé une seule fois le superviseur et lui ont proposé une seule fois de lui payer un thérapeute.
AP1 (Applicant): Alors, moi, je veux bien, sauf qu'à cette époque, elle en avait déjà un, le psychologue KM, qui a été auditionné par la Cour d'appel.
AP1 (Applicant): Elles ont en revanche systématiquement refusé qu'elle vienne avec un proche.
AP1 (Applicant): Ce n'est pas moi qui le dis, c'est eux, paragraphe 109 de leurs observations.
AP1 (Applicant): Ou alors qu'elle vienne avec son psychologue KM.
AP1 (Applicant): Elles ont refusé que les contacts se fassent chez elles, alors que c'était ça, en fait, la solution.
AP1 (Applicant): Et elles ont encore refusé que la mère adoptive sorte ne serait-ce qu'une fois, ou elles ont encore refusé d'augmenter les contacts.
AP1 (Applicant): En définitive, alors qu'aucune solution alternative n'a été envisagée, telle qu'une assistance éducative en milieu ouvert, c'est-à-dire un placement chez madame avec un passage régulier des services sociaux, les autorités nationales ont tout fait pour favoriser le lien d'attachement avec la mère.
AP1 (Applicant): Les juges internes ont en effet pu, en se basant sur une interprétation pervertie de la théorie en psychologie infantile dite de l'attachement, élaborée dans les années 60, prononcer la parole à la mère.
Guido Raimondi (JudgeP): Maître, pardonnez-moi, pourrais-je vous demander de conclure, s'il vous plaît?
AP1 (Applicant): Je conclue donc.
AP1 (Applicant): dans deux petites minutes, M. le Président.
AP1 (Applicant): Elles ont pu prononcer l'adoption définitive.
AP1 (Applicant): Je dis pervertie parce que, alors que cette théorie qui n'a pas évolué depuis les années 60 implique de manière fondamentale la mise en place d'une proximité physique répétée de qualité pour développer un lien d'attachement, les autorités ont appliqué cette théorie, oui, à la lettre, mais pas pour ma cliente.
AP1 (Applicant): Ils l'ont appliquée pour la mère adoptive.
AP1 (Applicant): J'en finirai sur l'absence d'appréciation à long terme.
AP1 (Applicant): Je crois qu'il y a aussi un problème dans ce dossier puisque, vous l'avez répété, dans l'affaire Janssen très récemment, vous avez reconnu le caractère impératif de la prise en compte des effets à long terme d'une séparation qui n'a pas du tout été le cas.
AP1 (Applicant): Pour toutes ces raisons, M. le Président,
AP1 (Applicant): mesdames et messieurs les juges de la Cour, je vous demande de constater une violation de l'article 8, paragraphe 1 de la Convention et d'entrer en voie de condamnation à l'Etat à l'égard de l'Etat norvégien. Merci.
Guido Raimondi (JudgeP): Merci, merci, maître.
Guido Raimondi (JudgeP): And I call Mr. Sejersted.
GR1 (Government): the case has been brought before this court by the first applicant, the biological mother.
GR1 (Government): But the main person in this case is the child, the boy.
GR1 (Government): And the basic question should be, have his rights been violated under Article 8?
GR1 (Government): The answer is no.
GR1 (Government): On the contrary, his rights, his best interest has been protected.
GR1 (Government): The national decision under review is, first and foremost, the city court judgment of February 2012.
GR1 (Government): At that point in time, the boy was 3 1⁄2 years old.
GR1 (Government): And because of serious neglect at a very early age, he had been taken into foster care and had formed a strong attachment to his foster parents with whom he had been living for almost his entire life.
GR1 (Government): He had had continuous contact with the biological mother, but they had not established close bonds, and their relationship was not developing in a positive way.
GR1 (Government): Cases like these are always complex and controversial.
GR1 (Government): But in this concrete case of the diligent and extensive national judicial processes, the city court found that it would clearly be in the boy's interest to be allowed to continue living with the parents that he himself considered to be his family and to be allowed the security, the stability, and indeed the dignity of being formally recognized as part of that family by way of adoption.
GR1 (Government): This was not a violation of his right to private and family life under Article 8.
GR1 (Government): On the contrary.
GR1 (Government): And because it was not a breach of his rights, then in a case like this, it cannot at the same time be a breach of the rights of the biological mother because the paramount and overriding concern has to be the best interest of the child.
GR1 (Government): The case has been heard by a chamber of this court, and we have a majority judgment and a minority dissenting opinion.
GR1 (Government): These are two very different texts reflecting very different approaches to the case.
GR1 (Government): The main argument of the Norwegian government is very simple.
GR1 (Government): We asked the Grand Chamber to follow the approach of the chamber majority, which in our view is not only correct, but indeed exemplary, both as regards legal interpretation and actual application of the law.
GR1 (Government): And we invite the Grand Chamber to reaffirm your existing case law on what we consider to be the two most important legal questions of the case, namely first, the margin of appreciation in cases like these, and secondly, the position and the content of the principle of the best interest of the child in cases under Article 8 of the Convention.
GR1 (Government): In contrast, we respectfully but strongly advise against the approach of the minority, in particular their attempt to do a so-called forensic examination of the facts, which is not only contrary to the fourth instance doctrine of this court, which we will argue applies also under Article 8, but would also mean the risk of making the review arbitrary by trying to reassess facts that were firmly established by the national courts many years ago.
GR1 (Government): A few words on the scope of the case before the Grand Chamber.
GR1 (Government): As the chamber will know, the application concerns the decision made by the Social Welfare Board in December 2011, which was upheld after full review by the city court in February 2012.
GR1 (Government): The High Court and the Supreme Court refused to give leave to appeal, and the judgment became final in October 2012.
GR1 (Government): The proceedings and reasons given by the Social Welfare Board and the city court are described in detail in the chamber judgment, and the majority there has correctly focused its review first on the procedure and then on the reasons given by the city court.
GR1 (Government): So the most relevant point in time in this case is February 2012, and this is the situation as assessed by the city court at that specific time.
GR1 (Government): This is obvious, but it still needs to be emphasized because both the applicant and my honorable colleague and the chamber minority and several of the third-party interventions also go into detailed argument about what happened three and a half years earlier when the boy was first taken into public care in 2008.
GR1 (Government): On this, we would like to make two points.
GR1 (Government): First, that no violation of Article 8 took place in the first phase of the case between the years 2008 and 2011.
GR1 (Government): On the contrary, it's well documented in the case that the boy suffered from very serious neglect and that the mother was not capable of taking care of him and that he had to be placed in foster care.
GR1 (Government): And this was established in no less than two extensive processes before the Welfare Board and the city court and the high court.
GR1 (Government): Second, that of course, this first phase, the first three years of the case are part of the factual background, and it's necessary in order to understand the facts of the case, but it is still of limited legal relevance to the assessment that the chamber has to make.
GR1 (Government): The judgment from the first phase, and there are altogether five judgment, are not included in the application to the court, and they could not have been since national remedies were not exhausted, and of course, the time limit has long ago expired.
GR1 (Government): So they are not formally part of the case.
GR1 (Government): But even more important is the substantive point, that when you come to the year 2012 and the actual assessment in real time that the city court had to make at that time, then it was the situation of the parties in 2012 that was the relevant factor in the case.
GR1 (Government): And that is what you have to assess as well.
GR1 (Government): I will then make a few remarks on the legal and factual position of the individuals that are involved in this case.
GR1 (Government): The first applicant is the biological mother.
GR1 (Government): And seen from her perspective, this is a case about her right to protection of family life under Article 8.
GR1 (Government): In this case, life with a biological son, which has not materialized, as the boy was taken into care when he was three weeks old, and they have not lived together since.
GR1 (Government): So her claim must, of course, be assessed under Article 8, but it's not so much a claim to reestablish an existing family life as rather to assert biological right, even under circumstances where there's little or no actual attachment.
GR1 (Government): Must be added that in this case, there's no biological father.
GR1 (Government): The mother did originally name a father, but he was ruled out by DNA test, and she has not named any other.
GR1 (Government): And because of this action on her part, there's never been the alternative option, which would, of course, have been that the boy could have been cared for by his paternal biological family.
GR1 (Government): Then there's the person who has been, as he should, at the center of the case, the boy.
GR1 (Government): He also has a right under Article 8 to protection of his family life.
GR1 (Government): But which family life is that?
GR1 (Government): Is it the biological bond to the mother?
GR1 (Government): Or is it the only family life that he has ever known, with the persons who have taken care of him since he was three weeks old, and who are, in his mind, his actual parents?
GR1 (Government): Furthermore, he has the right not only to protection of family life, but also to protection of private life, including his best interest.
GR1 (Government): And these concepts are not necessarily always in line, though they have to be reconciled in the case law of the court.
GR1 (Government): Finally, we also have the adoptive parents, who are today his legal guardians.
GR1 (Government): They are the ones who probably knows his needs and interests best.
GR1 (Government): Since they're not formally a party to the case, I will not speak anymore on their position, but we do invite the Grand Chamber to study their intervention with care.
GR1 (Government): In this constellation of parties, the basic question is who speaks for the boy, formally and actually?
GR1 (Government): Who can claim to know and represent his best interest?
GR1 (Government): As the Grand Chamber is well aware, the biological mother has brought the case, both on her own behalf and on behalf of the boy.
GR1 (Government): And in the Chamber judgment, her claim to locust standy on behalf of the boy was accepted.
GR1 (Government): With this, the government respectfully disagrees.
GR1 (Government): In the memorial, we have made the argument why the mother should not be given locust standy on behalf of the boy.
GR1 (Government): In our view, the specific criteria in the judgment of Scosari and Giunta versus Italy are to be seen as an exemption, which relies on certain criteria, and these criteria are not fulfilled, as we argue, in this specific case.
GR1 (Government): And the Grand Chamber should be very reluctant to widen the scope of persons granted locust standy to represent children without being either the legal guardian of the child or without the explicit consent of the child concerned.
GR1 (Government): That's, again, the formal argument.
GR1 (Government): And then there's the substantive argument.
GR1 (Government): Regardless of whether the mother is given locust standy on behalf of the boy or not, she is simply not in a position to give his perspective and present his best interest before this court, and she has not really tried.
GR1 (Government): When you examine the arguments put forward by her representative, they are about the situation and position and rights of the mother.
GR1 (Government): It's not an attempt to describe or analyze or represent the best interest of the boy.
GR1 (Government): I turn then to the margin of appreciation in cases like these under Article 8.
GR1 (Government): In our view, the margin of appreciation was correctly applied by the chamber majority, and I will only add a few supplementary points.
GR1 (Government): First, this is the first Grand Chamber case on child welfare measures and Article 8 since the adoption of the Copenhagen Declaration in April this year, in which the member states of the Council of Europe unanimously welcomed the further development of the principle of subsidiarity and the doctrine of the margin of appreciation by the court, and underlined that, and I quote, there may be a range of different but legitimate solutions which could each be compatible with the Convention depending on the context.
GR1 (Government): And that is precisely the point in this case in our view.
GR1 (Government): And indeed, the Norwegian government finds it somewhat surprising that several of the countries that have adopted the Copenhagen Declaration and that in other areas are among the first to speak up for subsidiarity have intervened against Norway in this case.
GR1 (Government): We will not speculate on the grounds for this, but we would like to point out that the most interesting thing about some of these third-party interventions is another point, namely that they illustrate the fact that there's no uniform consensus within the Council of Europe as to the degree and threshold of government intervention in family affairs out of consideration for the best interest of the child.
GR1 (Government): Different countries have different approaches, and this is understandable.
GR1 (Government): In an area that's complex and sensitive and where there are different cultural and social traditions and where different democracies have taken different policy solutions.
GR1 (Government): But the legal implications are clear.
GR1 (Government): When there's no European consensus, the national margin of appreciation should be wider.
GR1 (Government): Thirdly, we would argue that the margin of appreciation should also be wider when there are competing individual interests at stake.
GR1 (Government): In this case, the national court had to strike a balance between the interest of the biological mother and the interest of the child.
GR1 (Government): And this is a very challenging task, and it requires a fairly wide margin of professional expertise and discretion and respect for the fact that the concrete balancing act in the concrete case can only best be done in real time and following direct contact with the people concerned.
GR1 (Government): Then we have to square this relatively wide margin of appreciation with the position formulated by this court that in cases concerning adoption, there should be strict scrutiny.
GR1 (Government): How to reconcile these two?
GR1 (Government): The answer is that, yes, certainly there should be strict scrutiny.
GR1 (Government): But this scrutiny should be directed towards the domestic procedures and towards the reasons given by the national courts, whether they are relevant and sufficient.
GR1 (Government): Strict scrutiny cannot and should not mean a full review of the facts of the case based on the sort of forensic examination that the chamber minority has tried, I would say selectively, to apply.
GR1 (Government): I turn then to the principle of the best interest of the child under Article 8.
GR1 (Government): As the court is well aware, there's no separate article in the European Convention on the rights of the child.
GR1 (Government): And therefore, it has been for many years the duty and obligation of this court to interpret the best interest of the child into Article 8 on protection of private and family life.
GR1 (Government): And this has been done by the court in a string of cases, and it was done by the chamber majority in this case.
GR1 (Government): And we think it was done correctly.
GR1 (Government): And we ask the ground chamber to reaffirm the interpretation on this point made by the majority on these points on the best interest of the child, reflecting to some extent that this is still an evolving area of law and that the need for clarification of interpretation is illustrated both by the minority dissent and several of the third-party interventions.
GR1 (Government): In the memorial, we have given extensive comments on the interpretation of the case law.
GR1 (Government): And I will only here highlight three basic points.
GR1 (Government): First, that it has been established beyond argument that the best interest of the child is of paramount importance under Article 8.
GR1 (Government): And we invite the ground chamber to expand on the issue of paramount importance and, in particular, in line with the UN Convention on the Rights of the Child and the comments to that convention.
GR1 (Government): Second, it has been established that in cases concerning child welfare, including adoption, the child's best interest must come before all other considerations.
GR1 (Government): This means that it's not only one among other factors, but the overriding concern.
GR1 (Government): Or, in other words, if there's a conflict between the best interest of the child and the interest of a biological parent, then the best interest of the child must prevail.
GR1 (Government): Thirdly, as regard the meaning or content of the best interest, the court has formulated an approach with two elements, starting, of course, with the presumption that it is in general in the child's best interest to live and preserve ties to the biological family, but adding then immediately, unless the family has proved particularly unfit.
GR1 (Government): So the concept of particularly unfit is central in the case law.
GR1 (Government): And this then ties in with the second criteria of the court, which is that it is clearly also in the child's interest to ensure its development in a sound environment, which in this context necessarily means a sound environment elsewhere than with the biological family.
GR1 (Government): To this, the court has, in effect, added a third criterion, which is that when a considerable period of time has passed since the child was originally taken into public care, the interest of the child not to have his or her de facto family situation changed again may override the interest of the parent in seeing the family reunited.
GR1 (Government): So when assessing what's in the best interest of any given child, the courts cannot make general assumptions based, for example, on the importance of biology.
GR1 (Government): They must look concretely on the de facto family situation of the child concerned, and they must make an individual assessment for the specific child at the relevant point in time, which may change over time.
GR1 (Government): And finally, the Grand Chamber should recognize that this concrete and individual assessment can only best be done at the national level by the national courts, based on evidence available in real time and direct contact with the people concerned.
GR1 (Government): I then turn to the application of the law to the case at hand, under which we would argue there should be strict scrutiny by this chamber on two points.
GR1 (Government): First, the domestic process, and secondly, the reasons given by the city courts, and some words on each of these.
GR1 (Government): In this case, it is uncontested that the domestic processes were extensive and thorough and diligent.
GR1 (Government): In the chamber judgment, the majority is precise, but relatively brief on this crucial point, and this does not seem to be disputed by the minority, which only briefly and very selectively refer to the national process, and where the main argument instead seems to be a warning against what they call the so-called excessive focus on procedures.
GR1 (Government): Against this background, the Norwegian government must emphasize before the ground chamber both the general importance of national procedures in the case law of this court and the very extensive procedural guarantees that were given in this specific case.
GR1 (Government): And furthermore, we would emphasize that the procedural review is closely linked to the issue of substantive review.
GR1 (Government): The better the national process, the stronger the presumption that the facts of the case have been correctly assessed.
GR1 (Government): Or in other words, the more comprehensive the national domestic process, the higher the threshold should be for the court to set aside the findings of the national courts, except, of course, on points of pure legal interpretation.
GR1 (Government): And this is important to the case at hand because in this case, the national processes were comprehensive and they lived up to and indeed exceeded any procedural requirements that may flow from the convention.
GR1 (Government): To just remind the ground chamber on the basic points.
GR1 (Government): First, in the first phase of the case, between 2008 and 2010, there were two rounds of judicial review.
GR1 (Government): First, there was the judicial review of the emergency decision.
GR1 (Government): That was heard by the Social Welfare Board and the city court.
GR1 (Government): And then there was the review of the permanent decision to take the boy into foster care.
GR1 (Government): That was heard by the Social Welfare Board, the city court, and the high court.
GR1 (Government): And that was only the first phase.
GR1 (Government): And then comes the second phase, which is the one that has been brought before the court between 2011 and 2012, and which is the adoption proceedings.
GR1 (Government): And they were heard once again, first by the Social Welfare Board, and then again with full review by the city court.
GR1 (Government): In our case, this means that the contested decision was given a full judicial assessment in two rounds.
GR1 (Government): Each time there was an oral hearing lasting three days.
GR1 (Government): They usually start at nine in the morning and last until four in the afternoon, as well as extensive written submissions.
GR1 (Government): Each time the whole case file was scrutinized.
GR1 (Government): Each time, 21 witnesses were heard and examined, including the applicant, witnesses called by her lawyers, witnesses called by the welfare authorities, and expert witnesses before the court in psychology and child welfare.
GR1 (Government): And each time the first applicant was represented by legal counsel paid for by the state.
GR1 (Government): This was then appealed afterwards to the high court, which found that the reasons given by the city court were sound and convincing.