No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1959 and lives in Liepāja.

On 1 November 2007, when the applicant was in the courtyard of her apartment building, two officers from the municipal police force (J.M. and J.L.) pulled up in a car. After having a conversation with the applicant they twisted her arms behind her back and forced her to approach their car. She was eventually let go, but later she started feeling ill and had to call an ambulance. The applicant submits that she still felt ill effects on her health more than a year after the events of 1 November 2007.

On 2 November 2007 the applicant wrote to the Liepāja City Public Prosecutor’s Office and requested that criminal proceedings be instituted against the officers responsible. The applicant stated that she had told the officers that they could go and talk in her apartment, after which one of them had grabbed her right upper arm and twisted her arm behind her back, she avoided the grip owing to pain, while the police officer shouted that he would teach her a lesson about resisting the police. At that moment the second policeman had grabbed and twisted the applicant’s left arm. The policemen had then tried to push the applicant into the back of their car. They eventually let her go after her neighbours intervened. Immediately after the policemen had left, the applicant had started experiencing health problems, namely, sharp pain in her chest, high blood pressure, pain in her back, neck and head, and a loss of feeling in her hands. She had called an ambulance and had been given an injection. The following day a general practitioner had issued the applicant with a sick leave certificate until 12 November 2007 and had prescribed painkillers and sedatives. The applicant asked the prosecutor to order an appointment with a forensic medical expert, pointing out that there were haematomas on her upper arms.

It appears that the prosecutor instituted criminal proceedings the same day. The case was forwarded to the State police for investigation.

On 4 November 2007 the applicant submitted a complaint to the head of the Liepāja City Municipal Police. In substance she repeated her account of the events of 1 November. In the concluding part of her complaint, the applicant requested that the actions of the two officers of the municipal police be investigated. She also pointed out that as a result of their actions she had suffered mental anguish and material and psychological harm.

On 21 January 2008 an inspector from the Liepāja City and District Police Department adopted a decision to terminate the criminal proceedings which had been initiated by the prosecutor. The decision was adopted on the basis of statements made by the applicant (see paragraph 11 below), by J.M. and J.L. (see paragraph 12 below) and by three other witnesses (see paragraph 14 below) as well as the forensic medical expert’s report (see paragraph 13 below) and a decision of the Liepāja City Municipal Police to take disciplinary measures in respect of J.M. and J.L. for having failed to properly document the administrative infraction committed by the applicant (see paragraph 15 below).

The applicant had testified that she had been washing her car in the courtyard of her neighbour’s house and that, after she had parked the car near her house, two policemen had pulled up. They had asked the applicant to approach their car, which she had not done because she had needed to return to her apartment urgently. The policemen had then warned her that she was disobeying police orders and had subsequently twisted her arms behind her back; she had tried to free herself from the grip.

The policemen J.M. and J.L. stated that they had been called out about an administrative violation – a car being washed in a public courtyard. Upon arrival at the scene they had noticed the applicant standing next to a car holding a bucket. J.L. had then invited the applicant to approach the police car so that a record of an administrative violation could be drawn up, which the applicant had refused to do and had started to walk away. The policemen had then taken her by the arms and started directing her towards the police car. Since the applicant had not demonstrated resistance, J.L. and J.M. had released their hold and subsequently taken statements from the applicant’s neighbours for the purpose of initiating administrative proceedings against her.

The forensic medical expert who had examined the applicant noted that each of her upper arms bore two haematomas. It was concluded that the haematomas could have appeared in the circumstances described by the applicant. The haematomas were described as minor injuries which would not have adverse medical effects for more than six days (“kas neizraisa īslaicīgus veselības traucējumus uz laiku virs 6 dienām”). The fact that the applicant had actually sought medical treatment for longer than six days was considered irrelevant, since the expert considered that the nature of her injuries did not warrant such extended treatment.

The three eyewitnesses to the events of 1 November all agreed that the applicant had ignored the requests of the police and that the policemen had therefore tried to detain her. The applicant had resisted and the officers had twisted her arms behind her back. After the applicant had stopped resisting, she had been released.

The findings of the internal investigation of the Liepāja City Municipal Police of 16 November 2007 disclosed that the policemen J.L. and J.M. had been penalised for their lack of diligence in drawing up a record of the administrative violation allegedly committed by the applicant (failure to obey the lawful order of a police officer). No mention appears to have been made of the alleged use of force against the applicant.

Taking into account the information set out above, the inspector concluded that the applicant had intentionally disobeyed the lawful order of a police officer (thus committing an administrative offence under Latvian legislation). As a result, J.L. and J.M. had used special restraint techniques (“pielietoja speciālos cīņas paņēmienus”), namely holding the applicant’s arms behind her back in order to detain her. The applicant had shown resistance while she was being directed towards the police car. Once she had stopped resisting, she had been released and J.L. had informed his supervisor of the events. In consultation with J.L.’s supervisor it had been decided not to bring the applicant to the police station but instead to initiate administrative proceedings against her. Administrative proceedings were initiated on 13 November 2007 and discontinued on 18 February 2008 because procedural time-limits had not been observed by the police.

The decision stated that, since the applicant had refused to cooperate with the police and had started to walk away, the policemen had had legitimate grounds for detaining her, as long as they observed the requirements set out in the Law on Police (see paragraphs 24 and 25 below). Nevertheless, J.L. and J.M. had failed to fulfil the requirements of section 13 in fine of the Law, which prohibits the use of special restraint techniques against women, other than in exceptional circumstances. As a result, the applicant had sustained minor injuries. Infliction of minor injuries is an offence proscribed by section 130 of the Criminal Law. Under section 7(3) of the Criminal Law, infliction of minor injuries is one of the crimes that are prosecuted privately by the victim.

The inspector further noted that J.L. and J.M. had not exceeded their official authority in contravention of section 317 of the Criminal Law. It was established that even though the policemen had violated the requirements of section 13 in fine of the Law on Police, it had to be taken into account that the applicant herself had disobeyed and resisted the police. Thus, taking into account the “nature, circumstances and consequences of the officers’ actions”, the inspector concluded that, pursuant to the explanations contained in section 23(1) of the Law on the Coming into Force and Application of the Criminal Law, there had been no substantial harm done to state authority, administrative order or the rights and interests of any person. Accordingly the inspector held that the municipal police had to decide whether J.L. and J.M. should be held disciplinarily liable for the violation of section 13 in fine of the Law on Police. In conclusion, it was decided to terminate the criminal proceedings for absence of corpus delicti.

The decision was conveyed to the applicant in a letter of 24 January 2008. The letter stated:

“... You may appeal against the adopted decision to the Liepāja City Public Prosecutor’s Office within 10 days of receiving the decision. Please also note that section 7(3) of the Criminal Procedure Law provides that the offence mentioned in section 130 of the Criminal Law (intentional infliction of a minor injury) is prosecuted privately. In the course of private prosecution criminal proceedings, the prosecutorial functions are carried out by the victim, who must lodge an application with a court. ...”

The applicant did not appeal against the decision of 21 January 2008. She did, however, submit a complaint to the Liepāja Court stating her intention to initiate a private prosecution under sections 130 and 156 of the Criminal Law. The complaint was dated 29 April 2008 and was marked as having been received at the court on 30 April. The applicant indicated that J.M. and J.L. had used special restraint techniques against her in contravention of the Law on Police, as a result of which she had been injured, which had been confirmed by a forensic medical expert. She further pointed out that she had incurred pecuniary and non-pecuniary losses. Accordingly, she claimed damages.

On 7 May 2008 a single judge of the Liepāja Court issued a decision concerning the applicant’s complaint. The judge held that the limitation period of six months had expired and criminal proceedings could therefore not be instituted. He noted that he had received the applicant’s complaint on 6 May 2008, that is to say after the expiry of the statutory time-limit. Furthermore, the decision noted that the applicant had failed to specify which paragraph of section 130 formed the legal basis of her complaint, and had not substantiated in any way her claim under section 156.

The applicant appealed. On 2 June 2008 a single judge of the Kurzeme Regional Court dismissed her appeal. The decision noted that the last day on which J.L. and J.M. could have been charged by the way of private prosecution had been 1 May 2008. Since the applicant had lodged her complaint on 30 April 2008, it would have been physically impossible to initiate proceedings on 1 May 2008 because of the large number of procedural steps that would have had to be taken (for example, a copy of the complaint would have had to be sent to the accused, the accused would have had to be informed about their rights, the applicant would have had to be informed about the time and the place of the hearing, and the accused and other persons would have had to be called to the hearing). The judge further noted that the police’s decision not to initiate criminal proceedings was made on 21 January 2008, yet the applicant had waited for almost three months before lodging a request to initiate private prosecution proceedings. The decision had also explained that a refusal to initiate criminal proceedings did not preclude the applicant from lodging a civil claim in order to obtain compensation for the harm allegedly done. Finally it was remarked that the judge of the first-instance court had correctly held that the applicant had failed to specify which of the three paragraphs of section 130 of the Criminal Law formed the legal basis of her complaint. Under the Criminal Procedure Law, the judge of the first-instance court had a duty to establish whether the legal categorisation of the alleged crime was correct, since the accused had a right to know the exact content of the accusations against them. The decision of the Kurzeme Regional Court was final and not subject to further appeal.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in 1984 and lives in Sacile.

The facts of the case as submitted by the parties may be summarised as follows.

The applicant is the mother of three children, R., P. and J., who were born in 2005, 2006 and 2008 respectively.

At the material time the applicant was living with the children’s father, was suffering from depression and was undergoing a pharmacological treatment.

In August 2009 the social services informed the Rome Youth Court (hereafter “the court”) that the children had been hospitalised several times following the accidental ingestion of medication, and emergency proceedings were commenced before the court. By decision of 11 August 2009 the court ordered the children’s removal from their family and their placement in an institution, and instructed the social services to draw up a support project for the children.

On 20 October 2009 the applicant and the children’s father were heard by the court. They admitted that owing to the applicant’s state of health and the side-effects of the medication she was taking to treat her depression they had had difficulties looking after the children. They affirmed, however, that they could take proper care of the children with the help of the social services and the children’s grandfather. The applicant pointed out that she was undergoing treatment and that the side-effects initially caused by the medication had ceased. Both parents requested that the social services put in place a support project so that the children could return home.

On 3 December 2009 the psychiatrist submitted her report on the applicant. The report stated that the latter was undergoing pharmacological treatment, that she was willing to have psychotherapy and to accept the assistance of the social services and that she had a very strong emotional bond with her children.

On the same day the Integrated Working Group on Adoption (the “GIL”) submitted its report, pointing out that despite the family difficulties, the parents had reacted positively, had taken part in the meetings and were prepared to accept the support of the social services. Consequently, the GIL proposed returning the children to their parents and introducing a family support project.

By decision of 19 January 2010 the court, having regard to the expert reports and the fact that the paternal grandfather was available to help his son and the applicant to look after their children, ordered the children’s return to their parents.

On 24 March 2010, however, the parents’ reunion with their children was interrupted and the children were once again removed from the family home on the grounds that the applicant had been hospitalised owing to an aggravation of her illness, that the father had left the family home and that the grandfather had fallen ill. The court established visiting rights for both parents as follows: for the applicant, one hour per fortnight, and for the children’s father, two hours per week.

In March 2010 the prosecutor requested the opening of a procedure for declaring the children available for adoption.

On 10 June 2010 the parents were heard by the court. The applicant submitted that she was undergoing treatment, that the children’s father was available to look after them and that they had therefore not been abandoned. The father emphasised that even if he was working he could take proper care of the children with his father’s help, and that he had recruited a home help.

In October 2010 the court ordered an expert assessment of the applicant’s and the children’s father’s capacity for exercising their parental role. On 13 January 2011 the expert submitted his report, which concluded:

- that the father displayed no psychiatric illness and that despite his fragile personality he was capable of shouldering his responsibilities;

- that the applicant suffered from a “borderline personality disorder which interfered, to a limited extent, with her ability to shoulder responsibilities linked to her role as a mother”;

- that the children were hyperactive, largely as a result of the family’s difficulties.

In his conclusions, the expert pointed out that both parents were willing to accept any intervention required to improve their relationship with their children, and he made the following proposals: extending the children’s placement in public care, introducing a programme of bringing the parents and the children together, and intensifying encounters. He also suggested that the situation of the family should be reassessed six months later.

By decision of 1 March 2011, however, the court declared the children available for adoption, and the meetings between the parents and the children were discontinued.

In its reasoning, the court stated that no reassessment of the family’s situation was necessary in the present case. It highlighted the parents’ difficulties in exercising their parental role, as indicated by the expert, and referred to the statements of the Director of the institution to the effect that the applicant had “serious mental disorders”, the father “was unable to show affection and spent his time arguing with the welfare assistants” and the parents “were incapable of providing their children with the care and treatment which they needed”. Having regard to those facts, the court declared the children available for adoption.

The applicant and the children’s father appealed against that decision and requested a stay of execution. They submitted:

– that the court had erroneously declared the children available for adoption in the absence of any “abandonment”, a precondition for such a declaration under Law No. 184 of 1983;

– that the declaration of availability for adoption should only be used in the last resort and that in the present case it was unnecessary because their family difficulties, which stemmed, in particular, from the applicant’s illness, were temporary and could be overcome with the welfare assistants’ support.

Finally, they emphasised that the court had not taken into account the January 2011 expert report ordering the establishment of a programme of support and gradual reunion of the children with their parents.

In July 2011 the court ordered that each child be placed in a different foster family.

By decision of 7 February 2012 the Rome Court of Appeal dismissed the applicant’s appeal and upheld the declaration of availability for adoption.

The Court of Appeal observed that the competent authorities had expended the requisite efforts to provide support to the parents and prepare the children’s return to their family. However, the project had failed, which showed the parents’ incapacity for exercising their parental role and belied the temporary nature of the situation. With reference to the social services’ findings, the Court of Appeal emphasised that the failure of the project had had negative consequences for the children and that the declaration was geared to protecting their interest in being fostered in a family capable of properly caring for them, which their family of origin was incapable of doing owing to the mother’s state of health and the father’s difficulties. The Court of Appeal noted that there had been some positive developments in the situation, such as the mother’s realisation of her health problems and her determination to undergo treatment, as well as the father’s efforts to find resources in order to look after his children and the availability of the grandfather to help out. However, the Court of Appeal held that those factors were insufficient to assess the two parents’ capacities for exercising their parental responsibilities. Having regard to those factors, and with an eye to safeguarding the children’s interests, the Court of Appeal also confirmed their availability for adoption.

The applicant and the children’s father lodged an appeal on points of law. By judgment deposited in the registry on 22 January 2014, the Court of Cassation dismissed the applicant’s appeal on the grounds that:

– the Court of Appeal had correctly assessed the existence of a situation of psychological abandonment of the children and the irreversibility of the parents’ incapacity for exercising their role, having regard to the failure of the first support project put in place by the social services;

– the declaration of availability for adoption had duly taken into account the children’s interest in being fostered by a family capable of looking after them effectively.

In February 2014 the applicant requested the Rome Youth Court to cancel the declaration of the children’s availability for adoption (on the basis of section 21 of Law No. 184 of 1983). In support of her request, the applicant presented various medical documents attesting that her state of health had improved in the meantime, in order to prove that the conditions set out in section 8 of Law No. 184 of 1983 for issuing a declaration of availability for adoption has since lapsed.

By a decision of 14 May 2014 the Rome Youth Court dismissed the applicant’s request.

The outcome of the adoption procedure concerning the children is unknown.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

In 2006 the applicant moved to Norway after marrying C, an Iraqi national who had come to Norway in 1999. The couple’s first daughter, A, was born in February 2008. Their second daughter, B, was born in June 2010.

On 7 April 2009 the emergency unit at the child welfare authorities in F. municipality received a request to assist the police with an incident in which the applicant and C were having a heated argument in the presence of their child. A few days later, on 10 April, the police were called again. The applicant then said that C had hit her and tried to strangle her and A on the same day. C was arrested and placed in custody. The applicant and A were taken to a crisis centre.

The next day, on 11 April, the applicant was admitted to hospital with pain and bleeding. She then consented to A being placed in an emergency foster home while she was in hospital. The applicant asked the hospital for protection during her stay, because she was afraid that C’s family would come to the hospital to kill her.

The applicant was discharged from hospital on 12 April 2009. She withdrew her consent to the emergency placement of A and they moved into a crisis centre. The child welfare authorities made a decision on assistance measures on 14 April 2009 and informed the applicant that they would be concerned about A’s welfare if the applicant were to move back in with C. The applicant then stated that she did not wish to move back in with him. She wanted to have a domestic abuse alarm device if she moved back.

On 16 April 2009 the applicant moved back home with A. She did not want to give evidence in the criminal proceedings against C, A’s father, and refused to release her doctor from the duty of confidentiality. On 24 April 2009 C was released from custody and moved back home. A restraining order that had been imposed on him in relation to the applicant was lifted at her request.

Taking into account that C had tried to strangle the applicant and A with an electrical cord (see paragraph 6 above), the child welfare authorities gave the applicant a choice between moving into a crisis centre with A or having her forcibly taken into care. On 29 April 2009 the applicant moved back into the crisis centre in F. with A.

While at the crisis centre the applicant had a lot of contact with C by telephone. She expressed a wish to move back in with him with A, but also stated that he should not be at home at the same time as them. After she let C into the crisis centre on 6 May 2009, the centre no more wanted her to stay there. As the applicant expressed a wish to move back home to C, the child welfare authorities decided on 7 May 2009 to place A in an emergency foster home for the second time because they were of the opinion that the mother was unable to protect A from violence from her father.

In a consultation at the emergency clinic that day, the mother denied that C represented a risk to her or the child and that he had previously hurt them.

On 18 May 2009 the applicant moved into a crisis centre in O. This crisis centre was of the opinion that A should be returned to her. The child welfare authorities disagreed, and cooperation between the crisis centre and the authorities became difficult. In the end, A was returned to the applicant on 24 June 2009 and they then stayed together at the crisis centre.

On 17 July 2009 the applicant and A moved back in with C. The child welfare authorities closed the case, but reopened it after the applicant’s lawyer raised concerns (“bekymringsmelding”) and stated that mother and child still had great need of the authorities’ help. On 29 July 2009 the authorities initiated assistance measures, including parenting guidance, couple therapy, a Norwegian language course for the applicant, and aggression management therapy for C. An application was also submitted for a kindergarten place for A. After a while the kindergarten raised concerns owing to A’s high absence rate and the fact that many verbal expressions of anger were being directed at the staff by C.

On 15 October 2009 the police raised additional concerns with the child welfare authorities after they had been called out to the hospital in F. The mother had been admitted the day before with a suspected ectopic pregnancy. C had taken A to the hospital and the police had regarded his behaviour as so aggressive and threatening towards the hospital staff that they had thought it appropriate to notify the child welfare authorities. C had influenced the applicant to discharge herself from hospital against medical advice. However, she had suffered heavy bleeding and had been readmitted. C had been banned from visiting her at the hospital. He was at home with A, about whom the police were concerned, as the father was aggressive and threatening towards the applicant and their daughter.

On the following day, 16 October 2009, the child welfare emergency unit visited the family. C was very upset and angry, as he claimed that he had not consented to such a visit.

In May 2010 the applicant attended an appointment at a crisis centre in O. According to the child welfare authorities’ records, C had been “aggressive and out of control” because of this meeting.

In June 2010 the couple’s second daughter, B, was born.

On 2 September 2010 the City Court (tingrett) gave a judgment in which C was acquitted of violating Article 219 of the Penal Code on the maltreatment of family members, but convicted of some other offences. The counts in the indictment under Article 219 concerned the incidents in April 2009 (see paragraph 6 above). In the course of the criminal case, the applicant had withdrawn her previous statements concerning violence by C.

On 17 November 2010 the child welfare authorities received a call from a crisis centre in S. informing them that the applicant and her two children had arrived there after C had been violent towards them and had threatened to kill the applicant. C had been arrested, but had then been released. The applicant had withdrawn her statement about his acts of violence and was preparing to go home. Based on this and previous incidents, the authorities decided to issue an emergency care order that day to place the children in an emergency foster home at a secret address. This was A’s third emergency placement (see paragraphs 7 and 11 above). The order was approved by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker – hereinafter also “the Board”) the following day.

On the same day, 18 November 2010, the applicant went to the crisis centre in O. At a meeting held there on 23 November 2010 she stated that she never wanted to return to C. The child welfare authorities emphasised that she could not have any contact with him once the children were returned to her. Initially, the authorities’ intention was to return the children to the applicant at the crisis centre in S., where they would all stay. The specialist team in S. expressed concern about this solution, and the authorities decided that the children could not be returned until the applicant was settled in her own flat. They thought it would be unfortunate to return the children only to put them through another emergency placement if the mother moved back to C.

On 25 November 2010 a restraining order was imposed on C in relation to the applicant.

The parents appealed against the emergency care order of 17 November 2010 to the Board, which granted the appeal in part in a decision of 15 December 2010. The decision regarding the emergency placement was upheld, but the amount of contact with the children was increased and the decision not to inform the parents of the children’s whereabouts was set aside.

On 21 December 2010 the applicant moved from the crisis centre in O. to the crisis centre in S. She subsequently stayed at a crisis centre in G. from 5 January to 29 May 2011.

An application for the children to be taken into care was first submitted to the Board by F. municipality on 23 December 2010. The municipality wanted consideration of the case to be postponed so that an expert assessment could be prepared, but the parents were opposed to this. The Board considered the case at a meeting from 8 to 10 March 2011. On 18 March 2011 the Board nevertheless decided to adjourn the case in order to appoint experts to carry out an assessment of it. The appointed experts were a specialist in educational and psychological counselling, L.M., and a specialist in clinical psychology, B.S. The experts’ joint statement was submitted on 31 May 2011.

The child welfare authorities wanted the contact sessions to be supervised and engaged trained personnel from a company to do so. The supervisers started their work on 8 April 2011 and submitted a report on 3 June 2011.

C was dissatisfied with the work of the appointed experts (see paragraph 25 above), and therefore hired G.H., a specialist in child and adolescent psychology, as a private expert to observe contact sessions between the applicant and the children. G.H. submitted his report on 11 June 2011.

The care order case was considered by the Board on 14 and 15 June 2011.

The applicant stayed at the crisis centre in G. again from 14 to 30 June 2011, after which time she moved into her own flat in G.

Before the Board reached a decision, the two children were abducted from a contact session with the applicant. The incident took place on 21 June 2011 at G. Volunteer Centre (“frivillighetssentral”) in B. Two people wearing balaclavas and sunglasses forced their way in during the contact session, used an electroshock weapon on the applicant and abducted the children. The contact session was being supervised by a member of the company’s staff (see paragraph 26 above). The staff member managed to escape through the veranda door and summon help. The applicant was injured and unconscious and was taken away to hospital by air ambulance. The children were found in a flat in H. the next day. C later admitted that he had been behind the abduction and that he had been in the vicinity when it had happened.

The Board found out about the abduction before it made its decision, and it was therefore decided that there should be no contact between the children and the parents. The operative part of the Board’s decision of 24 June 2011 read as follows:

“1. F. municipality, represented by the child welfare authorities, shall take A, born ... February 2008, into care.

F. municipality, represented by the child welfare authorities, shall take B, born ... June 2010, into care.

A and B shall be placed in separate foster homes at secret addresses. A shall be placed in enhanced foster care [where foster parents have extensive support from the child welfare authorities].

No minimum level of contact between the mother and the girls is set out. If contact sessions are to take place, the child welfare authorities are authorised to supervise them.

No minimum level of contact between the father and the girls is set out. If contact sessions are to take place, the child welfare authorities are authorised to supervise them.”

The decision was brought before the City Court (tingrett). When the hearing started, on 9 November 2011, the applicant was not present. Her counsel was there and argued that the case should be postponed. After the City Court had decided not to do so, the applicant’s counsel left as he was of the opinion that he could not attend to the interests of his client. However, C informed the court that he was in touch with the applicant. She arrived later the same day at the court and stated that she had spoken to her counsel. She also argued that the case should be adjourned. When told that it had already been decided to continue the hearing, the applicant left the court.

On 21 November 2011 the City Court upheld the Board’s decision. As to the applicant and her counsel leaving the hearing, the court noted that it found it difficult to view this as anything but an attempt to force the court into postponing the case, although it did not find it clear why they wanted the case to be postponed. Based on the evidence presented to it, the City Court found it highly likely that C would attempt to abduct the children. Moreover, it was found to be the case that C was in control of the applicant and that she followed his orders. Among other things, the City Court referred to the fact that the applicant under the hearing had made herself unavailable to her counsel, but not to C. The City Court stated that the abduction risk might possibly be regarded differently when the criminal case against C had been heard by the court. At present, however, it took account of how C had declared that the abduction had been in the children’s best interests and concluded that there should be no visiting rights.

Instructed by the applicant’s lawyer on 5 December 2011, a specialist psychologist, J.W., submitted an expert report in the case on 16 December 2011.

The parents appealed to the High Court (lagmannsrett) against the City Court’s judgment.

On 8 March 2012 the applicant submitted an official complaint to the police against C in relation to rape, deprivation of liberty, and threats made in her flat. The applicant went to the crisis centre in G., but moved back to her own flat a few days later. C also contacted the applicant in G. later in March. A restraining order was imposed on him, and the applicant was moved to a secret address.

The High Court appointed the clinical psychologist B.S. as expert (see paragraph 25 above). He submitted his report on 12 August 2012. The High Court then heard the case from 25 to 27 September 2012. The parents were present together with their counsel and gave evidence. Eight witnesses were heard, including two expert witnesses. B.S., the court-appointed expert, gave testimony.

On 22 October 2012 the High Court rejected the appeal. It noted that a care order presupposed serious deficits in the applicant’s caring abilities and though the applicant, if viewed in isolation, would have sufficient capacity to take care of the children with assistance of the child welfare authorities, the question was whether the children would be sufficiently protected from C. The applicant did not want further dealings with him. C’s behaviour showed, however, that he was unwilling to respect her wish. As to contact rights, the High Court did not take a stance on whether a secure regime for visits could be established. At that time, there was in any event an obvious risk that C would again try to kidnap the children.

Leave to appeal to the Supreme Court (Høyesterett) was denied by the Supreme Court’s Committee on Leave to Appeal (Høyesteretts ankeutvalg) on 19 December 2012.

During the summer of 2013, the applicant was subject to threats from her half-brother, on paid assignment from C, in order to make her move back to Iraq. On 12 August 2013 she was granted divorce. The hearing of the criminal charges against C took place in September 2013.

On 1 October 2013 the child welfare authorities applied to the Board for an order that the applicant and C have their parental responsibility in respect of A and B removed; parental responsibility would then be transferred to the authorities. The authorities also applied for the Board’s authorisation of the foster parents’ adoption of the children. The applicant applied to the Board for an order that A and B’s placement in care be discontinued.

On 3 October 2013 the District Court convicted C of abducting the children (see paragraph 30 above) and sentenced him to one year and seven months’ imprisonment, of which six months were suspended. C appealed against the judgment.

On 29 November 2013 the Board appointed B.S., the psychologist, as its expert. He submitted a report on 31 January 2014 (see paragraph 53 below).

The case was heard on 10 and 11 February 2014. The Board sat with a chairperson who was 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 (see paragraph 114 below). The applicant was present with her legal aid counsel and gave evidence. C was in Iraq, but testified by telephone as a party to the case and was represented by his counsel. The appointed expert attended the proceedings and testified. One other witness was heard.

In its decision of 25 February 2014, the Board noted that the previous care order case had been considered as directed against the applicant, as C had accepted that she had day-to-day care and control of the children. This situation had not changed, and C now supported the applicant’s claim for revocation of the care order.

The Board first reiterated the following from the High Court’s judgment of 22 October 2012 concerning the children’s placement in care (see paragraph 38 above):

“In the High Court’s opinion, seen in isolation, the mother will be capable of providing adequate care for the children, provided that adequate assistance measures are offered. The High Court understands that this opinion is shared – although to a varying extent – by all the experts who have appeared before [it].”

There was limited updated information about the applicant’s situation at the time of the Board’s decision, but it was clear that she had been granted a divorce from C. She had also passed a Norwegian language course and established a small social network in G. Seen in isolation, her ability to provide care thus appeared to have improved somewhat since the High Court hearing.

On the other hand, the High Court had concluded that there were serious deficiencies in the applicant’s ability to provide care because of the threat that C represented to her and the children. The Board made reference to the following passages from High Court’s judgment:

“... the question at issue in this case is whether the children will be sufficiently protected against violence from their father if they are returned. It is very important to the father that the children grow up in accordance with their Kurdish background, and he is clearly willing to go to great lengths to achieve this, possibly also by using violent methods. He has stated that the purpose of the abduction was to take them to Iraq. ...

After the presentation of the evidence, the High Court is in no doubt that the father is violent and represents a threat to the mother. ...

Based on the facts described above, the High Court finds that there is a strong preponderance of likelihood of the father having committed violent acts against the mother, and that it is probable that he, or someone acting on his behalf, will be violent to the mother again. Among other things, [the court] points out that the expert witness J.W., who has assessed the violence described in the case in a cultural context, believes that the mother’s ‘life probably was [or] is in serious danger’.

The mother and father are divorced, and the mother wants no further contact with the father. His behaviour as recently as in March this year in G. shows that he is not willing to respect the mother’s wish to break off contact [with him]. In the High Court’s opinion, there can be little doubt that the father’s further contact with the mother will be harmful to the children and constitute a significant deficiency in relation to the children’s safety if the care order is revoked.”

However, the High Court had stated in its judgment that the question of contact for the applicant could be seen in a different light if C were expelled from the country. This was because the security concerns described in the judgment would then not apply to the same extent.

The expert appointed by the Board, B.S., had not carried out a new assessment of the applicant’s ability to provide care in his report of 31 January 2014 (see paragraph 43 above). In a statement dated 11 February 2014 from the Child Welfare Expert’s Commission (barnesakkyndig kommisjon), one of the two commission members had remarked that it would have been preferable for the mother to have been given an opportunity to comment on such a serious matter. It was also stated that it was expected that this would form part of the Board’s consideration of the case.

In his testimony before the Board, psychologist B.S. upheld his assessment given in the report of 31 January 2014 that, seen in isolation, the applicant’s ability to provide care was sufficient for her to have care and control of the children with assistance measures in place. The Board agreed, and also made reference to the High Court’s assessment of this issue (see paragraphs 38 and 46 above). Nothing in the case indicated that the applicant’s ability to provide care had deteriorated since the High Court’s hearing in 2012. If anything, it had to be deemed to have slightly improved. The applicant had testified before the Board and the Board considered that the issue had been adequately clarified.

The children’s father had been in Iraq for months, and had stated in his testimony as a party to the case that he was building a house and was engaged to be married to a new woman. He had no plans to return to Norway, and he planned to settle permanently in Iraq. The father had last been in Norway during the criminal proceedings against him in September 2013. His counsel stated that the conviction had not been formally served on C, but he had nonetheless appealed against it, and he added that he expected C to sign the letter accompanying the appeal soon, so that the High Court could consider it.

In his expert report of 31 January 2014 to the Board, B.S. had given the following assessment of the situation:

“According to information received, the father is currently in Iraq. If he returns to [Norway], he must expect to be arrested to serve the prison term he was sentenced to for the abduction. [I do] not know if he would then be expelled from the country. The present situation resembles the situation that the High Court deemed to be associated with less risk for the children [(see paragraph 49 above)].

[I do] not necessarily agree with the High Court’s assessment. This is a complex issue, and to the extent that the question of risk can be clarified with a sufficient degree of certainty, that would require extensive investigation which would also involve the parents’ relatives and other networks in countries other than Norway. That is far beyond the remit of the expert examination. Nevertheless, it is possible to make some general reflections based partly on knowledge about what is common in the parents’ culture, and partly on information provided by the parents themselves.

The children belong to the father’s family. Not just to the father, but to his family. The mother has main responsibility for bringing up the children as long as they are regarded as children. It is therefore unproblematic for the father to accept that the children be returned to the mother to grow up with her. Once they are grown up, however, they will still belong to their father’s family. They will be considered ‘adult’ long before the Norwegian age of majority; age of sexual maturity is a more relevant criterion than chronological age.

For a family that is concerned with the honour code, the actions of an adult daughter have a bearing on the whole family’s honour. If she leads a life in conflict with the family’s norms, particularly as regards her sexual life, this affects the whole family, which will lose all prestige in the eyes of the surrounding world. In extreme cases, the family may feel forced to track down the woman and kill her to restore the family’s honour and prestige. This does not necessarily diminish with time and distance. Nor does this only apply in conservative religious families; it is more a question of culture than of religion. There are several examples of relatives tracking down women living in Western countries and committing so-called honour killings despite the family having lived in the West for many years and appearing to be modern and well-integrated.

If such mechanisms are at play in the father’s family, the father’s whereabouts are less important in relation to the risk. Nor will the risk diminish with time. The opposite may even be true. A and B are young children, and children are not in a position to disgrace their family. As they become older, keeping them under control may become much more important for the family than it is today. Preferably, they should be ‘saved’ before they have the opportunity to do anything wrong. The family could achieve this by organising another abduction and taking them to Iraq. If the children were nevertheless to bring dishonour on the family, or if the family assumed that to be the case because they lived outside the family’s control, there is a possibility that A and B would risk being hunted for years and maybe even killed if their family found them.

On the basis of the above, [I am] of the opinion that the risk associated with disclosing A and B’s whereabouts has not decreased, even though the father is abroad. This means that returning them to their mother would still entail a serious threat to their care situation, even if the mother, seen in isolation, may be able to provide proper care. Based on what is known about the mother from before, [I am] highly uncertain whether the mother would keep her and her children’s identities secret from the father’s family in the event that she was given a new identity and a secret address. In order for such an arrangement to be safe, the mother would probably have to break off all contact with her own family as well. It is neither realistic nor ethically justifiable to make this a condition.”

In the Child Welfare Expert’s Commission’s statement of 11 February 2014 (see paragraph 50 above), one of the two commission members had pointed out that the expert’s conclusions as quoted above were not based on concrete knowledge about the situation in this family. The member had also stated that, when so much time was devoted to considerations on the family and situation in Iraq, this could easily give a wrong impression, even if doubts were also included in the report. This could easily lead to incorrect or false premises being established for the assessment of the risk associated with the mother’s contact with the children in a situation where their biological father was not in the country. The other commission member had had no comments on the expert’s report.

The Board agreed that assessing the risk with a sufficient degree of certainty would require extensive investigation. This had not been done in this case, and the Board had no option but to base its assessment on the known facts. Based on the presentation of evidence, the Board agreed with the expert that his concerns regarding the risk had not been assuaged during the hearing before the Board.

Firstly, the police still considered the children to be at high risk of being kidnapped. The police had not testified about this before the Board, but the Board had no reason to doubt the police’s assessment. The Board had been informed that the foster families had to clear all visits outside the municipality with the police. At a time when the police’s use of resources was under continuous evaluation, the Board saw no reason to believe that the level of protection was seen as excessive.

Secondly, C had tracked down and raped the applicant in March 2012, and had also approached her later that month. In the summer of 2013 the applicant had received death threats from her half-brother, among other things, and she herself had stated that the threats had been made because C had paid her half-brother to do this. The applicant had informed the Board that she had been kept under surveillance for a prolonged period by her half-brother, who had come to Norway under an alias. She had reported this to the police, and the police had allegedly told her that her brother might possibly be expelled from Norway. However, she did not know his whereabouts. Since C had on two occasions and until quite recently used accomplices to put the applicant and/or the children in great danger, the Board considered C’s actual location of less importance. There was also good reason to question whether he would stay away from Norway, given that he had appealed against the District Court’s judgment in the criminal case (see paragraph 42 above). An appeal on the question of his guilt would be dismissed if he did not appear.

Thirdly, C’s mother in Iraq had stated that she would come to Norway if the children were not returned to the applicant. She had also said that her husband, A and B’s paternal grandfather, was very ill and had been hospitalised as a result of the stress of the children being taken away from the family. These statements showed that the stress on the family as a result of the case did not seem to have diminished, but in fact still seemed to have a strong presence. The paternal grandmother’s statement gave the impression that the children’s fate was the family’s responsibility, and not a matter that just concerned C.

Fourthly, the Board considered it unlikely (“lite sannsynlig”) that the applicant would be able to protect the children from their father if they were returned to her. When the children were younger, the applicant had repeatedly demonstrated that she was unable to protect herself and the children from C. She had moved back to C several times, despite having reported him to the police for violence against both herself and the children. He could not be prosecuted for these offences because the applicant either withdrew her previous statements or refused to make statements to the police. Since the abduction in 2011, C had contacted the applicant several times, and he had also been violent again. Despite knowing that C was behind the death threats and surveillance of her in the summer of 2013, she now believed that he did not represent a risk. It was difficult to say whether this was what the applicant actually believed or whether it had to do with her wish for the children to be returned to her. In any case, the applicant’s statement indicated that she failed to realise how serious the situation was.

The expert’s assessment was that if the applicant were to have care and control of the children then she would probably have to break off all contact with her own family. The Board concurred with the expert’s view. The applicant and C had reportedly grown up in the same neighbourhood, and the families knew each other. At least one member of the applicant’s family had demonstrated that he was willing to carry out unlawful acts on behalf of C. The applicant’s contact with her own family would therefore entail a significant risk of her and the children’s whereabouts becoming known to C. The applicant had stated that she would be willing to break off all contact with her family if the children were returned to her. However, when at the same time she said that C was no longer a threat, it was difficult for the Board to envisage that she would be sufficiently motivated to make such a sacrifice. In the Board’s assessment, C represented such a significant threat that the children would probably be at risk, even if the applicant managed to break off contact with her family. The Board referred to how C had over a period of several years demonstrated that he had both the means and the will to carry out his wishes. His rape of the applicant in March 2012, and the surveillance and death threats against her via an accomplice in the summer of 2013 showed that he had learnt nothing from the abduction in 2011. On the basis of the factors set out above, the Board assumed that, for the foreseeable future, C appeared to be prepared to use unlawful means to gain control over the applicant and the children.

It had been argued before the Board, particularly by C’s counsel, that the risk to the children would be lesser if they were with their applicant rather than placed in a foster family. The reasons given for this were that C and his family wanted the children to be returned to the applicant, and they would then be satisfied with the situation. The Board did not rule out the possibility that C and his family would be satisfied for a while and thus not represent any immediate threat if the children were returned. However, this had to be regarded as highly uncertain, and it would in any case depend entirely on how the applicant chose to live her life with the children. If she were to deviate from what was expected of her regarding how the children were raised, the children would again be at risk. Reference was made to the comment in the expert report that the children in a Kurdish family belonged to the father’s family, and that, for example, the actions of an adult or sexually mature daughter would have a bearing on the whole family’s honour.

Overall, the Board found that it had been substantiated that the risk of the children and/or the applicant being subjected to criminal offences by C had remained virtually unchanged since the High Court had considered this issue in October 2012 (see paragraph 38 above). This meant that the risk associated with disclosing A and B’s whereabouts had not decreased, even if C was currently in Iraq. The parents had argued that no attempts to abduct the children had been made since 2011, and this showed that the risk was significantly reduced. The Board did not share this view. According to the Board’s assessment, this was because the children’s whereabouts had not been disclosed and there had been a comprehensive security regime in place since July 2011.

On the basis of the above, the Board concluded that the applicant had to be deemed permanently unable to provide the children with proper care, and falling within the scope of section 4-20 of the Child Welfare Act (see paragraph 114 below). This assessment also meant that her application for revocation of the care order pursuant to section 4-21 could not be granted.

Since the Board concluded that the applicant was unable to provide proper care, it was not necessary to discuss whether the attachment criterion in section 4-20 of the Child Welfare Act (see paragraph 114 below) was also satisfied. Considering how serious the case was and its profound importance to the parties involved, the Board nevertheless found grounds to discuss this issue, and started its assessment by seeking to clarify the children’s functioning and care needs.

The Board noted that A, the oldest daughter, had shown a lot of anger and had acted out during her initial period in foster care. She had been insecure, had not wanted her foster parents to leave her, and had slept next to her foster mother at night. She had wanted constant reassurance that she was to live in the foster home forever. This had improved considerably from approximately March 2013. Most of the anxiety had now gone, and the foster home interpreted this to mean that A now felt certain that she would not have to leave the foster home. A disliked events involving big crowds, such as end-of-term events. She had taken part in a leisure activity, but had stopped because she preferred to stay at home. The appointed psychologist, B.S., had stated before the Board that A had spontaneously told him during his visits that thieves had tried to steal her. The foster parents had told him later that A had not talked about this for a long time, and that they never talked about the abduction with A. The expert’s interpretation was that A still appeared to have memories of her abduction. He also assumed that she had memories of her parents’ turbulent marriage, since she was nearly three years old at the time of her emergency placement.

Furthermore, the Board took into account that A had had several temporary placements, and psychologist B.S. had found her to be highly vulnerable with regard to new broken relationships. In his opinion, losing her foster parents would be a traumatic experience for A.

The other daughter, B, had been six months old when placed in emergency care. She had arrived in the foster home when she was about a year old. The foster parents described her as a timid girl who only wanted to sit on her foster mother’s lap. She would not let anyone get close to her except her foster mother, who could never leave a room without B following her. Gradually, the foster father had been allowed to get closer to her, first by sitting next to them while B sat on her foster mother’s lap. Even at the time of the Board’s decision, B had an extreme fear of losing her foster parents. In the autumn of 2013 the foster parents had gone away for the weekend. B had been to stay with an aunt who had children of the same age and whom B knew well and was fond of. The foster parents had prepared her thoroughly, telling her that they were going away for a few days, but that they would come back. When they had come to collect her, B had reacted with hysterical laughter that had turned into sobbing and crying. She had clung to her foster mother and repeated over and over again that they must never leave her again. Even now, four months later, B was still back at the stage where both the foster parents could not leave the room at once. She woke up two or three times during the night and said “mummy”, quietly at first. If she did not get a response immediately, she would stand up and shout “mummy” in a frightened voice.

In his report, B.S. had concluded that A and B basically had normal abilities and were resourceful children who had developed well cognitively, socially and in terms of their motor skills. However, the children’s previous experiences of their violent father, their dramatic abduction and broken relationships had made them particularly vulnerable with regard to new broken relationships.

The expert had described to the Board a strong, secure and good attachment between the children and their foster parents. B had been living in the foster home since she was one year old, and she saw the foster parents as her mother and father. The same applied to A, even though she was three years old when placed in the foster home. She knew that she had another mother who loved her, but her strong attachment was to her foster home. The Board concurred with the expert’s assessment, and found that the children had become strongly attached to the people with whom they were living and the environment in which they were living. In the Board’s view, removing the children from their foster homes would constitute a serious trauma with the potential to do great harm. Both alternative conditions in the third paragraph of section 4-20 of the Child Welfare Act (see paragraph 114 below) were thus deemed to be fulfilled.

As to adoption, the Board initially observed that the central question in the case was whether adoption would be in the children’s best interests. Adoption was a highly invasive measure and, pursuant to case-law, particularly compelling reasons were required for consent to adoption to be granted against the biological parents’ wishes. The decision had to be based on a concrete assessment, but also on general experience, as set out by the Supreme Court in a judgment reported in Norsk Retstidende (Rt.) 2007 page 561 (later brought before the Court, see Aune v. Norway, no. 52502/07, 28 October 2010 and paragraph 117 below):

“In my opinion, a clear distinction cannot be drawn between general experience and individual considerations; general experience can be expressed with varying degrees of nuance, for example, based on the child’s age when it was placed in the foster home and how long the placement has lasted and will last. The expert witness in this case has stated that, in his general experience, a foster home relationship is not the preferable option for the long-term placement of children who go to the foster home before forming an attachment to a biological parent; in such cases, adoption is in the child’s best interests. In my opinion, considerable importance must be attached to such general, but nuanced experience. However, individual circumstances – which could weigh for or against adoption – must also be assessed in relation to general experience.”

The Board found the strict conditions set out by the Supreme Court fulfilled in this case.

Research showed that adoption would generally give a stronger sense of security and belonging in a family situation than a foster placement. An adoption removed all doubts about where a child would grow up, and normally strengthened the attachment between the child and the adoptive parents. It was the Board’s assessment that this general experience also applied in the present case.

It was normally beneficial for children to have contact with their parents, even in cases where children had to live outside the home for various reasons. In principle, an adoption broke all legal ties between a child and his or her parents, and any continued contact with the biological family would normally be dependent on the adoptive parents’ ability and wish to maintain such contact.

Since the abduction, and following the Board’s decision of 24 June 2011 (see paragraph 31 above), there had been no contact sessions between A and B and their parents for nearly three years at the time of the Board’s decision of 25 February 2014. The Board therefore found that it had to be deemed that there was little attachment between the applicant and the children. This was particularly so in B’s case, who was only six months old at the time of her placement in care on an emergency basis. After the emergency placement, B had had contact sessions with the applicant for about six months, but they had ended following the abduction. Therefore, no attachment could be said to exist between the applicant and B in a psychological sense. A, who had lived with the applicant for nearly three years, would probably have an attachment to her. However, this attachment also had to be deemed considerably weakened as a result of the prolonged interruption of contact. In addition, the attachment between the applicant and A probably had to be deemed tinged by a certain amount of insecurity as a result of the family situation with the violent father.

In addition to the significantly weakened attachment, authorities that had previously considered the case had concluded that the high risk involved meant that contact between the children and their parents was not an option. The Board concurred with this assessment and found that it still applied. Stopping contact would therefore not have any major immediate consequences for the children, and such consequences, seen in isolation, did not constitute a strong argument against adoption. The security situation meant that the children’s cultural background could not be maintained without a risk of their identities being exposed, and therefore cultural considerations could not be a strong argument against adoption either.

The Board also found that the general arguments in favour of adoption applied to both A and B. In the Board’s opinion, the extraordinary circumstances of their placement and the security situation gave added weight to these arguments. Adoption had clear advantages with regard to security. The children would be able to use their new names, which would mean that the risk of their identities being exposed would be significantly reduced. The foster families currently lived under a fairly strict security regime under which, for example, they could not leave the municipality without informing the police. The police’s assessment was that the risk of another kidnapping remained high, and it was unavoidable that this would have a big impact on A and B’s lives. Although adoption would not remove the risk entirely, the reduced risk of the children’s identities being exposed would be highly beneficial.

Based on the above factors, the Board found that adoption would be in A and B’s best interests and that consent for adoption should be granted.

The foster parents’ identities were not known to the Board, and owing to security concerns they had not testified before it. This was largely why the Board had appointed expert B.S. to assess the foster parents’ suitability.

The foster parents had had daily care and control of A and B for nearly three years, which had to be considered a sufficient period in terms of assessing their suitability.

B.S., the psychologist, had spoken very highly of the way the foster parents cared for A and B. He had described both foster homes of the two daughters as characterised by warmth, generosity and sensitivity to the children’s needs. A’s foster parents’ counsellor had told B.S. that she considered the foster parents well suited as adoptive parents. Both children had developed a strong and secure attachment to their foster parents. They received the daily care, personal contact and security that they needed. The foster parents’ suitability for the task had not been contested either – either by the applicant or by C. The Board saw no reason to doubt that the foster parents would also continue to take good care of A and B in the future, and that they were fit to bring up the children as their own. Owing to the children’s age and development, obtaining their opinion was not an option.

Based on the above, the Board found that the conditions set out in the Child Welfare Act were satisfied.

In order to grant consent to the children’s adoption, the Board also had to make a formal decision to remove the parents’ parental responsibility. The Board endorsed the municipal child welfare authorities’ proposal on this point, since removal of parental responsibility was necessary and in the children’s best interests. On this basis, the Board consented to adoption in the parents’ stead.

The Board observed that the child welfare authorities had not proposed that there be an order on contact visits following the children’s adoption, because of the security situation, and the applicant had argued that failing to ask the foster parents whether they would consent to her having contact constituted a procedural error.

However, the Board found that even if the foster parents had given their consent for contact visits, that would be irrelevant, because such contact would entail too great a security risk. It had been clearly substantiated that there was a risk that C would try to find the children if there was provision for contact visits. Even if the applicant was prepared not to disclose information, the children could easily disclose information that would reveal their whereabouts and new names during contact with the mother. In the Board’s opinion, the applicant would be at great risk of violence and threats from the father, in order for her to disclose such information. Contact visits could therefore not be considered in the children’s best interests.

Both parents requested that the case be reviewed by the City Court.

The City Court reappointed B.S. as an expert. He delivered an updated report on 14 August 2014. Composed of one professional judge, one psychologist and one layperson, in accordance with section 36-4 of the Dispute Act (see paragraph 121 below), the City Court heard the case on 26 and 27 August 2014. The applicant attended with her legal aid counsel and testified. C’s counsel attended, whilst C gave evidence by telephone from Iraq. The court-appointed expert was present on the second day of the hearing, and gave evidence.

In its judgment of 9 September 2014, the City Court stated that removal of parental responsibility and adoption against the parents’ wishes under section 4-20 of the Child Welfare Act were very serious and invasive measures that required compelling reasons. The best interests of the children were the most important aspect, and the decision had to take account of this.

The City Court agreed with the Board that removal of parental responsibility and adoption was nevertheless necessary in this case, and referred to the thorough grounds given by the Board for its decision.

In addition, the City Court noted that the applicant’s situation had improved since the Board’s hearing. She had shown steady positive development and established an independent life for herself after the final breakdown of her relationship with C. The applicant was taking Norwegian language classes and undergoing training in order to improve her employment prospects. There was general agreement that, with assistance measures, she had the ability to care for children, but not two children with so traumatic a background as A and B.

The girls had had many traumatic experiences. There was no doubt that C had committed serious violence against the applicant in the presence of the girls on a number of occasions. They had had to flee to different crisis centres together with the applicant. They had also moved back to a violent father with her. This had clearly been frightening for them and they were both marked by the experience, even today.

The girls had been abducted by masked men during a contact session with the applicant. The men had injured the applicant, who had been hospitalised. The abduction had been planned by C, and the girls had been found with him in a flat in H. The plan had been to take the girls to Iraq. The abduction that their own father had put them through must have been a very frightening experience for them, one whose after-effects they were still struggling with.

The abduction had resulted in broken relationships with their emergency foster parents when the girls had been placed in new emergency foster homes. That had necessarily been followed by another rupture when they had been placed in foster homes. As a result of their background, both girls had suffered from separation anxiety but had now become strongly attached to their foster parents. They clung to them and were afraid of losing their foster parents.

The City Court reiterated the following from B.S.’s report of 14 August 2014:

“The ability to provide care must always be assessed in relation to the children’s care needs. A and B have a history and display behaviour that means that they can no longer be assumed to just have the same ordinary care needs as other children their age. If the mother were to have care and control of the children, she would have to deal with the extensive additional challenges that returning them [to her] would entail. The mother’s ability to reflect on the children’s history and special needs seems to be limited. The expert has strong doubts as to whether the mother’s ability to provide care is sufficient to meet A and B’s needs in the short and long term. Returning them [to her] is therefore not assumed to be a realistic alternative if consideration for the children’s best interests is to be the deciding factor.”

Before the City Court, expert B.S. upheld the recommendations he had made to the Board in his report of 31 January 2014 (see paragraphs 43 and 53 above).

After visiting the children in their foster homes in January 2014, he had made the following statement in that respect about the children’s attachment to their foster parents:

“When [I] last visited the foster homes, the children had started to form an attachment to their foster parents. This process has now progressed much further. [My] observations, the foster parents’ statements and the foster home counsellor’s assessments all point in the same direction: A and B have established strong attachments to their foster parents and perceive them as their psychological parents [(“sine psykologiske foreldre”)].

The interaction between A and her foster parents was characterised by a calm, warm and intimate atmosphere. [She] related to the foster parents in the way you would expect of a child with a secure attachment to her parents. The foster parents were attentive and responded to her input, but were also clear about their expectations of her.

B primarily related to the foster mother as her secure base for exploration. She was verbally active and spoke well, using varied language. She gave clear signals of what she wanted. The atmosphere in B’s home and the interaction between her and her foster parents were the same as for A: calm, pleasant and characterised by warmth and closeness.

The children basically have normal abilities and are resourceful children who have developed well cognitively, linguistically, socially and with regard to their motor skills. At the same time, they have had experiences of an unusually frightening nature. They have experienced violence committed by the father against the mother, which is today considered to be as harmful to children as their being victims of violence themselves. The children may also have suffered violence at the hands of their father. Then came the broken relationship when they were taken into care, the dramatic abduction, the emergency foster home placement, and finally the foster home placement. Although the children do not have memories of these events that enable them to tell a coherent story, many observations show that they both have fragmentary memories. A’s story about thieves who wanted to steal her in the other country and B’s fear of a bad man can be assumed to be rooted in such memories.

These experiences have left the children particularly vulnerable to new broken relationships. They both display intense separation anxiety and cling to their foster parents. A has begun to relax more and seems to have achieved a sense of security that “mummy” and “daddy” will always be there. B is in a new clingy period, triggered by the foster parents being away from her for a few nights some months ago.

In [my] opinion, there is no doubt that the children have a strong attachment to the people with whom they are living and the environment in which they are living. Being removed from them would constitute a serious trauma with the potential to do great harm, not least because of the vulnerability they have developed as a result of their experiences before the placement.”

The City Court deemed it out of the question to expose the children to the risk that returning them to the applicant would entail, and found that the conditions for this were not satisfied. They had not had any contact with their mother since the abduction on 21 June 2011. At the time of the court’s examination, they had no attachment to her. The City Court had no doubt that the children had such an attachment to their foster parents that it would be harmful to them to be removed.

Agreeing with the court-appointed expert, the City Court found it completely improbable (“helt usannsynlig”) that the parents would at any point in the future be in a position to make use of or exercise their parental responsibility. The situation was permanent, and it was in the children’s best interests that the foster parents be given parental responsibility for them.

It was sufficient for the removal of parental responsibility that the alternative requirement regarding attachment (as referred to in section 4-21 of the Child Welfare Act, see paragraph 114 below) was satisfied. The City Court nevertheless commented that there was still a risk with respect to C and his family. C had stated that the children meant everything to him, and the City Court did not rule out the possibility that he might make another attempt to take them to the Kurdistan-area if he found out about their whereabouts. The risk of this would increase significantly if the applicant were granted contact with her daughters again.

The police had carried out a new threat assessment before the main hearing in August 2014. The following was stated in their report:

“There is little doubt that the mother in particular, but possibly also the father, will continue to fight for parental responsibility in respect of their children. However, the police consider it improbable that they will find out where the children are under the current circumstances. The children are young and cannot make contact with the mother or father themselves.

However, one should not underestimate the will the father has demonstrated to get his children back. The abduction on 21 June 2011 probably required a lot of planning, and he put considerable resources into executing the plan. In addition, the abduction showed a willingness to use violent means to achieve his goals.

The father himself stated to the police that he hired people to carry out the abduction. It is unclear what role the mother played in this, but given that she brought a large sum of money and a lot of clothes and other equipment to the meeting on 21 June 2011, it is not inconceivable that she might have known more than she told the police.”

The police had concluded that the threat level was moderate at that time because the parents did not know the children’s whereabouts, but that this could change. The following had been stated in the conclusion:

“When applications are lodged for contact with the children, the threat situation could change significantly. The children have now reached an age where they could easily reveal the names of their foster parents and where they live. This applies regardless of where and how contact sessions are held. In addition, it is highly probable that the father, if he finds out that the mother has been granted contact with the children, may become active again. It is known that, in certain cultures, the father has a ‘right’ to the children when a marriage breaks down or similar situations arise. It was also an issue that he wanted to send the children back to his home country.”

The City Court found that it had been proved that a threat still existed which made it imperative to protect the children. It did not trust the applicant to be able to protect them against C if he were to become aware that she had contact with them. Nor did it trust C to accept that the children should remain in their foster homes. He had previously used accomplices and could do so again. Members of his own family could help him to take the children to the Kurdistan-area. In return for payment from C, the applicant’s half-brother had also tried to threaten her into returning to their home country.

The children could not be subjected to the risk of being abducted and taken to Iraq by people who were strangers to them. The City Court therefore also agreed to their identities remaining secret. This meant that there could be no contact with the applicant for fear that someone could reveal where they were living. If contact sessions were to take place, it would not be difficult to follow them home, regardless of what security measures were put in place.

The City Court also agreed with the child welfare authorities that adoption offered many advantages compared with placement in a permanent foster home (see paragraph 76 above). Adoption provided a higher degree of stability (“trygghet”), both for the foster parents and for the children. This was true in general, but it was particularly important to A and B, considering their history (“bakgrunn”). In this connection, it also had to be taken into consideration that the strict security measures that had been put in place to prevent another abduction had to be maintained. The children had changed their names and lived at secret addresses.

The foster parents had a strong wish to adopt the girls. According to the court-appointed psychologist, B.S., both girls had been particularly lucky with their foster home placements.

Both parents appealed to the High Court against the City Court’s judgment. The applicant’s appeal was not directed against the decision not to discontinue public care. In her declaration of appeal, she stated that she accepted that it had been a long time since her two children had been placed in their foster homes and that, having regard to their attachment at the time, she would not maintain the claim that they be returned to her. She appealed against the decision to remove her parental authority and authorise the children’s adoption, and requested that the High Court grant her visiting rights.

In a decision of 8 December 2014, the High Court unanimously refused to give the parents leave to appeal.

The High Court noted that the reasons given for the City Court’s judgment were relatively brief, but this was because that court had concurred with the reasons given by the Board. When looking at the Board’s decision and the City Court’s judgment jointly, there was no doubt (“utvilsomt”) that the children’s best interests had been considered in a satisfactory and adequate manner.

was not flawed because the significance of the children’s cultural background and identity had not been considered separately in the decision regarding what would be in their best interests. The same went for the question of sibling identity. The High Court found it clear that deciding to remove the parents’ parental responsibility and granting consent to the children’s adoption in this case was not in breach of Article 8 of the Convention or Articles 3 and 9 of the UN Convention on the Rights of the Child.

As regards the assessment of the children’s future situation with regard to security, the outcome was not central to the question of removal of parental responsibility and consent to adoption. As stated by the City Court, it was sufficient for the alternative requirement regarding attachment to be satisfied (see paragraph 98 above). This was not considered to be in dispute. Reference was made to the fact that before the High Court the applicant was no longer applying for the care order to be revoked, in view of the children’s attachment to their foster homes.

In any event, the High Court was of the view that there were no serious flaws in the City Court’s assessment of the security situation. It did not constitute a procedural error that this question had not been examined further and that no expert witnesses with particular expertise in the foreign culture aspects of the case had been appointed.

the fact that the children had been violently abducted in 2011 and the applicant had been subjected to serious threats initiated by C as recently as 2013, there was, in the High Court’s opinion, nothing to indicate that a further examination of the children’s security situation would have led to a different conclusion. The City Court had based its assessment on the police’s assessment that the level of threat against the children was currently moderate, since the parents did not know their whereabouts, but that the situation could change. The City Court had then carried out a concrete assessment of whether contact with the applicant could entail a risk of C initiating an abduction. In the High Court’s view, this assessment had not been flawed, either in terms of the assessment of the evidence or the application of the law.

The applicant appealed against the High Court’s refusal to grant her leave to appeal to the Supreme Court.

On 5 February 2015 the Supreme Court’s Committee on Leave to Appeal, composed of three Supreme Court Justices, rejected the appeal, unanimously finding that it had no prospects of success.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1992 and lives in Tver.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 7 May 2009 the applicant and his classmate A. were arrested on suspicion of causing grievous bodily injuries to a boy from their school. They confessed to their deeds. The applicant was initially released under parental supervision, whilst A. was remanded in custody. The following day they retracted their confessions.

On 16 November 2009, after the investigator had reclassified their actions as a more serious offence, the Zavolzhskiy District Court in Tver ordered the applicant’s placement in custody, citing the gravity of the charges and the fact that he had recanted. The District Court interpreted the latter element as amounting to the risk of an obstruction of justice. On 11 December 2009 the Tver Regional Court upheld the detention order on appeal, finding as follows:

“[The fact that the defendant] has a permanent place of residence, lives with his family, is studying in high school and does not have a criminal record does not provide a basis for rejecting unconditionally the investigator’s application [for a detention order] in the light of the extreme gravity of the charges.”

On 12 January 2010 the District Court extended the authorised detention period, pointing out that the applicant “had changed his attitude to the committed offence from an outright acknowledgement to a downright denial”. In the court’s opinion, that implied that the applicant might interfere with justice if released. The District Court also added that the custodial measure was necessary “to secure the enforcement of the conviction”. On 3 February 2010 the Regional Court upheld the District Court’s assessment on appeal, in particular its finding that a non-custodial measure would not be sufficient to secure the enforcement of the conviction.

On 20 January 2010 the investigator in charge of the applicant’s case refused the parents’ request for leave to visit their son, reasoning as follows:

“The investigation appointed Mr V. Smirnov, the father of Mr A. Smirnov, as the legal representative of the underage defendant. However, the investigation considers that Mr V. Smirnov is using all means to interfere with the criminal proceedings because of his vested interests; he has not responded when summonsed by the investigator or court, and is causing all kinds of delays in the proceedings. The investigation considers that this kind of conduct on the part of Mr V. Smirnov may have a negative influence of the defendant Mr A. Smirnov, as well as interfering with the establishment of the truth in the criminal case.”

On 25 January 2010 the supervising prosecutor rejected a complaint from the applicant’s father about the investigator’s decision, recalling that the granting of leave to visit a detainee was at the investigator’s discretion rather than being a legal obligation and that the arguments for refusing leave were “persuasive and well-justified”.

On 3 February 2010 the District Court issued a further extension order, holding that the applicant had been charged with a particularly serious offence and that the circumstances warranting the application of a custodial measure still obtained. On 19 February 2010 the Regional Court upheld the order on appeal.

The final extension order of 11 March 2010 referred to the gravity of the charges against both co-defendants, without distinguishing between their individual situations.

By a judgment of 25 March 2010, the Regional Court found the applicant and his co-defendant guilty of attempted murder and sentenced each of them to five years’ imprisonment. On 9 June 2010 the Supreme Court of the Russian Federation upheld the conviction.

Between November 2009 and July 2010 the applicant’s parents visited him in prison a total of sixteen times. All visits were carried out under the supervision of a warden while the applicant was separated from his parents by a glass partition.