EHRM, 02-12-2021, nr. 36516/19

The applicant has two children living in Norway, T. and G., born in 1999 and 2011 respectively. He lives in Gambia and is married and has five children there.

The applicant was married to K.J. when their oldest son, T., was born in Gambia in 1999.

The applicant and K.J. divorced around 2003. K.J. married another man in Norway who successfully applied for family reunification with her there in 2003. K.J. was given an independent residence permit in 2004. The oldest son, T., was given a residence permit in Norway in 2007. Until then he had resided with his grandmother in Gambia.

G. was conceived when K.J. visited Gambia for three weeks in 2010. K.J. returned to Norway, and G. was born there in 2011.

In 2011 or 2012 the Norwegian Labour and Welfare Directorate (Arbeids- og velferdsdirektoratet) contacted K.J. to clarify who G.'s father was. She informed them that it was the applicant and the Directorate therefore sent a request to the Norwegian embassy in Ghana, who tried to track down the applicant through the consulate in Gambia. They were able to reach the applicant's brother, who stated that the applicant had moved to Guinea-Bissau. As they were unable to reach the applicant himself, the matter was put on hold in 2012. K.J. was informed that she should contact the Directorate if she received new information about the father. As the applicant himself has not recognised paternity of G., he is listed with an unknown father in the Norwegian National Population Register.

The applicant has never been to Norway, and neither has he ever had parental responsibilities for G. From his birth in 2011, G. lived with his mother and brother in Norway.

G. met with the applicant in Gambia in 2015, when K.J. took her children on a two-week holiday there. The parties' accounts of the degree of contact between the applicant and G. differ. The applicant submitted that K.J. and the children stayed close to where he lived, and that the applicant and G. saw each other every two to three days during that period. G. had probably also been to Gambia and met the applicant once prior to that. Moreover, the applicant maintained that he also had telephone contact with the children until K.J. died on 25 June 2017; the Government have argued, however, that it is undisputed that G. did not speak English at this time, and that he would therefore not have been able to communicate with the applicant in a shared language.

After the death of their mother, G. lived with a friend of the family, G.N., whom they call an ‘uncle’, and his family. At some point, G.'s maternal uncle, M.J., arrived in Norway from England to look after G. and they moved into K.J.'s flat together. T. then moved out.

On 20 August 2017 G.N. (see paragraph 12 above), applied to the City Court (tingrett) to be given parental responsibilities for G. That application was withdrawn on 29 August 2017. The City Court notified the child welfare services of the situation; they had already been informed of K.J.'s death.

On 19 September 2017 the sister of G.'s late mother, A.J., who lived in England, applied to the City Court to have parental responsibilities for G.

On 10 October 2017 the City Court received an email from the applicant, also applying for parental responsibilities for G.

The City Court appointed a lawyer to assist G., who submitted a response to the applications on 13 October 2017.

The applicant further explained his application for parental responsibilities for G. in a letter of 23 October 2017.

On 25 October 2017 the City Court held a planning meeting which a court-appointed expert, G's uncle M.J. (see paragraph 12 above), G.'s guardian, A.J.'s lawyer (see paragraph 14 above) and the lawyer appointed by the City Court to assist G. (see paragraph 16 above) attended. It was decided that the expert should examine the situation in England further. The expert was given a mandate and asked to prepare a written report.

In the meantime, on 22 November 2017, the applicant applied for a Schengen visa at the Norwegian embassy in Accra. On 29 November 2017 the embassy rejected the application, giving the following explanation:

The applicant lodged an appeal against the decision not to issue a visa with the Directorate of Immigration (Utlendingsdirektoratet — UDI), which rejected it on 6 April 2018.

In the meantime, on 17 December 2017, the City Court had received a further written communication from the applicant, in which he explained that he had not been granted a visa at that time.

The court-appointed expert (see paragraph 18 above) submitted her written report on 2 January 2018. The City Court held a hearing on 4 January 2018. A.J. attended and gave evidence and one witness was heard. The expert also gave evidence about her work on the case. G.'s guardian opposed the applications from both A.J. and the applicant.

The City Court gave judgment on 8 January 2018. It reiterated that G's mother, K.J., had had sole parental responsibilities for G. when she died. G.'s father, the applicant, had at no time lived with the family in Norway. As a result of this, there was, within the meaning of section 38 of the Children Act, no longer anyone with parental responsibilities for G. and, as provided in section 63 of the Children Act, the City Court had to decide on the applications from those who had applied to have parental responsibilities granted to them (see paragraph 49 below).

The City Court found that there would be a danger of G. not being given adequate care and maintenance, or that he would suffer in other ways, if A.J. were granted parental responsibilities for him. Her application was therefore dismissed. The court then moved on to assess the applicant's application, and noted in that context that he had never been to Norway and had expressed the wish that G. should move to Gambia. Moreover, G. knew little of the applicant — he had probably only met him once and spoken to him on the telephone a few times. In addition, the applicant had failed to show much interest in assisting G. after his mother's death. There was in the City Court's assessment a significant danger of G. not being given adequate care and maintenance if the applicant were to be granted parental responsibilities for G.

After assessing all the information that had been presented to it, the City Court found that the minimum standards referred to in the third and fourth paragraphs of section 63 of the Children Act had clearly not been met (see paragraph 49 below) and the applicant's application to be granted parental responsibilities for G. was therefore dismissed.

Since the City Court had dismissed both of the applications for parental responsibilities for G., it notified the child welfare services in accordance with section 63 of the Children Act (see paragraph 49 below). G. had already been placed in a foster home by that time.

G.'s aunt, A.J., appealed against the City Court's judgment to the High Court (lagmannsrett). The applicant wrote a letter to the City Court following its judgment. The High Court did not, however, consider that by writing the letter the applicant had intended to appeal against the City Court's judgment and he was therefore not included as a party to the case. A preparatory meeting before the High Court was held in June 2018, at which the applicant was accordingly not present or represented. The High Court scheduled the hearing of the appeal for 11 and 12 September 2018. The High Court reappointed the expert that had been appointed by the City Court (see paragraph 18 above), who submitted a first report to the High Court on 31 August 2018.

In the meantime, on 27 June 2018, the applicant applied again for a Schengen visa. The Directorate of Immigration rejected the application on 25 July 2018. The applicant appealed against that decision on 17 October 2018.

It became clear that the applicant had intended to appeal against the City Court's judgment and he instructed counsel, who presented herself at the High Court on 30 October 2018. A new preparatory meeting was held on 15 November 2018 and the hearing was rescheduled for 10 and 11 January 2019.

On 22 November 2018 the High Court wrote a letter to the Directorate of Immigration. It confirmed that the applicant was a party to a case before it concerning parental responsibilities for his son, following the death of the child's mother, and stated that the hearing of the appeal had been scheduled for 10 and 11 January 2019 and that it was desirable that the applicant be present throughout the whole hearing. It was expected that he would give evidence, and both the court-appointed expert, members of the bench and the parties' counsel would want to put questions to him. Given the far-reaching character of the case, the High Court considered that evidence given by Skype would not be an optimal solution.

In the letter, the High Court further stated that it was of the view that it was important for the elucidation of the case and for the equality of arms between the parties that the applicant be present throughout the whole hearing. The applicant had opposed A.J.'s application and he had to be given the opportunity to question her and any witnesses she might wish to present. It would be difficult to ensure these rights as a party for the applicant if he were not present.

The High Court stated furthermore that, in purely technical terms, the proceedings could be transmitted to Gambia via video-link so that the applicant could follow them, providing that compatible equipment could be found. But the applicant would have to be able to discuss with his counsel when questions were put and, as they could not discuss openly in front of the whole court, it was difficult to picture how it would be possible to carry out the hearing without numerous interruptions.

On 3 January 2019 the expert appointed by the High Court submitted a second report (see paragraph 27 above).

The Immigration Appeals Board (Utlendingsnemnda — UNE) dismissed the applicant's appeal against the rejection of his application for a Schengen visa (see paragraph 28 above) on 7 January 2019. The Appeals Board concluded that the likelihood of the applicant returning to his home country was not sufficiently high to enable a visa to be granted. The decision included, inter alia, the following considerations:

The applicant since several times requested that the decision be revised, and one of the decisions taken in response to a request to that effect was made on 29 May 2019.

In a letter received by the High Court on 8 January 2019, the applicant requested that the appeal hearing be rescheduled, due to the negative decision of the Immigration Appeals Board. He argued that the refusal to grant him a visa was invalid, and that the High Court had to reschedule the hearing until a visa had been granted, so that he could attend it.

The High Court refused the request in a decision of 9 January 2019, in which it noted that it was not likely that the visa decision was flawed. It also took note of the fact that the applicant had understood that he might not get a visa and that the possibility of following the proceedings by Skype had been outlined already in the planning meeting in November 2018 (see paragraph 29 above). For the High Court, the applicant following the proceedings via Skype was not a perfect solution, but acceptable in the circumstances. The High Court, moreover, distinguished the applicant's case from that in Cılız v. the Netherlands (no. 29192/95, ECHR 2000-VIII), inter alia on the grounds that it was not a similar issue of interference with family life in the applicant's case, since he had never lived with G. and had only met him twice. In addition, the High Court stated that the fact that the expert reports (see paragraphs 27 and 33 above) had not been translated did not give grounds for rescheduling and pointed out that the first report dated from as early as 31 August 2018. Lastly, the High Court emphasised that it was important for G. that the matter relating to parental responsibilities for him be decided — since more than a year since the City Court had given judgment had already passed — and that the applicant had counsel who would protect his interests during the appeal proceedings.

The appeal hearing was held in the High Court on 10 and 11 January 2019. A.J. attended with counsel, as did G.'s guardian and lawyer, the court-appointed expert, and the applicant's counsel. In addition to the parties and the court-appointed expert, five witnesses gave evidence. On 10 January 2019 the applicant asked in limine litis for his appeal and that of A.J.'s to be split, so that his appeal could be examined at a later point in time. The High Court refused the request. The court records include the following order:

Moreover, it appears from the court records that the issue of the applicant's participation via Skype was returned to on several occasions, inter alia by way of the following notes:

In its judgment of 11 February 2019, the High Court dismissed the appeals. The High Court concluded that it was not in G.'s best interests that his aunt, A.J., or the applicant be given parental responsibilities for him. After describing the legal framework, the High Court first set out G.'s situation, before turning to the applications of A.J. and the applicant, respectively.

In respect of G.'s situation, it stated among other things that G. was well aware of the ongoing dispute about him and that it had been an additional burden on him. According to the expert (see paragraph 27 above), G. needed peace, stability and predictability going forward. He was a child with special needs both in terms of emotional and social development and the expert recommended that he live with people with special skills regarding children and development, care persons who would be particularly sensitive to his signals and able to recognise and interpret his fundamental needs and emotional states. Moreover, the expert reported that G., who was by then nine years old, had found his place in his foster family and called them ‘mummy, daddy and big brother’. He had stated clearly that he wanted to live with them in Norway and the expert considered that removing him from them would represent a risk to his development.

The High Court went on to find that it would not be in G.'s best interests for A.J. to be given parental responsibilities for him. In that context it took note that A.J.'s application to be given parental responsibilities had been made on the assumption that she would also have daily care of him. Turning, then, to the applicant's application, the High Court noted that it had become clear that he did not wish to be responsible for the daily care of G. and for G. to move to his home in Gambia. It appeared uncertain to the High Court whether the applicant intended to come to Norway and claim responsibility for the daily care of G. at a later point in time.

Furthermore, the High Court emphasised that as the question before it was whether it would be in G.'s best interests for the applicant to be given parental responsibilities for him without also being given daily care of him, the applicant's parenting skills were not relevant. According to the expert, it would be positive if the applicant gained parental responsibilities for G. provided he did not want G. to move, but otherwise it would in her opinion be unnatural for the applicant to participate in parental-responsibility decisions. A potential future case concerning daily care would be a heavy burden on G., but the expert stated that if the applicant were granted parental responsibilities, she would expect him to maintain a low profile, and to introduce him and his family cautiously. The expert further asserted that what was important to G. at the time was where and with whom he lived. Who had parental responsibilities for him was less important.

The High Court stated that it agreed with the expert that it would not have any immediate practical consequences for G. whether or not the applicant was granted parental responsibilities, and that what seemed important was that the applicant become a part of G.'s life in due course, in a way that was useful for G. In the first place, this could be by sending photographs, showing an interest in G.'s daily life, and being there if G. was interested in contact. Gradually they could become better acquainted. Such contact would not depend on the applicant having parental responsibilities.

As to parental-responsibility decisions, the High Court noted that the applicant had little knowledge about G. and therefore lacked the qualifications to participate in those decisions in a manner that would be in G.'s best interests. In addition, the geographical and cultural gulf between the applicant and G.'s care provider in Norway would make shared parental responsibilities between the applicant and G.'s guardian difficult.

The High Court also stated that it had to be mindful of the fact that the applicant would, were he given parental responsibilities for G., be more easily able to initiate future proceedings concerning G. It referred to the applicant having made different statements about what he wished for G. with regard to where and with whom he was to live. The High Court stated, lastly, that it considered that the Court's judgment in Gül v. Switzerland (19 February 1996, Reports of Judgments and Decisions 1996-I) did not provide guidance, as the applicant's case concerned only issues of parental responsibilities, not daily care, whereas the case of Gül had concerned family reunification.

The applicant appealed against the High Court's judgment to the Supreme Court (Høyesterett). The Supreme Court's Appeals Committee (Høyesteretts ankeutvalg) refused him leave to appeal in a decision of 10 April 2019.

On 4 October 2019 the applicant applied to the City Court for judicial review of the visa decision of 7 January 2019 of the Immigration Appeals Board, that had not been refused revised in, inter alia, a decision of 29 May 2019 (see paragraph 34 above) by way of a civil lawsuit against the Norwegian State. He also requested a declaratory judgment holding that there had been a violation of Article 8 of the Convention on the grounds of that decision.

The court hearing took place on 5 May 2020, and the City Court delivered its judgment on 10 June 2020. It concluded that the relationship between G. and the applicant did not amount to ‘family life’ within the meaning of Article 8 of the Convention. The visa rejection therefore did not violate Article 8. However, it found that there had been a procedural error in the decision of the Immigration Appeals Board. The Board had originally been under the assumption that the applicant had not documented his family relations in Gambia. This point had been rectified in one of several motions for reversal, but the City Court found that the Immigration Appeals Board had not assessed the case on the correct factual grounds. The decision was therefore found to be invalid.

The applicant complained that the proceedings through which he sought to be granted parental responsibilities for his child were not conducted fairly in violation of Article 6 of the Convention, which reads as follows: