5.  A was born in 2011 and is the daughter of the applicant and Y. Both the mother and father had just turned 19 when the child was born. They had been engaged to be married, but the relationship had ended, and the applicant did not name Y as the child’s father. At the father’s initiative, paternity was established by a court on 18 April 2012. The applicant and the child’s father later agreed on joint parental responsibility.
6.  When the child was born, the applicant was living at home with her parents, who are Norwegian Roma. Shortly afterwards, she and A were thrown out by the applicant’s father – the child’s maternal grandfather – and the applicant, assisted by the social security authorities, decided that she and the child would stay at R. family centre – a parent-child institution. They moved back home after just under three weeks, but returned to the family centre three weeks later because the maternal grandfather had been violent to the applicant.
7.  While the applicant was staying at R. family centre, on 1 December 2011 the grandfather stabbed a neighbouring married couple who were the parents of one of the applicant’s friends. The background to this was that he believed that they had helped the applicant to move to the family centre. The applicant was equipped with a panic alarm (voldsalarm).
8.  The applicant and A stayed at R. family centre for three and a half months, until 16 February 2012. They then moved back in with the applicant’s family. Shortly thereafter, the Child Welfare Service applied for a care order pursuant to section 4-12(a) of the Child Welfare Act (see paragraph 67 below).
9.  On 14 June 2012 the Child Welfare Service issued an emergency care order to place A in an emergency foster home at a secret address, in accordance with the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 67 below). The decision stated that the Child Welfare Service had known the family network for many years and that the family, including the applicant, evaded measures of assistance. The County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker – “the Board”) approved the emergency placement the following day. On 18 June 2012 A was moved to the emergency foster home, and on 21 June 2012 it was decided that the applicant would have one hour of supervised contact per week. The reason given for the supervision was the risk that the child might be abducted.
10.  On 25 June 2012 the Board reviewed the emergency care order. It noted that the Child Welfare Service had been informed by the staff at R. family centre that there were considerable deficiencies in the applicant’s ability to care for herself and the child, but that she would not accept assistance. Moreover, the Board observed, inter alia, that the applicant had repeatedly moved back from the family centre to her parent’s home, where she herself had been the victim of violence numerous times as well as witness to violence against other family members and neighbours, even after A had been born. A witness from R. family centre had testified that the mother would not take advice, had herself had a troubled childhood and was under the dominance of her father. The witness mentioned that the applicant’s father took decisions for the applicant and controlled her finances. He had also taken her to the social security authorities and presented her as having intellectual disability (psykisk utviklingshemmet) in order to obtain an apartment for himself. The Board added that even when the applicant had lived in a secure environment at R. family centre, she had followed her father’s order to return home.
11.  On 23 August 2012 Oslo City Court (tingrett) reviewed and upheld the emergency care order. It noted, inter alia, that there was an obvious (nærliggende) risk that the applicant’s father would influence her to prevent the Child Welfare Service from involving itself any further. It took account of how her father had prevented her from going to school, which meant that she still could not read or write and did not have the necessary knowledge for day-to-day life. Further, the City Court found that the applicant was obviously still under strong influence of her father, as had been lately illustrated by how she had two times left the family centre (see paragraphs 6 and 8 above) without notice, because her father had asked her to do so. For this reason, the City Court did not attach weight to the applicant’s statements before that court to the effect that she was now willing to accept assistance measures. Moreover, the applicant had stated that she was now living with a friend, but had been unable to give the address. A’s father, Y, supported the emergency care order before the City Court.
12.  After three months, on 26 September 2012, A was moved from the emergency foster home to her current foster home. The background to this move was that the emergency foster mother had discovered a car following her after a contact session at the child welfare centre two days before, on 24 September. She had reported this to the centre’s emergency foster care department, which had found out that the car belonged to the applicant’s maternal grandfather. The car had been driven by a young man who was alone in the car. Because of the abduction risk, the Child Welfare Service made an emergency order that the applicant would have supervised contact with A one hour per month in suitable premises and with police assistance. A similar decision was made in relation to Y the next day, on 27 September.
13.  On 5 October 2012 Y initiated custody proceedings against the applicant and requested an order that A live in his care. The appointed expert in that case, A.G.H., concluded that neither parent should have care and control of or contact with A.
14.  On 18 October 2012 the Board reviewed the orders on contact rights of 26 and 27 September 2012 (see paragraph 12 above). It found, inter alia, that the incident on 24 September, viewed in conjunction with the other information about the behaviour of the mother’s family and network, showed that the applicant and Y could both be subject to threats or pressure, which again implied a risk that A might be kidnapped. The Board noted that it would be demanding to carry out any contact sessions without A’s identity being revealed to the applicant’s family and network, but the risk would be reduced with fewer visits. The Board also attached weight to A being a vulnerable child who had experienced considerable instability and disorder in her first year. She had recently been moved again and had a particular need for calm and stability.
15.  On 19 December 2012 the Board, composed of a chairperson qualified to act as a professional judge, a psychologist and a layperson, in accordance with the first paragraphs of sections 7-2 and 7-5 of the Child Welfare Act, issued a care order pursuant to section 4-12(a) of that act (see paragraph 67 below). Before the Board, A’s father, Y, supported the care order and requested visiting rights.
16.  On the issue of daily care, the Board considered that A was a vulnerable girl who had already experienced several broken relationships. Referring to case documents and testimony, it assessed A as insecure in her attachment to care persons. The Board further noted that A scored as “delayed” and otherwise obtained low scores on tests relating to motor skills, communication and social functioning. It appeared clear that she had been under-stimulated until she was placed in the emergency foster home. She had therefore, in the Board’s view, a particular need for stable and predictable surroundings and a care that could further her development (utviklingsfremmende omsorg). The Board found it clearly proved that there were serious deficiencies in terms of the personal contact and security needed by A in light of her age and development. This could be related to the applicant’s own growing up not having been secure and adequate (trygg og god), including that she had been kept away from, or had chosen not to avail herself of, assistance measures from child welfare and health authorities.
17.  The Board remarked that the child welfare authorities should consider offering the applicant treatment of her mental health, and further assessed that she would not be able to benefit from child welfare assistance measures without her first obtaining help with her mental health. In addition, the Board noted that the material conditions had considerable deficiencies: the applicant had been assisted to get her own apartment, but had not paid rent or managed to obtain documents in order to have the rent covered by the social security authorities. She had stated that her father had received all the money she had been granted as financial support, to which she had only had limited access. The Board considered that she, in short time, could end up in a situation where she could not offer the child a place to live and food. The Board examined the issue of A’s Roma heritage in light of the United Nation’s 1989 Convention on the Rights of the Child (see paragraph 69 below) and the Council of Europe’s 1995 Framework Convention for the Protection of National Minorities (see paragraph 72 below) and concluded that these did not prevent that a care order be issued.
18.  As to the question of contact, the Board stated that this had to be determined in light of the proportionality requirement set out in Article 8 of the Convention as well as the United Nation’s 1989 Convention on the Rights of the Child (see paragraph 69 below). According to the case-law of the European Court of Human Rights, the clear starting point was that a care order should be a temporary measure to be discontinued as soon as circumstances permit. Reference was also made to Johansen v. Norway, 7 August 1996, §§ 78 and 83, Reports of Judgments and Decisions 1996‑III, according to which the authorities had a “normal obligation under Article 8 of the Convention to take measures with a view to reuniting them if the mother were to become able to provide the daughter with a satisfactory upbringing”. At the same time, contact which did not further the child’s development could be limited, and even denied. The Board further noted that according to case-law of the Supreme Court and the European Court of Human Rights, special and compelling reasons were required in order to justify contact to such limited extent that it had to be considered as a breaking off of contact.
19.  The Board went on to examine the instant case in view of the fact that, in its opinion, it would be a long-term placement. This meant that the purpose of contact was for A to get to know her biological origins with a view to potential future attachment. Before the Board, the child welfare authorities had submitted that contact should be denied altogether, because of the risk that A would otherwise be abducted. The Board found it substantiated that it was a member of the applicant’s family who had followed the emergency foster mother on 24 September 2012 (see paragraph 12 above) to find out where A had been placed. However, the Board agreed with the parents that there was quite a leap between following someone in order to find out an address and carrying out an abduction. The Board was therefore of the opinion that there was a “certain risk” of A being kidnapped and kept hidden, but that there was not, at the time it made its decision, a sufficiently present and obvious (aktuell og nærliggende) risk. Two contact sessions had taken place since A had been moved from the emergency foster home into her ordinary foster home following the “car incident”, without anyone attempting to find out her address. Nor had any information about where A had been placed emerged during contact sessions, since she was too young to communicate that information. She would probably be unable to do so for another year.
20.  The Board had not found any other circumstances relating to the contact between the parents and A to indicate that special and compelling reasons for denying contact existed, and gave both parents supervised contact of one hour, four times a year. Neither of them was entitled to know A’s whereabouts.
21.  Both the applicant and Y accepted the care order, but the applicant applied to the City Court for contact to be increased, with the frequency to be decided by the court. The father became a party to the case. He first applied for the Board’s decision to be upheld. He subsequently applied for unsupervised contact. The municipality asked the court to deny both parents contact because of the risk of abduction.
22.  The City Court heard the case from 18 to 19 June 2013. The court’s bench was comprised of one professional judge, one lay judge and one psychologist (see paragraph 68 below). The parties attended with counsel and gave evidence. Eight witnesses were heard.
23.  On 5 July 2013 the City Court gave judgment and ordered that the applicant and Y were not entitled to have contact with A.
24.  The City Court found that the applicant’s father had not altered his need to control the applicant and her child. The court referred to statements the applicant had made to the police, to the extent that her father wanted to take over the care of the child and planned to take the applicant and her daughter abroad, kill the applicant and then take over the care of A. He had allegedly said this only a few hours before he had stabbed the parents of the applicant’s friend (see paragraph 7 above). It was also, to the City Court, unlikely that the applicant had cut off contact with her father. In addition, it was likely to have been the applicant’s family who had followed the emergency foster mother (see paragraph 12 above). There was thus a present and obvious (aktuell og nærliggende) risk of kidnapping. At the age of two, A had already had to change care persons several times, and it could be considerably harmful if she lost her foster parents because of kidnapping or a risk of such. In addition, the applicant’s father could not in any way be expected to be a serious care person for A. Viewed in connection with the contact sessions that had taken place, which had led to the child having negative reactions and challenged the calm and stability in the foster home, this supported the conclusion that the court should not allow any contact. Weighing the different interests, the City Court concluded that a decision to the effect that the applicant would not be entitled to have contact with A, pertained to her best interests.
25.  As to A’s cultural background on her mother’s – the applicant’s – side, the City Court concluded that the Council of Europe’s 1995 Framework Convention for the Protection of National Minorities (see paragraph 72 below) could not lead it to reach a different conclusion as to what was in A’s best interests. It added that it would be limited how much the applicant could teach A about the Roma during four contact sessions yearly, and that A would be given information about her background by the foster parents.
26.  The applicant and Y both appealed to the High Court (lagmannsrett) which heard the case, including testimony from the applicant and the child’s father – who both attended with counsel – and eight witnesses, three of which were experts. It gave judgment on 5 May 2014, dismissing the appeals.
27.  The High Court noted that it was circumstances relating to the applicant’s family that had led it to decide not to allow any contact. It mentioned that the applicant’s father had, over the years, been convicted of possession and use of drugs, driving under the influence of alcohol or drugs (promillekjøring, kjøring i påvirket tilstand), thefts and a stabbing. He had been suspected of violent crimes and charged with attempted murder with the use of a firearm, but the charges had been dropped. The applicant’s mother had been fined and sentenced to imprisonment for violent crimes. Moreover, the High Court noted, the applicant’s father had thrown the applicant out of her home when she had had care of the child, then only newborn. The applicant had explained that she had been subject to violence from her father and abuse from her mother and brother. The High Court noted that the applicant’s father was violent and appeared unpredictable. In addition, there had been the incident with the emergency foster mother being followed (see paragraph 12 above). There was, in conclusion, a risk that the child would be abducted and hidden from the Child Welfare Service. The child had already been a victim of neglect when living with the applicant and the applicant’s parents and there were reasons to fear that she would again be subject to neglect if someone in the applicant’s extended family (storfamilie) kidnapped her. Breaking off A’s relationship to her foster parents, to whom she was developing attachment, at that time, would also in itself be serious.
28.  The High Court also referred to the fact that a psychologist at an outpatient clinic, K.G.F., had reported that A was marked by neglect in her early life. The psychologist recommended that A, because of her socio-emotional difficulties, be referred to the Children’s and Young People’s Psychiatric Out-Patient Clinic (Barne- og ungdomspsykiatrisk poliklinkk). Furthermore, the psychologist recommended that A, because of her somewhat scarce use of language, attention difficulties and early development delay, in time be examined by educational and psychological services (praktisk-pedagogisk tjeneste) for at least one year prior to starting school. The psychologist had reported that A needed that her needs to develop in a completely secure and predictable environment be given priority, which also implied a need for a continued arrangement in which she did not have contact with the applicant. The High Court noted, in addition, that another psychologist, A.G.H., who had been appointed as expert in the proceedings between the parents concerning custody and parental authority (see paragraph 13 above) had already in 2012 recommended that none of the parents should have contact with A, primarily because of the abduction risk.
29.  The High Court disagreed with the Board’s consideration to the effect that, while there was a certain risk of abduction, it could not qualify as present and obvious (aktuell og nærliggende), and special and compelling reasons could therefore not be present. In the High Court’s view, an overall assessment had to be made, in which not only the probability of an abduction would weigh in, but also factors such as the consequences of a possible abduction, the child’s robustness and other consequences that contact would entail for the child. Although the main reason for refusing contact lay in the abduction risk, that risk was not the only argument for denying contact. One unfortunate consequence of the abduction risk was that contact sessions would necessarily have to take place without the foster parents – A’s primary caregivers and those she felt most secure with – present. This could also harm the child’s confidence in the foster parents. In addition, A had had negative reactions to the sessions that had taken place. The foster parents had stated that she, following the sessions, could cry for a week, be sad, wake up during nights as if she had bad dreams and had developed a rash that looked like eczema which the health visitor had said had been stress-related. The problems associated with the contact sessions had to be seen in view of the fact that A was a vulnerable child.
30.  In the view of the High Court, it was not possible for A’s father, Y, to have contact with A either. He had repeatedly been threatened by the applicant’s father, brother and cousin. The court was of the opinion that he could be pressured into disclosing information about A’s whereabouts should it come to his knowledge.
31.  The applicant and Y appealed to the Supreme Court, regarding the application of the law and assessment of the evidence. Written declarations were presented to the court by A.N., a secondary education teacher at a municipal Roma Initiative (Romtiltaket) – an advice centre that gave help and guidance; H., a case officer with the Child Welfare Service, and the psychologist K.G.F. (see paragraph 28 above). They had also given evidence before the City Court and the High Court (see paragraphs 22 and 26 above). Since the High Court had given judgment, the maternal grandfather had started serving a four and a half year sentence in connection with the stabbing in December 2011 (see paragraph 7 above). The Supreme Court had also been informed that the applicant was pregnant and living with the father-to-be (see paragraph 38 below).
32.  In its judgment of 23 October 2014 (Norsk Retstidende (Rt.) 2014 page 976) the Supreme Court first set out the general principles with respect to contact rights, based on the Child Welfare Act, its preparatory works and related Supreme Court case-law, Article 9(3) of the 1989 Convention on the Rights of the Child (see paragraph 69 below) and Article 8 of the Convention on the right to respect for family life as this provision had been interpreted by the European Court of Human Rights in cases such as Johansen v. Norway, cited above; R. and H. v. the United Kingdom (no. 35348/06, § 73, 31 May 2011); and Neulinger and Shuruk v. Switzerland [GC] (no. 41615/07, § 136, ECHR 2010). The Supreme Court additionally observed that the relevant legal standard that could be inferred from the case-law of the European Court of Human Rights – that a child’s ties with its family can only be broken “in very special circumstances” – was also in line with Article 102 and Article 104 viewed in conjunction with Article 92 of the Norwegian Constitution (see paragraph 66 below).
33.  On the topic of A’s Roma identity, the Supreme Court examined, inter alia, Article 30 of the 1989 Convention on the Rights of the Child (see paragraph 69 below), Article 27 of the international Covenant on Civil and Political Rights (see paragraph 71 below), General Comment No. 11 from 2009, the UN Committee on the Rights of the Child (see paragraph 70 below), and Article 5 of the Council of Europe’s Framework Convention for the Protection of National Minorities (see paragraph 72 below).
34.  The Supreme Court considered it somewhat unclear whether the High Court had been of the opinion that the risk of abduction alone was sufficiently high to justify denial of contact. Studying the High Court’s reasons, it found that these could be understood to mean that, in the overall assessment, even a small (“certain”) risk of abduction would be a sufficient basis for denying contact if an abduction would have a strong harmful effect on the child, if the child was vulnerable, and if the child reacted negatively to contact sessions. If this had been the High Court’s point of departure for its assessment, it had not been pertinent. If the risk of abduction could not be said to be real and present (reell og aktuell), contact could not be denied because an abduction would have a severely harmful effect. This also had to apply if the child showed such negative reactions to contact sessions as in the present case, since contact was considered to be in the child’s best interests from a long-term perspective. The Supreme Court also interpreted the municipality to mean that the negative reactions were not in themselves a sufficient basis for denying contact.
35.  When turning to the facts of the instant case, the Supreme Court took into account that there had been no direct presentation of evidence before it, nor had any expert witnesses been appointed, which would normally imply that it would be reluctant to depart from the High Court’s assessment of the facts. In the instant case there were, however, some unclear or new aspects of the case that needed further examination by the High Court. This included A’s maternal grandfather having started serving a four and a half year sentence (see paragraphs 7 and 31 above); two years had passed since the incident in which the emergency foster mother had been followed (see paragraph 12 above) and nothing had happened since to indicate that the applicant’s family was trying to locate A or planning to abduct her; the applicant had grown older and was anew pregnant, now with a father to-be from a different environment; the applicant had gone to school and undergone a work placement. The Supreme Court wanted an assessment of what the foregoing meant in relation to the possibility of the applicant resisting any pressure exerted by her family and also a more thorough assessment concerning Y.
36.  The Supreme Court assumed, as had the High Court, that an abduction would be traumatic for A. She would be torn away from her care situation, and it was unlikely that she would receive satisfactory care if she were hidden from the authorities by someone acting on behalf of her maternal grandfather. The case had still not been sufficiently elucidated before it for it to be satisfied that a real and present (reell og aktuell) risk of abduction existed.
37.  The Supreme Court therefore concluded that the High Court’s judgment be set aside so that the case could be reheard by the High Court.
38.  On 15 October 2014 the applicant had given birth to a son, B, whose father is of half Chilean and half Peruvian descent.
39.  On 3 November 2014, after the case was returned to the High Court from the Supreme Court, the applicant requested that an expert witness be appointed in order to assess her caring skills in respect of B. On 13 January 2015 the court turned the request down. It stated that the key issue was whether a real risk of abduction existed and that an expert assessment of the applicant’s competence to care for her newborn child was not particularly relevant. As to the applicant’s relationship to her own family, and the significance of this with respect to her ability and will to protect A from persons in the family who might pose an abduction risk, it considered that an expert witness would not be particularly qualified to draw a conclusion regarding these circumstances. Insights into these issues could rather be obtained through conversations between the Child Welfare Service and the applicant, and by the applicant’s appearance before the High Court.
40.  The applicant and Y also requested an interim measure to the effect that contact be reestablished in line with the Board’s decision. On 12 December 2014 the High Court turned the request down. It noted that while the Supreme Court under the relevant procedural law had been formally competent to decide on the merits of the case, it had chosen to quash the High Court’s former judgment because the case had been insufficiently elucidated. A meeting with the parties had since been held on 8 December 2014, and the court had then been informed of the child welfare authorities having requested the police to make a report on the abduction risk. The report would be finalised by January-February 2015 and the appeal hearing had been scheduled at 12 March. A new, full hearing, would thus take place in three months’ time and in examining the request for interim measure, the High Court had no further basis on which to assess the abduction risk than that which the Supreme Court had had some one and a half months earlier.
41.  During the appeal hearing from 12 to 13 March 2015 in the contact proceedings, the High Court’s bench was comprised of three professional judges, a lay judge and a psychologist (see paragraph 68 below). The applicant and Y attended with their counsel and gave statements. An officer with the Child Welfare Service attended together with the municipality’s counsel. Seven witnesses were heard, including the child welfare officer.
43.  In its reasoning, the court commenced by noting that it would review all aspects of the case as far as it was elucidated at the time judgment was given.
44.  As a rule, children and parents were entitled to have contact with each other after a child had been taken into care under the first paragraph of section 4-19 of the Child Welfare Act (see paragraph 67 below). When applying this provision, decisive importance had to be attached to finding measures that were in the child’s best interests. This included attaching importance to giving the child stable and good contact with adults and continuity of care. Reference was made to section 4-1 of the Child Welfare Act (ibid.).
45.  Moreover, the Child Welfare Act had to be interpreted and applied in accordance with Norway’s obligations under various conventions. In the present case, the relevant provisions were found in Article 9(3) of the 1989 Convention on the Rights of the Child on the child’s right to regular and direct contact with both parents (see paragraph 69 below) and Article 8 of the Convention on the right to respect for family life. Since the child belonged to a national minority, Article 30 of the Convention on the Rights of the Child on the right of minority children to live in keeping with their own culture and use their own language also applied (ibid.). In addition, it followed from Articles 5(1), 10(1) and 14(1) of the Council of Europe’s Framework Convention for the Protection of National Minorities of 1 February 1995 (see paragraph 72 below) that the State had a duty to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, allow the minority to learn their minority language and use it freely and without interference. The Supreme Court had based several decisions on the understanding that the provisions had to be interpreted in such a way that special and compelling reasons were required to deny contact. The High Court assumed that the same requirement applied to the provision in the Council of Europe’s Framework Convention.
46.  The special and compelling reasons relevant to this case were whether there was a real risk of abduction if contact sessions took place and whether there were concrete circumstances that substantiated this fear. The risk also had to be present, but no “preponderance of probability” could be required. The latter had been clarified by the Supreme Court’s judgment in the instant case (see paragraphs 32-37 above).
47.  In the High Court’s opinion, the risk of abduction was still real and present (reell og aktuell). This risk was related to the applicant’s father in particular, but also generally to other people in the community to which he and his family belonged. In this respect, the High Court agreed with the parents’ counsels that the parents had to be assessed as individuals and not on the basis of what group they belonged to. Knowledge about the mother’s environment could nevertheless have a bearing as background information. According to information provided by the police, the Roma community was statistically overrepresented in child abduction cases. This was also consistent with the impression of a psychologist, F. This overrepresentation could be due to the fact that many members of the community did not adhere to the Norwegian model for law enforcement and conflict resolution, and the possibility of keeping children away from the Norwegian authorities provided by family ties abroad.
48.  The applicant had previously found it difficult to break contact with her family and the community. When she had been given a place at R. family centre in September 2011, she had moved back in with her parents a few weeks later (see paragraph 6 above). On 1 November of the same year, she had been placed in the same institution again, but had moved back in with her family again in February 2012, despite the fact that her father had previously been violent to her (see paragraphs 6 and 8 above).
49.  One of the witnesses – A.N., the teacher from the municipal Roma Initiative (see paragraph 31 above) – had given a positive assessment of the applicant’s recent development. She was now described as resourceful and eager to learn, she had her own flat, and she had recently had her second child. According to the witness, she could serve as a role model for other Roma women.
50.  The High Court did not disagree that there were positive elements in the applicant’s development, but there was also information to indicate that the development had not been as stable as the applicant and A.N. claimed. In May 2013 the applicant had been evicted from her flat after several complaints from neighbours of domestic disputes. She was in receipt of social security benefits because she had no other income with which to support herself and her second child, B. It had also been reported that her work training and school attendance had been somewhat unstable. In the summer of 2013 the police had been called because of an argument between the applicant and her father. Shortly after B’s birth in October 2014 (see paragraph 38 above) social services had raised concerns because the applicant had been at risk of losing her home for being behind on her rent. B’s father had previous convictions for drug crime, among other things, and, according to the applicant, he had been violent to her during her pregnancy. Considering the circumstances, the High Court considered it natural to assume that the applicant might feel the need for her family’s help and protection.
51.  If the applicant were to come under her father’s influence again, it was unlikely that she would cooperate with the Child Welfare Service to prevent A from being abducted in connection with a contact session. During the investigation of her father in connection with the stabbing (see paragraph 7 above), she had stated that her father wanted to take over the care of A. The applicant had been told that her father planned to take her to another country, kill her and take her child. She had then asked for a domestic abuse alarm device.
52.  It was the High Court’s opinion that, if the applicant’s father wanted to take over the care of A, there was little doubt that he would threaten or persuade the applicant to use contact sessions for these purposes if he considered it expedient. He had previously displayed controlling and threatening behaviour in relation to his daughter. He had taken her out of school when she was eight years old. She had been physically abused by him and he had been against her moving out. The High Court’s judgment of 11 October 2013, in the criminal case against him, showed that he did not hesitate to carry out aggravated acts of violence when he thought the family’s interests were being threatened. According to the judgment, he had visited a neighbouring married couple who had allegedly been involved in the applicant’s moving out of her parents’ flat into the family centre (see paragraph 6 above). The father’s message had been that the couple was not to interfere in what was an internal family matter. The confrontation had ended with him stabbing the couple and inflicting life-threatening injuries on them both (see paragraph 7 above). He had been sentenced to four and a half years’ imprisonment for this offence (see paragraph 35 above). His criminal record also contained many other serious offences (see, inter alia, paragraph 27 above).
53.  After a contact session on 24 September 2012, the emergency foster mother had noticed a car following her (see paragraph 12 above). She had stated that she had decided not to drive straight home, and instead had driven around for a while until her pursuer had lost her by a set of traffic lights. The car had been driven by a young man, and had later been found to be registered to the applicant’s maternal grandfather. The episode had been reported to the police, but had not been investigated further. However, the fact that the emergency foster mother had been followed after a contact session by a car belonging to a member of the applicant’s family could not be a coincidence. In the court’s opinion, this episode confirmed the risk of abduction, although nothing more specific could be said about it.
54.  The fact that there had been no subsequent episodes to indicate that anyone was trying to locate the child or plan to abduct her did not, in the High Court’s opinion, reduce the risk of abduction to any significant extent. It could just as well be due to a lack of opportunity as a change in attitude. The applicant’s father had been serving a prison sentence during this entire period, and the foster parents’ identity and address were not known to the applicant’s family.
55.  The High Court considered that there would also be a real and present (reell og aktuell) danger of abduction in relation to Y if he were to have contact sessions. It was unlikely that he himself would abduct the child, but he might be pressured or tricked into aiding an abduction, for example by being threatened or tricked into disclosing information about A that could help to identify the foster home and foster parents. Y had previously stated that he had received such threats. He had told the police that the applicant’s cousin and younger brother had threatened to kill him, and that this had allegedly taken place on 15 December 2010. His lawyer had written in a letter to the Child Welfare Service dated 8 November 2011 that Y had repeatedly received death threats from the applicant’s father, brother and cousin when he had asked for a paternity test. In the summer of 2012 Y had told the Child Welfare Service that he had reported the applicant’s family to the police twice. One of the official complaints concerned the applicant’s brother and cousin, who he had reported for threatening to shoot him. The second concerned threats from the applicant’s father and uncle. The complaints had been withdrawn because the parties had reached an agreement. He had raised concerns before the Board that the child might be kidnapped. The High Court did not attach decisive weight to the fact that Y, according to his testimony, no longer had any contact with the applicant or her family, and that he no longer shared the Child Welfare Service’s concerns about an abduction.
56.  An abduction would clearly be harmful to A, who would in such a case be torn away from the care of her foster parents. A psychologist, F., had testified before the City Court that the child showed signs of having suffered neglect at an early age. She was still a vulnerable child with attachment problems. She needed a calm life, extra security and therapy. She would probably be subjected to more neglect if she were abducted.
57.  Other than the general assumption that it was a good thing for a child to get to know its culture and background, there was little to indicate that contact sessions would be beneficial if they were to take place. Contact would be quite limited and the possibility for the child to get to know her background and Roma culture would thus in any case be significantly reduced. In addition, the foster parents had stated that A had shown strong reactions to the contact sessions that had actually taken place. She was a child with special needs. According to the foster parents, the contact sessions had caused her sleep and digestive problems. If contact were to be resumed, psychologist F. feared that it could cause a significant feeling of insecurity and a reaction against the foster parents for allowing this insecurity, particularly as A had suffered significant neglect in her biological family. Both the foster parents and the Child Welfare Service still considered A to be suffering from separation anxiety, which could be exacerbated by contact. The contact sessions could also be stressful for her. The Child Welfare Service had stated that it had to consider the risk of abduction and make the contact sessions supervised and subject to police protection, regardless of the High Court’s conclusion. The High Court had to assume that this would further impair the quality of the contact sessions.
58.  The effects that contact would have on the foster parents also had to be taken into consideration. Contact with the biological parents could create insecurity that could in turn have a negative impact on the conditions in the foster home. The incident in which a car had followed the emergency foster mother could be taken into account in this context. The episode had not been investigated, and not much was known for certain about it. In any case, it had to have been an unpleasant experience, and was likely to have created a sense of fear in the foster parents.
59.  Neither the 1989 Convention on the Rights of the Child, the Convention nor the Council of Europe’s Framework Convention could lead to any other conclusion. The High Court did not interpret any of these conventions to mean that parents had an unconditional right to contact if it was contrary to the child’s best interest. Under Article 9(3) of the Convention on the Rights of the Child, the right of contact could be exercised except if it was contrary to the child’s best interests (see paragraph 69 below). The right to family life was also not unconditional, in accordance with Article 8(2) of the Convention. These exceptions had to be considered as expressions of a general principle in family law (barneretten) to consider the best interests of the child, a principle that had also to be applied when interpreting Article 30 of the Convention on the Rights of the Child (ibid.) and the relevant provisions in the Council of Europe’s Framework Convention (see paragraph 72 below). These provisions also had to allow for contact to be denied in cases, such as this one, where special and compelling reasons so indicated.
60.  The State’s obligation to protect its citizens could not lead to any other conclusion either. The risk of abduction not only applied in connection with contact sessions. It was also related to the possibility of the applicant’s family discovering the foster family’s identity and address. If that were to happen, the measures required to protect the child from abduction would be so extensive as to be unrealistic. In the High Court’s view, denial of contact was sufficient to fulfil the State’s obligation to protect A from being abducted.
62.  Both parents appealed to the Supreme Court. The applicant maintained, among other things, that security measures in connection with contact sessions were not unusual, and that contact sessions had taken place also after the “car incident” (see paragraph 12 above) without abductions having been attempted. In its response at this point, the child welfare authorities submitted, inter alia, that the fact that some contact sessions had been carried out subsequent to the County Social Welfare Board’s decision (see paragraphs 15-19 above) without abduction having been attempted, could not be decisive. It argued that these sessions, which had taken place with police assistance, had occurred at a time when A had not yet started to talk and did not understand much of the situation.
63.  On 7 July 2015 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) – composed of three Supreme Court Justices – refused leave to appeal.
64.  The Committee remarked that during the High Court proceedings, the child’s foster mother had testified by telephone without her identity being revealed to the appellants. This was a procedural error. However, it was clear to the Committee that it could not have had a bearing on the substance of the decision, and there was therefore no reason to refer the appeal on this matter for consideration by the Supreme Court.
65.  The High Court’s reasons had clearly been sufficient. As to the appellants’ attack on the substance of the High Court’s judgment, the Committee found that neither the decision’s significance beyond the scope of the current case nor any other circumstances indicated that the case should be heard by the Supreme Court. The decision to refuse leave to appeal was unanimous.