TrustHLT/LaCour huggingface dataset:
GR1 (Government): And finally, before the appeals selection committee of the Supreme Court, which held that the appeal could not succeed.
GR1 (Government): So in conclusion, this was a national process that can stand up to any level of scrutiny, however strict.
GR1 (Government): And this is important in itself, but it's also important as the point of departure for the next phase of the court's review, namely that of the reasons given by the city court.
GR1 (Government): The criterion for the review of the national reasons is whether they are relevant and sufficient in order to justify the necessity of the interference under article 8.
GR1 (Government): And the Norwegian government holds that the answer is clearly yes.
GR1 (Government): The reasons provided were relevant and sufficient, again, by any standard, no matter how strict the scrutiny, no matter what margin or appreciation.
GR1 (Government): On this point, we invite the Grand Chamber first to study a note that the reasons given by the Norwegian city court are detailed and extensive.
GR1 (Government): It is written in the style that we use in the court in Norway, which is rather elaborate and more so than in many other European countries.
GR1 (Government): We then invite the Grand Chamber to study how the review was done by the chamber majority, which is indeed strict scrutiny, examining the reasoning of the city court point by point against the criteria established in the case law of the court for assessing cases like this.
GR1 (Government): And on this point, they concluded, the chamber majority, that yes, there were reasons to conclude that there were exceptional circumstances in this case.
GR1 (Government): And yes, there were reasons to conclude that the mother was particularly unfit, not in general, but particularly unfit to take care of a child that had spent three and a half years in foster care and with whom she had very limited and weak ties.
GR1 (Government): And yes, there were reasons to conclude that the boy was vulnerable and had special needs.
GR1 (Government): And yes, three and a half years is a considerable period of time in this context.
GR1 (Government): And yes, the child welfare authorities and the city court were clearly guided by the best interest of the boy and the need to strike a fair balance in a very complex case.
GR1 (Government): And yes, seen together, these reasons are adequate and sufficient to conclude that it would clearly be in the boy's best interest to continue to stay with the only family that he had ever known and to be allowed the stability and security of becoming a full member of that family.
GR1 (Government): In contrast, the argument of the chamber minority is, in our view, more difficult to follow and to some extent mixes the timeline and the criteria for review.
GR1 (Government): It differs from the majority text on several important points, but there are, in particular, two which appear to be decisive and on which I will therefore comment.
GR1 (Government): The first issue is that of the mother's caretaking abilities.
GR1 (Government): And here, the minority simply does not believe in the validity of the national assessment.
GR1 (Government): Instead, they point selectively to some of the elements of the case and, in particular, to the fact that in 2012, she had established a new family.
GR1 (Government): The response to this is that this is a factual assessment on a point which was extensively examined at the national level.
GR1 (Government): The new family life of the mother was established before the case was brought, before the Social Welfare Board and the city court, and it was precisely the starting point of the whole review by the Welfare Board and the court.
GR1 (Government): And on this point, her caretaking abilities, the court heard a number of witnesses.
GR1 (Government): They examined the mother herself.
GR1 (Government): She could bring any witness she wanted, and they heard expert witnesses.
GR1 (Government): And this is clearly reflected in the reasons given by the city court, which should be taken as the correct factual assessment at that point in time.
GR1 (Government): A second issue for the minority is whether the authorities have considered the long-term effect of the child or the permanent nature of adoption, which cuts the legal ties of the child to the biological mother.
GR1 (Government): And here, the criticism is that this is simply not reflected in the reasoning of the city court.
GR1 (Government): With this, the government simply disagrees.
GR1 (Government): Of course, the long-term interest of the boy was assessed explicitly and implicitly.
GR1 (Government): This was a case about adoption, and adoption necessarily means cutting the legal ties to the biological parent and forming new legal ties to the foster parents.
GR1 (Government): And that's what adoption review is all about.
GR1 (Government): And this is what the city court considered, and this is reflected in the reasoning.
GR1 (Government): So this can be added that in situations like this, when the realistic alternatives are either prolonged foster care or permanent adoption, then under Norwegian law, there is a certain preference for adoption, which is stronger than in some other countries.
GR1 (Government): This is an informed policy choice, which has been taken by the Norwegian legislature based on empirical research and democratic debate.
GR1 (Government): And the reasons for this is, therefore, to be found in public reports and white papers, some of which have now been submitted to the court.
GR1 (Government): So there you will also find the reasons for this choice.
GR1 (Government): A final issue, which has been raised by the applicant and several of the interventions, is whether the authorities have done enough to fulfil the positive obligation to the mother under Article 8 to work towards reunification of the biological family.
GR1 (Government): And here again, the government disagrees with the criticism, both as regards the presentation of the law and the actual assessment.
GR1 (Government): As to the law, it's correct that in the case law of this court, reunification of the biological family has been formulated as an aim and a guiding principle.
GR1 (Government): But it's also quite clear from the case law that this aim must be reconciled with the superior obligation to protect the best interest of the specific child and that there is no obligation to pursue endless attempts at reunification if there's no progress, especially not when this is harmful to the child concerned.
GR1 (Government): The decisive criterion in the case law is whether the national authorities have made such efforts as can reasonably be demanded.
GR1 (Government): And if we then apply that to the facts of the case, it's simply not correct that the authorities have not fulfilled their positive obligations to the mother.
GR1 (Government): On the contrary, they have repeatedly tried to assist her and help her.
GR1 (Government): She has repeatedly been offered counselling on how to improve her caretaking abilities and the relationship to the boy, which for the most part she has turned down.
GR1 (Government): And as for the visiting sessions, there were altogether 32 of these in the course of three and a half years.
GR1 (Government): And the Grand Chamber now has the records from all of these sessions, which show that the authorities did their best to organise the sessions in such a way that her needs were met.
GR1 (Government): Some of the sessions worked well, some not so well.
GR1 (Government): But the overall picture was that there were no actual progress in her relationship to the boy or her understanding of the situation and his special needs and what it would require on her part to take back a child which had formed new bonds with a new family.
GR1 (Government): So the fact is that the child welfare authorities did all that can reasonably be expected, but after three and a half years without progress, the professional assessment was that it would not be in the boy's best interest to proceed further.
GR1 (Government): And that is an assessment which the court should respect.
GR1 (Government): Finally, a few words, almost finally, a few words on the more general aspect, which is the strong general criticism of the Norwegian child welfare that has been voiced in this case, both by the applicant and some of the third party intervention and on which my honourable colleague spent a lot of time in his statement.
GR1 (Government): In this case, there is a surprising general criticism of the Norwegian system and indeed the Scandinavian system, and it is being put forward as a systemic problem in some way.
GR1 (Government): To this, we have two responses before this grand chamber.
GR1 (Government): First, that it's not relevant, and second, that it's not correct.
GR1 (Government): It's not relevant to this court because the grand chamber must review each case individually on its own merits.
GR1 (Government): And second, it's not true because it's simply not correct that there's something basically flawed with the Norwegian child welfare system.
GR1 (Government): On the contrary, this system is probably one of the best developed and professional child welfare systems in Europe, and it is also one of those, I would think, that takes the principle of the best interest of the child and the UN Convention on the Rights of the Child most seriously.
GR1 (Government): Having said that, there are certainly policy variations between states in this field, such as in this case, the assessment of what's in a child's best interest when the realistic choice is between long-term foster care or institutionalized care or adoption with a new family.
GR1 (Government): In these cases, the Norwegian law is more tuned to adoption than in some other countries.
GR1 (Government): Not all, but in some other countries.
GR1 (Government): And this is a policy choice which is based on research, which shows that children, on average, have a more positive development than children, if they are adopted, than children who remain under public care.
GR1 (Government): And it's a policy choice that should be respected as well within the European national and democratic margin of appreciation.
GR1 (Government): In response to the criticism, we have found it necessary to explain Norwegian child welfare in some detail in Annex 1 to the memorial, as well as in the final observations.
GR1 (Government): And here, the Grand Chamber can find all the relevant facts and figures if you wish to consult them.
GR1 (Government): And of course, we are very willing to answer any questions on this part.
GR1 (Government): But the proper thing to do for this chamber would be to disregard these allegations altogether when you assess this concrete case.
GR1 (Government): was this a difficult case for the national authorities and courts?
GR1 (Government): Yes, of course it was.
GR1 (Government): These cases are always difficult, always sensitive, always complex, always deeply personal.
GR1 (Government): And this case was no exception, as seen by the fact that the city court spent three days in an oral hearing and examined 21 witnesses.
GR1 (Government): Were there elements in this process that, in hindsight, could have been better, maybe?
GR1 (Government): Processes can always be better.
GR1 (Government): There's always something to be learned.
GR1 (Government): And the outcome of any child welfare case will always be controversial and debatable.
GR1 (Government): But does that mean that Norway has violated Article 8 of the European Convention on Human Rights?
GR1 (Government): No.
GR1 (Government): Emphatically, no.
GR1 (Government): On the contrary, the basic story in this case is the opposite.
GR1 (Government): This is a story of correct intervention by the child welfare authorities.
GR1 (Government): This is a case in which the national authorities have tried their very best to protect the best interests of the boy, as they are positively obliged to do, both under the UN Convention on the Rights of the Child, under the Norwegian Constitution, under Norwegian statutory law, and, indeed, we would argue, under Article 8 of the Convention.
GR1 (Government): And that cannot be in breach at the same time of this convention.
Guido Raimondi (JudgeP): Thank you very much Mr. Sejersted.
Guido Raimondi (JudgeP): I thank both parties for their interventions and now I invite my colleagues, the judges of the Grand Chamber who wish to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): I see Judge Pere Pastor. Please.
Pere Pastor Vilanova (Judge): J'ai une question qui est dirigée aux deux parties.
Pere Pastor Vilanova (Judge): La question est la suivante.
Pere Pastor Vilanova (Judge): Comment s'est déroulée, dans le détail, l'exécution de la mesure d'urgence du 17 octobre 2008 par laquelle X fut confié à une famille d'accueil?
Guido Raimondi (JudgeP): Merci beaucoup. Now, Judge Spano, please.
Robert Spano (Judge): This case is centered by the parties very much around what is the role of this court in cases of this nature.
Robert Spano (Judge): And Mr. Sajistad, you said three things during your pleadings
Robert Spano (Judge): which prompt my question.
Robert Spano (Judge): The first is you said we need to assess the situation at the point in time when the decision in question, the forced adoption decision was taken in 2012.
Robert Spano (Judge): You accepted that the court must apply strict scrutiny and therefore assess whether there were relevant and sufficient reasons.
Robert Spano (Judge): I want to proceed on the basis that that is something the court will agree with you with.
Robert Spano (Judge): That remains to be seen.
Robert Spano (Judge): But my question is on that basis.
Robert Spano (Judge): In this case, we have a court judgment, the city court judgment of February 2012, where the applicant presents a claim that the situation at that point in time had changed.
Robert Spano (Judge): She was married.
Robert Spano (Judge): She had another child.
Robert Spano (Judge): And I want your view on how we and I should understand the city court's judgment in relation to that claim made by the applicant at that point.
Robert Spano (Judge): The city court's judgment, this is page 11 of the judgment, the court says the court agrees with the county social welfare board that the mother has not changed in such a way as to indicate it is now highly probable that she will be able to provide X with proper care.
Robert Spano (Judge): The court endorses the county social welfare board's grounds.
Robert Spano (Judge): In the court's view, the mother's clear limitations as a caregiver cannot be mitigated by an adapted transitional scheme, assistance measures, or support from the mother's network.
Robert Spano (Judge): Then the court says, and here is what I would like your input on, and I would also ask Mr. Diodone if he has a view.
Robert Spano (Judge): The court will not discuss the other arguments regarding the mother's ability to provide care in more detail as returning X is in any case not an option due to the serious problems it would cause X to be moved from the foster home.
Robert Spano (Judge): So my question is, Mr. Syestad, should I
Robert Spano (Judge): read the city court's judgment as taking a clear position on the applicant's central claim as regards the situation in 2012 that her situation as regards marriage and her caregiving of another child was not examined as such, at least in the reasoning there is no reference to that?
Robert Spano (Judge): Or is there another way to read the judgment?
Robert Spano (Judge): I also draw attention to your observations, paragraph 165, where the government makes its own assessment where it says, it would not have been correct to set the assessments with regard to exercise with reference to vague descriptions of the first applicant's care for her daughter.
Robert Spano (Judge): May I ask, why were they vague?
Robert Spano (Judge): Was there a lack of information at that point in the file which would clarify the nature of that role and in the global assessment by the Drammenkurt?
Robert Spano (Judge): So just a clarification on how I should read the Drammenkurt's judgment on that.
Robert Spano (Judge): Just a second question, which is the issue in relation to the legal test we're applying.
Robert Spano (Judge): The government refers to the two-limb child best interest test.
Robert Spano (Judge): Now as you said, and my question is prompted by another part of your pleading, you said, the test presumes first that the child should remain with the biological family unless the parent is considered particularly unfit.
Robert Spano (Judge): Then we would go to the second limb of the test, which is the stability of the environment.
Robert Spano (Judge): May I ask this question?
Robert Spano (Judge): If this court were to consider that the fitness assessment, the first limb, might be called into question because of lack of relevant and sufficient reasons, would you still consider that under the second limb there would be an adequate justification for the measure in question?
Robert Spano (Judge): In other words, if the first limb of the child best interest test under the court's case law is not met, is there a violation already there?
Robert Spano (Judge): Or would you defend the claim further and say, even though it is not clear that she was particularly unfit, in any event, your argument would be there would be no violation under the second limb.
Robert Spano (Judge): Could you clarify the relationship between the two?
Robert Spano (Judge): And I would also ask Mr. Diudonne to comment, if he so wishes.
Guido Raimondi (JudgeP): Judge Ravarani, please.
Georges Ravarani (Judge): I will have a very small factual question.
Georges Ravarani (Judge): It's perhaps difficult for the representative of the government.
Georges Ravarani (Judge): The question is addressed to the government to answer, but I will nevertheless try.
Georges Ravarani (Judge): Why didn't the assistant midwife who made an assessment at the moment when the applicant left the hospital, when the child was three weeks old, why didn't she appear in further procedures whereas others did?
Georges Ravarani (Judge): She disappeared after having given her assessment when the child was three weeks old, and others appeared further on, but she didn't.
Georges Ravarani (Judge): Is there a reason for that?
Georges Ravarani (Judge): Thank you very much.
Guido Raimondi (JudgeP): There are no further questions, so the Court will now withdraw for 20 minutes, following which the parties will be able to submit their brief observations in reply to each other's submissions and reply to the questions from the judges.
Guido Raimondi (JudgeP): The floor is yours.
AP1 (Applicant): Monsieur le Président, merci.
AP1 (Applicant): Mesdames et messieurs de la Cour, je répondrai dans l'ordre, tout simplement, des questions.
AP1 (Applicant): Ce qui s'est passé, j'ai interrogé durant ces minutes de pause ma cliente et ses conseils, ce qui s'est passé concrètement dans le détail.
AP1 (Applicant): Monsieur le juge, c'est assez simple.
AP1 (Applicant): Le jour du 17, donc, nous sommes le 17 octobre 2008, X à quelques semaines, 3 semaines, les autorités sont venues.
AP1 (Applicant): Donc, je dirais sans prévenir, Mme Le Pen n'a pas été prévenue, n'a pas été même conditionnée.
AP1 (Applicant): On aurait pu attendre cela, au moins, de la part des autorités.
AP1 (Applicant): Ils sont simplement venus, ont pris l'enfant et ont demandé, dans la foulée, à Mme Le Pen de faire ses affaires et de s'en aller.
AP1 (Applicant): Très concrètement, tout ce que j'avais à répondre sur cette question, elle s'en est allée, tout simplement, avec son sac, sans aucune explication, sans aucun support, assistance de quelque nature que ce soit.
AP1 (Applicant): Pour la question 2, alors, il y a plusieurs questions dans la question, si j'ai bien compris, M. Spano.
AP1 (Applicant): Première partie de la question, telle que je l'ai comprise, le Drammen City Court, 22 février 2012, le test à SQSE tient une partie significative dans ce jugement.
AP1 (Applicant): C'est grâce à ce test-là, ou plutôt malheureusement, à cause de ce test-là, que Mme Le Pen a été évaluée sur la base centrale de ce test comme particulièrement indigne ou particulièrement incapable, plutôt, d'élever X.
AP1 (Applicant): Alors que, et donc c'est à la page 11 de ce jugement du 22 février 2012, c'est là, moi, où je vois une forme vraiment de peine perpétuelle, où c'est la double peine, où c'est la peine capitale.
AP1 (Applicant): Et puis on l'a, comme l'on veut, en matière civile, on a, sur cet simple outil de dépistage qui est assez critiqué, la méthodologie au niveau scientifique, je ne vais pas développer les arguments ici, mais je vous renvoie à mon mémoire sur ce point-là, sur les critiques scientifiques sur la validité de ce test et sur, finalement, le peu de sérieux.
AP1 (Applicant): Il y a ici une disproportion avec, basée de manière centrale, l'incapacité parentale de ma cliente sur un test qui est lui-même sujet à caution.
AP1 (Applicant): Surtout, ce qui me choque, c'est qu'à la page 11, on estime que jamais Mme Le Ben ne pourra, il n'y a aucune forme d'assistance possible pour redresser la barre, et notamment même pas en se basant sur son family network.
AP1 (Applicant): Alors que ses parents sont juste derrière moi.
AP1 (Applicant): Ma cliente a deux frères et soeurs qui n'ont jamais eu de problème avec les services sociaux.
AP1 (Applicant): Ses parents n'ont jamais eu également de problème ou n'ont jamais eu également eux-mêmes aucun problème, aucune difficulté avec les services sociaux.
AP1 (Applicant): Comment peut-on dire à ma cliente que vous n'avez même pas, que ça ne sert à rien d'aller fouiller, finalement, d'aller voir si on pourrait envisager peut-être un placement dans la famille élargie, alors que cette famille n'a jamais posé de problème?
AP1 (Applicant): Et puis, nous sommes en février 2012, mais en mars 2012, un mois après, le 21 mars 2012, une enquête des services sociaux de la ville d'à côté.
AP1 (Applicant): Dramen Child Welfare Authorities Investigation.
AP1 (Applicant): Le 21 mars 2012, quelqu'un des services sociaux de Dramen, un mois après, vient témoigner à la barre qu'il n'y a absolument aucune difficulté relationnelle, d'attachement ou de réponse émotionnelle entre Mme Le Pen et son nouvel enfant, sa fille, que vous voyez d'ailleurs ici.
AP1 (Applicant): Alors, c'est quand même surprenant, la motivation du jugement du 22 février 2012.
AP1 (Applicant): La deuxième partie de votre question, si j'ai bien compris, vous m'excuserez de ne pas avoir suivi dans le détail votre question argumentée, portée sur le paragraphe 165 de la décision.
AP1 (Applicant): Mais moi, je suis aussi surpris de cette appréciation selon laquelle les capacités parentales de madame étaient trop vagues pour qu'on puisse se faire une idée.
AP1 (Applicant): Là aussi, moi, j'attends plutôt la réponse de mes contradicteurs.
AP1 (Applicant): Sur la troisième question, il est tout à fait clair et assez très surprenant, voire même inquiétant, que durant les cinq premiers jours, tout allait bien.
AP1 (Applicant): La chef des sages-femmes, MB, s'est fendue d'un rapport très positif qui s'est basé notamment sur des...
AP1 (Applicant): journals, en anglais, donc sur des documents d'ordre médicaux motivés et étayés, que nous ne retrouvons d'ailleurs pas dans le dossier.
AP1 (Applicant): Elle a complètement disparu après trois semaines.
AP1 (Applicant): Nous nous en plaignons et nous ne comprenons pas pourquoi cette femme, qui était à la demande d'ailleurs des services sociaux, qui a rendu un rapport particulièrement positif pour la mère, qui était équilibrée d'ailleurs, parce qu'elle disait aussi, attention, elle a aussi besoin des fois d'aide.
AP1 (Applicant): Ce fut la même chose avec le psychologue privé de Mme Lobel, KM.
AP1 (Applicant): KM est un expert sur les listes d'experts.
AP1 (Applicant): Alors certes, il n'a pas rendu, malheureusement, de rapport.
AP1 (Applicant): Il aurait dû... Bon, maintenant, c'est fait.
AP1 (Applicant): Il a témoigné à la barre des capacités parentales et qu'à son avis, X devait être retourné avec une période d'adaptation à sa mère.