Court/Judicial body: The European Court of Human Rights
Date: September 25, 2008 CRC
Provisions: Article 19: Protection from abuse and neglect
Other international provisions:European Convention on Human Rights ( Article 6: Right to fair hearing by a tribunal; Article 8: Right to respect for his private and family life; Article 13: Right to effective remedy before a national authority)
Domestic provisions: Human Rights Act of 21 May 1999 No. 30 (incorporating the European Convention on Human Rights into Norwegian law)
Case summary
Background: A husband was left with the care of his two children after his wife moved out of their family home. Some time later, the wife called the police to report that he was abusing substances and placing the children at risk of violence. The local child welfare services opened an investigation and concluded that the wife’s report was groundless. When she later reported additional concerns, the child welfare services again investigated the husband and again found no reason to intervene. The husband then filed a complaint before the City Court seeking a judgment that there was no legal basis for conducting an investigation against him. The City Court dismissed his case, and on appeals, the High Court and later the Supreme Court also dismissed the case, stating that the threshold for initiating a child protective investigation is meant to be low.
Issue and resolution: Child protective proceedings. The Court looked at whether the investigations carried out by the child welfare services interfered with the husband’s right to private life under Article 8 of the European Convention on Human Rights and whether the dismissal of his case by the Norwegian courts had breached of his rights to a fair hearing or to an effective remedy under Articles 6 and 13 of the Convention. The Court concluded that there had been no unjustified interference in the husband’s private life and that his rights to a fair hearing and effective remedy had not been breached.
Court reasoning: The investigations were conducted in line with Norwegian law. It was reasonable for the government to follow up on the reports of potential child abuse and neglect, and well within the scope envisioned by Article 19 of the CRC. Moreover, it would be detrimental to child protective proceedings if parents had the right to bring court proceedings to challenge the government’s decision to launch an investigation; therefore, the applicant’s access to justice was not unacceptably limited.
Excerpt citing CRC and other relevant human rights 43. The human rights of children and the standards to which all governments must aspire in realising these rights for all children are set out in the Convention on the Rights of the Child . This instrument entered into force on September 2, 1990 and has been ratified by 193 countries, including Norway, which has also incorporated it together with the Convention into its domestic legal order (1999). 44. The Convention spells out the basic human rights that children everywhere— without discrimination— have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children’s rights by setting standards in health care, education and legal, civil and social services. 45. States parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child. Moreover, states parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is end to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 46. Article 19 reads: “ 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2.Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” … 63. As to the further question whether the impugned interference was “ necessary” , the Court notes by way of preliminary observation that it fell within the range of measures envisaged in art.19 of the UN Convention on the Rights of the Child for States to take in order to prevent abuse and neglect of children. This is an important consideration to be borne in mind in the assessment of the necessity of the interference. Indeed, the parties were in agreement before the Court that, as pointed out by the Supreme Court, the threshold for commencing a s.4-3 investigation should be low. … 67. In any event, a general duty such as that suggested by the applicant, for the child welfare authorities to thoroughly investigate the validity of a report of concern before opening an investigation could hardly be derived from art.8 of the [European] Convention. If it were to be a prerequisite that all such reports, even those that appear credible on their face, should be verified in advance, it would risk delaying such investigations, deflecting attention and resources away from the real problems and reducing their effectiveness and hampering efforts in instances where it was paramount to establish urgently and without delay whether a child was living under conditions that may harm his or her health or development. In this connection, the Court cannot but note the emphasis placed on effectiveness in art.19 of the UN Convention on the Rights of the Child.
CRIN comments: CRIN believes that all children have the right to live free from abuse and neglect, and that governments have the responsibility under Article 19 of the CRC to ensure that this right is respected. While the balance between respect for private life and the need for state intervention is difficult to strike, governments must be able to investigate possible incidences of violence against children in the home. In this sense, CRIN believes that this decision is consistent with the CRC.
Citation: (2009) 49 E.H.R.R. 4
Link to full judgement: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=23880&sessionId=39847476&skin=hudoc-en&attachment=true