Child welfare: Adoption and the application of Article 8 of the ECHR

Supreme Court order 27 March 2020, HR-2020-661-S, (case no. 00-0000001SIV-HRET), appeal against X Court of Appeal's decision 12 August 2019

A (Counsel Halvard Helle), B (Counsel Paal Berg Helland) v. Y municipality (Counsel Mette Yvonne Larsen), (Assisting counsel Bendik Falch-Koslung),
KS (third-party intervener), (Counsel Frode Lauareid)

Participating in accordance with section 30-13 of the Dispute Act: The State represented by the Ministry of Justice and Public Security (The Office of the Attorney General represented by Marius Emberland), (Assisting counsel Henriette Lund Busch)

Justices: Øie, Matningsdal, Møse, Matheson, Falkanger, Normann, Bull, Kallerud, Ringnes, Bergh, Østensen Berglund

The Court of Appeal had refused to hear appeals against the District Court's judgment in a case involving decisions under the Child Welfare Act, see 36-10 subsection 3 of the Dispute Act. The District Court had upheld the County Social Welfare Board's administrative decision on removal of parental authority for a child born in 2016, who was in foster care, and consented to the foster parents' adopting her. The main question was whether the Court of Appeal should have agreed to hear the parents' appeals against the District Court's judgment, as it would entail a violation of Article 8 of the European Convention on Human Rights if the judgment became final and binding. The case was heard by a grand chamber of the Supreme Court together with two other child welfare cases (HR-2020-662-S and HR-2020-663-S). With regard to the procedure, the Supreme Court took as a starting point that the legal provisions on adoption must be applied within the framework of the case-law of the European Court of Human Rights. This implies that administrative decisions under the Child Welfare Act must be based on an adequate and up-to-date information, a fair and broad balancing of interests and satisfactory reasoning. With regard to these requirements, the Supreme Court found that the District Court's majority's decision-making process and reasoning were not adequate. The Supreme Court mentioned in particular the failure to consider the positive development in the mother's situation and to strike a fair balance between the long-term value of contact between the child and the mother and the necessity of adoption at this stage. Thus, the District Court's judgment or reasoning was seriously flawed, see section 36-10 subsection 3 (c) of the Dispute Act. The Court of Appeal's decision was set aside.

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