Child welfare cases in a grand chamber of the Supreme Court
On Friday 27 March 2020, the Supreme Court of Norway decided three cases concerning child welfare law, all of which were heard consecutively by a grand chamber sitting with eleven justices. The cases concern possible violation of the right to family life in Article 8 of the European Convention on Human Rights (ECHR), particularly in light of the Grand Chamber judgment from the European Court of Human Rights (ECtHR) in Strand-Lobben and Others v. Norway and subsequent ECtHR case law.
All three rulings are unanimous.
In its rulings, the Supreme Court has emphasised the paramount importance of the best interests of the child in child welfare matters. As a starting point, it is considered best for a child to live with his or her biological parents. However, this is not always the case. Where the interests of the child come into conflict with those of the parents, the authorities must strike a fair balance between them. In doing so, due weight must be given to what is ultimately best for the child.
Chiefly in HR-2020-661-S, the Supreme Court provides an extensive account of requirements under Article 8 of the ECHR, the Norwegian Child Welfare Act and Norwegian procedural rules that must be met in child welfare cases. The Supreme Court found that there is no conflict between the case law of the European Court of Human Rights and the general substantive and procedural principles applicable in cases involving adoption, care orders and contact rights under chapter 4 of the Child Welfare Act. Thus, there was no basis for setting aside the provisions of the Child Welfare Act or for interpreting them restrictively.
However, the Norwegian legal provisions must be applied within the framework of the Court of Human Rights' case law. The Supreme Court stressed that the overall goal following a care order is that the child and the parents may be reunited. The State has a positive obligation to strive to maintain the relationship between the child and the parents and to facilitate family reunification. Yet, the goal of reunification may be abandoned if the biological parents are particularly unfit, and the parents cannot request measures that may harm the child's health and development. The same applies when a considerable amount of time has passed since the care order was issued, and the child's need of stability is considered to outweigh the importance of reunification.
Furthermore, administrative decisions under the Child Welfare Act must be based on adequate and up-to-date information and a fair and broad balancing of interests and satisfactory reasoning. The requirements laid down depend on the circumstances of the individual case and the type of measures one is dealing with.
HR-2020-661-S concerned an appeal against the Court of Appeal's decision not to hear the parents' appeals against the District Court's judgment regarding removal of parental authority and adoption. The Court of Appeal's decision was set aside. Read more
HR-2020-662-S concerned an appeal against the Court of Appeal's judgment regarding a care order and contact rights. The contact between the parents and the child was increased from four to eight sessions per year. Otherwise, the appeal was dismissed. Read more
HR-2020-663-S concerned an appeal against the Court of Appeal's decisions not to hear the parents' appeals against the District Court's judgment regarding a care order and contact rights. The appeals were dismissed. Read more
The full-text rulings will be translated and published.