TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): And that the opportunity that exists within the national legal framework to reopen the case is only a remedy of procedural nature and the question merits no real examination.
AP1 (Applicant): I now come to my conclusion.
AP1 (Applicant): We gratefully adopt the submissions made by the parties intervening on behalf of the applicant, and those are the Czech government, the Turkish government and the Air Centre.
AP1 (Applicant): To conclude, in addition to the breach of Article 8 already found by the Chamber in its judgment, there has in the present case been a violation of Article 9 in conjunction with Article 2 of Protocol 1.
AP1 (Applicant): Mr. President, Members of the Court, those are my submissions.
Jon Fridrik Kjølbro (JudgeP): Thank you very much, Ms. Lutina.
Jon Fridrik Kjølbro (JudgeP): I can confirm that your oral intervention was heard clear and loudly without any kind of interruption.
Jon Fridrik Kjølbro (JudgeP): Thank you very much.
Jon Fridrik Kjølbro (JudgeP): I now call on Mr. Emberland.
Jon Fridrik Kjølbro (JudgeP): You have the floor, please.
GR1 (Government): Thank you, Mr. President, distinguished members of the Grand Chamber.
GR1 (Government): Many themes would have deserved attention today.
GR1 (Government): The government submission is divided in three separate sections.
GR1 (Government): They respond to issues raised in the applicants memorial and in the submissions of the third party intervenors.
GR1 (Government): In part one, I will argue for the Grand Chamber to affirm the general principles of interpretation in child welfare cases under Article 8 of the Convention, as they were established by the Grand Chamber in Strandlobben versus Norway on the 10th of September 2019.
GR1 (Government): Then in part two, I will show what measures Norwegian authorities took to aid the applicant in improving her caring and parental skills with regard to her son's extraordinary needs and how these measures and the plights of the child are reflected in the domestic decisions.
GR1 (Government): Finally, in part three, the government wishes to emphasize what domestic authorities did to find a foster home that was attuned to the boy's religious and cultural roots.
GR1 (Government): The government submits that Norwegian authorities have done all that could reasonably be expected in this regard and invites the Grand Chamber to find that the applicant's rights under the Convention have not been violated also when considering the religious and cultural aspects of the present case.
GR1 (Government): I turn to the first point, notably the general principles of interpretation of Article 8 of the Convention in child welfare cases.
GR1 (Government): 16 months ago, the Grand Chamber by a majority adopted such principles in Strandlobben versus Norway.
GR1 (Government): They are set out in paragraphs 202 through 213 in that judgment.
GR1 (Government): In line with the fourth instance doctrine and the principle of subsidiarity, the Strandlobben principles provide for a procedural oversight of domestic authorities' practice.
GR1 (Government): They emphasize that the reasoning of domestic authorities' decisions must reflect the genuine, broad and up-to-date assessments of the competing interests of the children and their biological parents.
GR1 (Government): They also emphasize that it is consistent with Article 8 that ultimately the best interests of the individual child may have to prevail.
GR1 (Government): And this is also in line with the government's obligations under the UN Convention on the Rights of the Child.
GR1 (Government): This procedural approach and the emphasis on the rights of the child had the support of 11 out of 17 judges.
GR1 (Government): A minority of 6 judges wished to go further in their control and to carry out a substantive scrutiny of Norwegian courts' decisions.
GR1 (Government): The government has explicitly stated to the courts in written observations in a number of cases after Strandlobben that Norway accepts the principles in Strandlobben as appropriate corrections to domestic authorities' practice.
GR1 (Government): This the government has also done in its communication with the Committee of Ministers in the course of reporting on the implementation of both the Strandlobben case and subsequent chamber judgments.
GR1 (Government): The action plan submitted to the Committee of Ministers has been enclosed to the government's memorial.
GR1 (Government): It shows, among other things, that Norwegian decision-makers, the Supreme Court, appellate courts, first instance courts, and municipal and state administrative authorities, in their practice in individual cases, now explicitly accommodate the directives in the court's case law following Strandlobben.
GR1 (Government): Also, the government is currently in the last legs of preparing a bill for a new Child Welfare Act, which also will reflect the court's directives.
GR1 (Government): Parliament, too, is very much concerned that the court's practice is implemented.
GR1 (Government): Let there be no doubt that Norway, through all three branches of government, has done and is doing its utmost to accommodate the court's requirements as they flow from the Strandlobben principles.
GR1 (Government): The government has observed that the Czech government, in their intervention in the present case, argues that the present Grand Chamber should further develop the criteria established in Strandlobben.
GR1 (Government): By this, the Czech government means that the Grand Chamber should substitute the procedural review with a substantive review that did not win favour at the court in 2019.
GR1 (Government): The Czech government has argued for this amendment to the general principles in third-party interventions in all child welfare cases against Norway the last year and a half.
GR1 (Government): The Norwegian government has further observed at the court, since Strandlobben has adopted altogether six chamber judgments against Norway that concern child welfare measures.
GR1 (Government): While they formally professed their allegiance to the Grand Chamber, while they formally professed their allegiance to the procedural review of Strandlobben, the concrete assessments in all of them have elements of substantive scrutiny that do not clearly reflect the principles set forth in paragraphs 202 through 213 of the judgment.
GR1 (Government): The government has also observed that the court in those cases has made no clear mention of the individual children's individual interests and the relevance in the overall assessment to be made.
GR1 (Government): This gives some reason for concern.
GR1 (Government): Mr. President, distinguished members of this court,
GR1 (Government): the court has stated time and again that it is in the interest of legal certainty, foreseeability and equality before the law, that it should not depart without good reason from precedents laid down in previous cases.
GR1 (Government): As we currently said, that good reason equals essentially the court responding to changing conditions within the respondent states and within contracting states generally, for example, to any evolving convergence as to the standards to be achieved.
GR1 (Government): Departure from settled law should, in other words, be informed by external factors in the form of changes in the practice of the member states of the Council of Europe.
GR1 (Government): My government with respect submits that there has been no relevant development to suggest that the present ground chamber should amend the general principles of interpretation adopted-
Jon Fridrik Kjølbro (JudgeP): Emberland, sorry for interrupting you, Emberland.
Jon Fridrik Kjølbro (JudgeP): We just lost you for half a minute or something like that.
Jon Fridrik Kjølbro (JudgeP): Could you just go a little bit back and then continue again?
Jon Fridrik Kjølbro (JudgeP): Thank you.
GR1 (Government): I will retrace. Thank you.
GR1 (Government): I start with saying that the court has stated time and again that it is in the interest of legal certainty, foreseeability and equality before the law, that it should not depart without good reason from precedence laid down in previous cases.
GR1 (Government): The Grand Chamber has recurrently said that good reason equals essentially the court responding to changing conditions within the respondent state and within contracting states generally, for example, to any evolving convergence as to the standards to be achieved.
GR1 (Government): Departure from settled law should, in other words, be informed by external factors in the form of changes in the practice of the Member States of the Council of Europe.
GR1 (Government): My government, with respect, submits that there has been no relevant development to suggest that the present chamber should amend the general principles of interpretation adopted merely 16 months ago.
GR1 (Government): Further, and this is also laid out in detail in the government's memorial, the court itself in its practice since September 2019 has referred to the Stranglöppen principles as the guiding norm in at least 18 judgments and published decisions against other states and in cases against Norway, the court now refers to them as well established case law.
GR1 (Government): Consequently, the court intends to resolve a number of remaining cases against Norway pursuant to the well established case law procedure in Article 28 of the Convention.
GR1 (Government): It would be prudent for the purposes of legal certainty, foreseeability and equality before the law at the Grand Chamber in the present case states that paragraphs 202 through 213 of Stranglöppen remain the general principles of interpretation as far as Article 8 of the Convention is concerned.
GR1 (Government): I therefore invite the present Grand Chamber to affirm the approach in Stranglöppen.
GR1 (Government): Their correctives reflect the principles of subsidiarity, the complexities of such cases, the fact that all cases need individual consideration and the importance of protecting the interests of the children as well as those of the parents.
GR1 (Government): The Norwegian government on this point fully agrees with the Danish government, third party intervention in the present case and I refer to Denmark's submission.
GR1 (Government): I now move to my second point, what Norwegian authorities did to assist the applicant while she cared for her son, as well as after the care order was issued for her to be able to reunite with the boy and how these measures have been thoroughly assessed and reflected in the domestic decisions, which in the end found that the boy's interests had to prevail over those of the applicant.
GR1 (Government): It is important to underscore this for several reasons.
GR1 (Government): First, the applicant in her memorial claims that the authorities never had the aim of pursuing reunification.
GR1 (Government): Further, the air centre, the Czech government and the Turkish government in their submissions appear to believe that domestic authorities did not genuinely seek reunification and that they failed to undertake steps in this regard.
GR1 (Government): Third, the chamber was of the opinion that insufficient weight was attached to the aim that the applicant and ex enjoy family life.
GR1 (Government): And the chamber had difficulties in seeing that the domestic authorities may be said to have taken any real measures to facilitate family reunification in the longer term after the care order had been issued.
GR1 (Government): The chamber also doubted the necessity of the contact regime that was in place and what could be drawn from contact sessions between the applicant and her son.
GR1 (Government): With respect, Mr. President, the facts do not support these assumptions and the views also do not sufficiently address the predicaments of the applicant's son and his rights to have his physical and mental well-being protected under the convention.
GR1 (Government): Three years passed from the boy was placed in an emergency care home on the 6th of November 2010 to the municipal child welfare office initially applied for foster parent adoption on the 11th of September 2013.
GR1 (Government): And adoption was ultimately confirmed by the courts two years later.
GR1 (Government): What measures did the authorities adopt within this period and what really drove the authorities to suggest adoption?
GR1 (Government): These matters are well reflected in the domestic court decisions.
GR1 (Government): The government's memorial to the grand chamber refers to several assistant measures that were adopted both prior to the emergency order and after that date.
GR1 (Government): They include the initial and comprehensive follow up from two asylum centers due to concern for the care provided for the boy after arrival in Norway.
GR1 (Government): It was then provided for the applicant to live in the house of professional contracted by the municipality to help assist and to guide the applicant who at the time lived with the boy.
GR1 (Government): From January 2011, the applicant for two years stayed in a shared house for a single minor asylum seekers where she was followed up day and night by therapists.
GR1 (Government): Then in January 2013, she moved into a flat in a shared house where staff followed her up regularly.
GR1 (Government): The case file shows that she throughout received continuous and systematic training in everyday activities.
GR1 (Government): She received professional follow up amounting to a 30 percent of a full time position.
GR1 (Government): She was also afforded considerable medical and educational assistance and operation improved her hearing impairments.
GR1 (Government): As for considerable assistance, she completed secondary school and started high school.
GR1 (Government): Also in the relevant three year period, the applicant was granted contact sessions every other month with the boy.
GR1 (Government): All these measures were conducive of aiding the applicant in maturing, becoming independent and be able to act as a responsible adult that could again look after the boy.
GR1 (Government): The fact is, however, that the applicant did not show any improvements in her caring skills towards the child during these three years.
GR1 (Government): Reports from the contact sessions, including those from independent experts appointed by domestic courts, show that the applicants continue to display this regard for the child's needs.
GR1 (Government): At the same time, there is ample evidence that the child had extraordinary needs that had to be addressed and that he reacted strongly to the contact sessions.
GR1 (Government): The boy's needs for stability and care saturate the documents from all domestic proceedings, and they are reiterated in Section 2.3 of the government's memorial.
GR1 (Government): The interest of the boy ultimately had to prevail over those of the applicant, totally in line with the Stroudlobbin dictum that the child's best interests must come before all other considerations.
GR1 (Government): The Chamber, in its reasoning, appears to have relied on parts of the High Court judgments of 2015, which decided on foster parent adoption as its primary source of reference.
GR1 (Government): This is perhaps not surprising, as the applicant's complaint formally builds on this judgment.
GR1 (Government): But as the High Court considered adoption only, it did not directly restate all details of the measures that had been offered to the applicant at prior stages.
GR1 (Government): But the High Court judgment explicitly stated that it relied upon the findings of the District Court and the County Social Welfare Board's decisions with regard to adoption.
GR1 (Government): And these decisions, in turn, refer to the set of judgments and decisions that in 2010 and 2011, considered the care order where the assessment of measures adopted to facilitate reunification took center stage.
GR1 (Government): All instances took besides into account and assessed the reports from numerous experts, where details about assistant measures and what contact sessions showed were fleshed out in detail.
GR1 (Government): The High Court judgment and all its predecessors also had regard to the needs of the boy, what his extraordinary predicaments were in the relevant period and why, after three years of balancing the competing interests of the applicant and her son, it was deemed imperative to prioritize the child's needs over those of his mother.
GR1 (Government): By contrast, it is noteworthy that the individual needs of the boy are more or less completely unmentioned in the applicant's memorial, in the third party interventions submitted in support of a case and in the concrete assessment carried out by the chamber.
GR1 (Government): Mr. President, the decisions of the Norwegian courts are comprehensive in their reasoning, both with regards to facts and law, but one will in no case find all necessary information of the facts and their evidence spelled out word by word in one single document.
GR1 (Government): The court supervision of domestic court decisions must acknowledge how a multiple instance system of the decision, domestic decision making functions in practice and account for it when carrying out its oversight.
GR1 (Government): The government has furnished the court with all relevant court and board decisions in English translation, and most of the expert opinions have been translated for the court's convenience.
GR1 (Government): The grand chamber should take particular note of the following that clearly separate the present case from what fell short of the court scrutiny in Strømlobben.
GR1 (Government): First, the relevant court and board decisions are comprehensively reasoned and they generally, at length and in detail, account for the applicant's interests, which are weighed against those of the child.
GR1 (Government): Second, the decisions are based on and they reflect a massive amount of up-to-date evidentiary material at each stage of proceedings.
GR1 (Government): In fact, altogether, seven different independent expert opinions were procured in the process, and they form an important basis of the decisions taken by domestic courts.
GR1 (Government): When considering the totality of evidence, which is reflected in the domestic decisions, the grand chamber will observe that comprehensive assistant measures were in place and that a number of measures were taken to ensure that the applicant could function as an adult care person in the life of the boy.
GR1 (Government): In the end, the facts show that the applicant was not capable of providing the required care, and based on a very thorough evidentiary basis, the boy's needs therefore had to take priority.
GR1 (Government): This was not done lightly, and as the material also shows, opinions differed both among experts and decision makers as to what ultimately was the appropriate solution at the different stages and in the end.
GR1 (Government): But this is also a reality of domestic decision making.
GR1 (Government): The courts of justice must decide, and if views differ, the court's opinion must prevail.
GR1 (Government): In the present case, the high court by a majority in 2015 ultimately found sufficient reason to consent to the boy's adoption, as the evidence demonstrated that reunification and the prospect of the applicant being able to care for her son were untenable despite a host of measures taken for a period of more than four years to assist in attaining these goals.
GR1 (Government): Finally, the government will turn to the religious and cultural perspectives of the present case.
GR1 (Government): In the memorial, the government has argued that they can be accommodated within the scope of Article 8 of the Convention.
GR1 (Government): If the Grand Chamber finds that they should be subsumed under another provision of the Convention, the government submits that Article 9 is more suitable than Article 2 of Protocol 1.
GR1 (Government): As the facts of the case go beyond the educational context that Article 2 of Protocol 1 primarily regulates, this is dealt with in detail in Section 5 of the government's memorial.
GR1 (Government): Regardless of which provision is chosen, however, the rights of the applicant must be balanced against what was the best solution for the boy.
GR1 (Government): The applicant in her memorial erroneously submits that no attempts were made to find culturally matched foster placements, and that domestic authorities did not satisfy the requirement in Section 415 of the Norwegian Child Welfare Act that appropriate consideration shall be made to the child's ethnic, religious, cultural, and linguistic background.
GR1 (Government): And the Turkish government in their submission states that it is not clear whether the national authorities have conducted a thorough assessment on the choice of the foster parents and exhausted all other available options before placing the child into foster care with a different religion.
GR1 (Government): The Chamber, for its part, did not visibly consider the measures taken by the authorities to find a Muslim foster home and made, in fact, scarce mentioning of the case's religious and cultural perspectives, while they were dealt with at length by domestic courts, including in the High Court judgment in 2015.
GR1 (Government): Again, the government invites the Grand Chamber to review the domestic court decisions closely, and I wish to make two remarks in this respect.
GR1 (Government): First, I refer to Section 2.8 of the government's memorial, where the High Court assessment of the religious and cultural aspects have been rendered in full.
GR1 (Government): The High Court heard and relied on the witness statements of two experts on Islam regarding the adoption of a Muslim boy with Christian foster parents, and had considerable and detailed regard to the applicants' and the boy's interests in having their faith respected.
GR1 (Government): In the view of the government, the High Court's reasoning might inspire the Grand Chamber's accommodation of the religious and cultural aspects, regardless of which provision of the Convention is deemed to be the right one.
GR1 (Government): Second, the government has observed that the High Court assumed that there were no available foster parents with a more similar cultural background, and it said that it was known that there is a serious shortage of foster parents with minority backgrounds.
GR1 (Government): The High Court stated, moreover, that further information about which assessments were made by the Child Welfare Service when a child was placed in a foster home with ethnically Norwegian parents did not emerge during the presentation of evidence.
GR1 (Government): This might be true, as the choice of foster home was not an issue when the High Court in 2015 decided on the foster parents' adoption.
GR1 (Government): These statements may lead one to believe that such matters were not duly considered by domestic courts.
GR1 (Government): Yet the High Court in the same paragraph referred to the County Social Welfare Board's consideration of these matters five years prior, when the choice of foster parents was indeed at the centre of attention.
GR1 (Government): In its decision on 10 December 2010, the Board said as follows, and I quote, Nothing would be better than if the Child Welfare Service, in cooperation with the Office for Children, Youth and Family Affairs, managed to find a foster home that can be deemed capable to address to the special ethnic, religious, cultural and linguistic considerations in this case.
GR1 (Government): The Board therefore expects this possibility to be looked into as far as time permits, which will in a normal way leave the further work of choosing a placement to the Child Welfare Service, end of quote.
GR1 (Government): It also transpires from the same Board decision that the applicant had asked for the boy to be placed with a relative.
GR1 (Government): But the applicant in the subsequent district court proceedings renounced that claim for placement in a Muslim foster home out of consideration for the boy's attachment to his foster parents at the time.