Criticism and Response : Exploring the Development of Children’s Human Rights in Case Law from the European Court of Human Rights and the Norwegian Supreme Court

Abstract

Background and aim: Worldwide protests against the Norwegian Child Protection Service (CPS) have contributed to placing children’s human rights in the international spotlight. The European Court of Human Rights (ECtHR) has noticed the protests, with an increasing number of cases highlighting violations by the Norwegian CPS.

From 2017 to January 2024, the ECtHR dealt with more cases involving the Norwegian CPS than all other European countries combined. Despite previously seeming aligned with the ECtHR, recent criticism suggests a divergence in the interpretation and application of children’s rights between Norway and the ECtHR. The reasons behind this divergence remain uncertain. Consequently, two research objectives aim to explore the development of children’s rights within the ECtHR and the Norwegian CPS, forming the basis of the thesis: 1) How have children’s human rights developed in case law from the ECtHR? and 2) What has the criticism from the ECtHR against the Norwegian CPS meant for the development of children’s rights in Norway?

Sub-objectives: To answer the overarching objectives of the thesis, three sub-objectives were identified. The first two objectives aimed to illuminate the development of children’s rights in case law from the ECtHR, while the third focused on examining the implications of criticism against the Norwegian CPS for the development of children’s rights in Norway.

The first sub-objective aimed to investigate how the ECtHR navigates the balance between the rights of biological parents and those of children in care order cases by conducting an argumentation analysis on the judicial precedent set by each case. This approach gave insight into how the biological parent’s and children’s position in Court, and consequently their rights, have developed over time.

The second sub-objective aimed to explore the Convention on the Rights of the Children (CRC) imprint on judgments from the ECtHR. Past research has shown that the CRC has little direct influence on decisions made by the ECtHR, even though the convention is renowned for being the foremost developer of children’s rights worldwide (Archard, 2011). The sub-objective focused on the potential indirect influence of the CRC on judgment from the ECtHR, investigating whether the CRC had made its mark on the development of children’s rights in case law from the Court.

The last sub-objective examines the development of contact rights in care order cases in light of case law from the ECtHR. It explores the interaction between the ECtHR and Norwegian Supreme Court (NSC) and maps how the implementation of contact rights has developed over time. The sub-objective focuses on contact rights because it was identified as one of the primary sources of criticism from the ECtHR (NIM, 2020). Thus, the objective highlights the development within one of the most criticised areas in the field of care orders.

Methods and data: The data material includes judgments from both the ECtHR and the NSC. It encompasses all care order cases handled by the ECtHR until late 2020 and by the NSC until mid-2022. The thesis took a mixed-method approach to document analysis on the court judgments. Article 1 employed discourse analysis based on Habermas’ theories of communicative rationality, along with descriptive statistics. Article 2 utilised deductive qualitative content analysis, correlation analysis, and descriptive statistics. Article 3 employed inductive qualitative content analysis, along with descriptive statistics.

While qualitative methods delve into judges’ deliberations to understand adherence to children’s rights, quantitative methods analyse statistical trends in court decisions regarding the development of children’s rights. Combining qualitative and quantitative methods provides comprehensive insights into the overarching research objectives as well as the sub-objectives. In short, the chosen approach offers nuanced insights into the evolving landscape of children’s rights.

Findings: Article 1 found a noticeable trend of increasing strength in children’s rights, and that those rights were primarily connected to their interests. Initially considered a ‘sound and weighty consideration’ (Olsson v. Sweden (No.1), 1988, para. 72), children’s interests developed to become ‘of particular importance’ (Johansen v. Norway, 1996, para. 78) before ultimately being deemed ‘paramount’ in court decisions (Neulinger and Shuruk v. Switzerland, 2010, para. 135). However, there are indications that the position of biological parents may have also strengthened in recent years. Criticism was directed at Norway in 2019 for failing to adequately balance the interests of the child and those of the biological parents. Nevertheless, the ECtHR maintains that the best interests of the child remain paramount.

Article 2 did not find a significant statistical impact of the CRC on the ECtHR’s decision. There were no correlations between the use of the CRC as a legal argument and the outcome of the cases. Nevertheless, there were indications of a development over time. The qualitative analysis, on the other hand, revealed an active use of the CRC in the judges’ deliberations. The article found varying positions amongst the judges regarding the direction in which children’s rights should traverse. Nevertheless, there seemed to be a shared understanding among judges about the CRC’s significance in the development of children’s rights. The article argues that the CRC has had a notable indirect impact on developing children’s rights in the ECtHR.

Article 3’s findings underscore that the ECtHR’s criticism towards the Norwegian CPS has had a significant influence on the NSC’s judgments. The NSC appears to have adopted a new approach by directly incorporating passages from ECtHR rulings into its judgments, leading to a notable increase in references to the ECtHR. Moreover, the article notes that the NSC asserts that its practices align with those of the ECtHR while stating that changes are primarily needed in Norwegian child protection practices rather than in NSC assessments (HR-2020-661-S, para. 112), indicating that the NSC believes that changes primarily must occur from bottom-up. However, while the ECtHR becomes more prominent in NSC judgments following the criticism against the Norwegian CPS, there seems to be limited substantial changes in how the NSC addresses contact rights. As mentioned, the NSC asserts that the primary focus should be on changing Barnevernet’s practices rather than altering established court procedures. This emphasis makes the observed changes in the NSC judgments seem more visual than contextual.

Discussion and conclusions: The analysis of the thesis’ first overarching research objective, focusing on the development of children’s rights in ECtHR case law, demonstrates a significant strengthening of these rights over time. The findings indicate a notable shift in the Court’s argumentation, with a transition towards subjective considerations, such as the interests of the child and biological parents, as opposed to objective arguments solely based on their rights.

The ECtHR’s increasing emphasis on subjective assessments, particularly regarding the child’s best interests, raises questions about susceptibility to external influences, such as social mobilisation groups. While the Court acknowledges the paramount importance of the child’s interests, recent cases indicate a more balanced approach considering the rights and interests of the biological parents as well. This shift towards achieving equilibrium in evaluating conflicting interests could potentially introduce a new level of subjectivity into judgments, rendering decisions susceptible to manipulation by societal norms and values.

Despite these concerns, the overall trajectory suggests a positive trend towards the strengthening of children’s rights within the ECtHR. Nevertheless, the heightened emphasis on subjective arguments underscores the necessity for careful consideration to ensure that judgments retain impartiality and prioritise the genuine welfare of children.

Regarding the second overarching research objective concerning what the criticism against the Norwegian CPS has meant for the development of children’s rights, the results find indications of an increase in the ECtHR’s influence on judgments from the NSC. However, as mentioned, despite indications of a shift in the NSC’s approach to ECtHR case law, the changes seem more visual than contextual, as the NSC emphasises the need for change within Barnevernet rather than changing court procedures, suggesting a bottom-up approach to change.

There are signs that the NCS comments, and consequently the ECtHR’s judgments, have influenced decision-making within Barnevernet, potentially impacting legal developments in Norway.

The introduction of the new Child Welfare Act (CWA) in 2021 reflects an increased emphasis on children’s human rights. While this focus is not solely a response to criticisms against Norway, as the process for the new law began before such criticisms emerged, the phrasing of the CWA of 2021 clearly aligns with children’s human rights, including those outlined in the European Convention on Human Rights (ECHR) Article 8. Nevertheless, it is crucial to interpret the CWA in the context of human rights treaties like the ECHR, underlining the significance of the ECtHR case law in shaping children’s rights in Norway.