Den 28. oktober 2010 falt det en ny dom i Strasburg. Norge ble frikjent for brudd på krenkelse av artikkel 8 i saken i en sak om tvangsadopsjon.
Dommen er tydeligvis ikke blitt oversatt til norsk ennå, for jeg fant den ikke på http://www.lovdata.no
. Det skyldes trolig at dommen ennå ikke er endelig. Den kan kopieres til norsk ved hjelp av http://www.translate.google.com
Kort fortalt, går dommen ut på at det ikke forelå krenkelse av retten til privat- og familieliv da en gutt i 10-års alderen ble tvangsadoptert. Han hadde vært i fosterhjem siden han var under ett år gammel på grunn av morens angivelige avhengighet av narkotika. Faren har tilbragt flere år i fengsel. Moren er pr idag på metadon og ville av den grunn ikke gi sin tillatelse til at sønnen skulle bli adoptert av fosterforeldrene. Menneskerettighetsdomstolen la avgjørende vekt på guttens behov for trygghet. Han har gitt uttrykk for at han ønsker å være hos fosterforeldrene og la dem ta alle avgjørelser med hensyn til ham selv. Moren selv bestred ikke selve plasseringen, men besteforeldrene har i flere år forsøkt å få gutten tilbakeført slik at han kunne vokse opp sammen med sin halv-bror. EMD vektla den latente konflikten vedrørende selve plasseringen og mente det var best at det ble satt endelig punkum. Dette for å beskytte barnet.
Moren var representert av , som har avsluttet sin advokatpraksis etter å ha rettet ramsalt kritikk mot "barnevernet".
Her er den engelske teksten under :Authorisation of Adoption of Applicant’s Son was in the Child’s Best Interests
The applicant, Lise Aune, is a Norwegian national who was born in 1976 and lives in Stjørdal (Norway).
Her son A, born in February 1998, was first taken into compulsory foster care in August 1998 as an emergency measure, then as a permanent measure in December 1998. The authorities, aware that A’s parents had a history of drug abuse, suspected that he had been ill-treated. Notably in July 1998 A had been taken unconscious to hospital and, placed in intensive care, was treated for a brain haemorrhage.
On 25 April 2005 the local social authorities board deprived Ms Aune of her parental responsibilities with respect to A and authorised his adoption by his foster parents. That decision was ultimately upheld on appeal by the Supreme Court on 20 April 2007.
Notably, the Supreme Court held that the conditions required under section 4-20(3)(c) of the Child Welfare Act 1992 for deprivation of parental responsibilities had been fulfilled: namely, the foster parents had shown that they were fit to raise A as their own child, A was attached to his foster parents and it had been found by a court appointed expert that his biological mother – despite positive developments in her situation – was unable to provide him with proper care. Furthermore, it found that A, although well adjusted in his new family, remained vulnerable, and needed reassurance that he would stay with his foster parents. Indeed, his need for absolute emotional security was likely to increase as he grew up as he became aware of the fact that both his mother and father had been heavy drug abusers and that he had been exposed to serious ill- treatment. Nor could the Court ignore that the biological family, particularly Ms Aune’s father and his partner, had protested about A’s placement as they had fostered the
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the Convention, judgments delivered by a Committee are final.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: http://www.coe.int/t/dghl/monitoring/execution
In today’s Chamber judgment in the case Aune v. Norway (application no 52502/07),
which is not final1, the European Court of Human Rights held, unanimously, that there
no violation of Article 8 (right to respect for private and family life) of the European
Convention on Human Rights.
The case concerned Ms Aune’s complaint about the Norwegian courts depriving her of
parental responsibilities and authorising her son’s adoption by his foster parents.
applicant’s other son, A’s half-brother, and considered that the two boys should be together. There was a possibility that that conflict would continue if he was not adopted. It was also emphasised that A’s foster parents had facilitated contact with the biological family far beyond their entitlement, both as regards the circle of people concerned (which included A’s half-brother and biological grandparents) and the extent of the contact. Indeed, there was no doubt that that openness to permitting contact would continue.
A, who is now 12, has been in foster care practically all his life, having lived with the applicant only for the first six months of his life. During the five years which followed those first six months, they saw one another on six of the 15 opportunities offered. For approximately a year contact was interrupted because of a relapse in Ms Aune’s drug abuse. In the autumn of 2003 contact resumed and in 2004 it became regular. They met once in 2005, and then twice in 2006, 2007 (before and after the Supreme Court’s judgment of 20 April 2007), 2008 and 2009. This included overnight visits to A’s home and the applicant’s home, which took place several times in the presence of his half- brother and the applicant’s mother.
Ms Aune has spent periods in detoxification centres since 2000. Since taking part in a rehabilitation scheme (with methadone treatment) in the autumn of 2005, she has been drug-free. She has set up a renovation business with her current partner, obtained a driving licence and planned to take up studies.
Complaints, procedure and composition of the Court
Relying in particular on Article 8 (right to respect for private and family life) of the Convention, Ms Aune complained about the decision by the Norwegian Supreme Court, which deprived her of her parental responsibilities in respect of her son and authorised his adoption.
The application was lodged with the European Court of Human Rights on 26 October 2007.
Judgment was given by a Chamber of seven, composed as follows:
Christos Rozakis (Greece), President, Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway),
Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), Judges,
and also Søren Nielsen, Section Registrar. Decision of the Court
The Court noted that the interference with Ms Aune’s private and family life had had a legal basis, namely section 4-20 of the Child Welfare Act 1992, and that that interference had pursued the legitimate aim of protecting the best interests of her son.
For formal reasons, the Court had no jurisdiction under the Convention to examine the justification for the compulsory public care measures, which in any case continued to be permanent. The only question that the Court could examine was whether it had been
necessary to replace the foster care arrangement with a more far-reaching type of measure, namely deprivation of parental responsibilities and authorisation of adoption, with the consequence that the applicant’s legal ties with A would be broken.
Bearing in mind that autorisation of adoption against the will of the parents should be granted only in exceptional circumstances, the Court was satisfied that such circumstances did exist in the applicant’s case to justify those more far reaching measures.
The applicant had not questioned the social authority and national court findings concerning the suitability of her son’s foster parents or his attachment to them. Furthermore, nothing had come to light in the proceedings before this Court which would make it differ from the Supreme Court’s conclusion that the applicant was unable to provide proper care for her son.
A had no real attachment to his biological parents and the social ties between the applicant and A have been very limited. Indeed, A’s particular need for security – which would no doubt increase with time – had been significantly challenged by Ms Aune’s wish for A to live with Ms Aune’s father and by the conflict around A’s placement in foster care. The applicant had stated clearly before this Court that there was no risk that the earlier conflicts would resume as she would not seek to have A returned to live with her and that she considered it was in his best interest to grow up with his foster parents. However, the Court considered that, from the material submitted to it and the pleadings of the applicant’s lawyer, there was still a latent conflict which could challenge A’s particular vulnerability and need for security. Adoption would counter such an eventuality.
Moreover, from what the Court understood, the disputed measures corresponded to A’s wishes.
As to the doubt raised by the applicant about whether the foster parents would continue to be open to contact (in the event of adoption it no longer being the applicant’s legal right to have such contact), the Court observed that, after the Supreme Court judgment, the number of visits remained the same, which clearly confirmed that the national courts had been correct in their asssement of the foster parents’ good will. The disputed measures had not in fact prevented the applicant from continuing to have a personal relationship with A and had not “cut him off from his roots”.
The Court was therefore satisfied that the decision to deprive the applicant of parental responsibilities and to authorise the adoption had been supported by relevant and sufficient reasons and had been proportionate to the legitimate aim of protecting A’s best interests. Accordingly, there had been no violation of Article 8.
The judgment is available only in English.
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