Private persons
II. RELEVANT DOMESTIC LAW 23. At the time of the national courts'consideration of the present case, the right of access between a parent and a child was governed by sections 44 and 44A of the Children Act 1981 ( Lov om barn og foreldre ( barnelova )). Under section 44 the child had a right of access to both parents, even if they lived apart, and the parents had mutual responsibility for implementing the right of access. Under section 44A the parent with whom the child did not live had a right of access to the child unless otherwise agreed or determined. The provision contained more detailed rules on the extent of access, its implementation and the procedure. It provided that decisions should first and foremost be based on what was best for the child. 24. Provisions governing the contents of judgments in civil proceedings may be found in Chapter 12 of the 1912 Code of Civil Procedure ( tvistemålsloven ). In so far as relevant Article 144 provides: “A judgment shall contain: ... 3. A brief presentation of the object of the case and of the parties'submissions; when appropriate, reference may be made to written pleadings filed in the case, or to entries in the court record; if so, the material referred to shall be included in transcripts of the judgment; 4. Reasoning for the decision; they shall decisively and exhaustively indicate the facts of the case on which the court bases its decision 5. An operative part. ... .” THE LAW I. THE SCOPE OF THE ISSUES BEFORE THE COURT 25. In his observations at the merits stage, the applicant firstly reverted to his complaint under Article 6 § 2 of the Convention and requested the Court to reconsider its decision of 1 June 2006 declaring this part of the application inadmissible on grounds of non-exhaustion. It was the fault of the lawyer who had represented him before the national courts that this complaint had not been pursued before the Supreme Court. 26. However, the above decision is final and the Court finds that no reasons have been brought forward for it to examine whether it should be re-opened. 27. Secondly the applicant complained about lack of impartiality of the High Court on account of the participation of a judge who had been divorced from a brother of the judge who had dealt with the case in the City Court. 28. However, the Court observes that this is a new complaint, which is not covered by its decision on admissibility and therefore falls outside the ambit of the case. 29. In the light of the above, the Court will confine its examination to the applicant's complaints under Articles 6 § 1 and 8 of the Convention, declared admissible on 1 June 2006, concerning the impugned reasoning in the High Court's judgment of 27 September 2002. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 30. Article 8 of the Convention reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1. The applicant 31. The applicant maintained that the relevant passage of the High Court's judgment amounted to an affirmation of suspicion that he had committed sexual abuse. Referring to a medical statement of 7 June 2003 (see paragraph 2 1 above) the applicant submitted that, having been labelled a sexual abuser, he had suffered serious psychological and social problems. He also invoked a psychiatrist's statement of 4 September 2006 (see paragraph 2 2 above). The impugned passage entailed an unjustified interference with his right to respect for private and family life in violation of Article 8 of the Convention. 2. The Government 32. The Government pointed out that that reference to the allegation and the evidence adduced in this respect was due to the fact that this was the main argument presented by the mother. They emphasised that the disputed passage did not determine the applicant's civil rights or determine the question of criminal guilt. The High Court's decision that it was not necessary to explore whether he had assaulted his son did therefore not in any respect affect the applicant's rights under Article 8. The question of abuse did not affect the outcome of the proceedings in question. Any such assessment would have been superfluous, since the other circumstances in the case were more than sufficient for the Court to determine that access should not be granted. Article 8 was therefore not applicable to the obiter dictum at issue. B. Assessment by the Court 33. The Court does not find that the issue under Article 8 of the Convention can, as suggested by the Government, be analysed solely with reference to the outcome of the case before the High Court. Even though the impugned passage in the High Court's judgment of 27 September 2002 had no bearing on its conclusion with regard to the applicant's claim of access rights in respect of his sons, it nonetheless conveyed information to the effect that the High Court, having regard to the state of the evidence, held a suspicion that the applicant had sexually abused L. It not only related to the most intimate aspects of the applicant's private life but it also suggested that he might have engaged in highly reprehensible conduct vis-à-vis a person to whom he had family ties, his son. The information was moreover capable of adversely affecting his enjoyment of private and family life, in the ordinary sense of these terms. Therefore, in the Court's view, the facts underlying the applicant's complaint fell within the scope of Article 8 of the Convention which provision is therefore applicable to the matter at hand. 34. Furthermore, the Court finds that the inclusion by the High Court of the disputed statement as a part of its own reasoning in the judgment constituted an interference with the applicant's right to respect for his private and family life as guaranteed by Article 8 § 1 of the Convention. It will therefore have to consider whether the interference was justified under Article 8 § 2. 35. In this regard the Court notes that it is undisputed that the interference was “in accordance with the law” and the Court finds no reason to hold otherwise. 36. As to the question of whether the inclusion of the statement pursued any of the legitimate aims enumerated in Article 8 § 2, the Court has taken note of the Government's explanation, made in the context of Article 6 § 1, that it was included because the abuse argument had been the mother's principal submission, though it had not affected the High Court's decision. The Court has further noted the applicant's submission, in connection with his complaint under Article 6 § 2 (declared inadmissible on 1 June 2006), that the relevant passage amounted to an affirmation of suspicion that he had committed sexual abuse and that, despite the High Court's statement that this matter had not been decisive for the outcome, it was hard to believe that this was not the case. The Court for its part finds no reason to doubt that the impugned statement had been prompted by H.T.'s principal submission and the applicant's objection thereto, that he had sexually abused L. The Court is prepared to accept that when the High Court touched upon this matter in its reasoning concerning the applicant's request to be granted a right of access to the children, it was in the pursuit of one or more of the legitimate aims enumerated in Article 8 § 2, notably for the protection of the rights and freedoms of others. 37. However, turning to the next criterion in Article 8 § 2, the one of necessity, it is not apparent to the Court why the High Court, in the first part of the impugned statement, held: “In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.]'s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred.” when in the second part it went on to say: “The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.” It thus appears that, without it serving any purpose for its resolution of the case, the High Court took judicial notice of the evidence before it and affirmed on this basis a suspicion of its own that the applicant had committed a serious crime, sexual abuse against one of his sons. No cogent reasons have come to light as to why the High Court in part dealt with, in part omitted to deal with the issue of sexual abuse. In the Court's opinion, the national court should either have disposed of the issue, with all that means in terms of evidentiary assessment and reasoning, or have left it on the side. 38. Furthermore, the Court observes that the above portrayal of the applicant's conduct in an authoritative judicial ruling was likely to carry great significance by the way it stigmatised him and was capable of having a major impact on his personal situation as well as his honour and reputation. Indeed, as it appears from the medical certificate of 3 June 2003, the statement had harmed him both psychologically and physically, had had a stifling effect on his social life and had prejudiced his family life. Despite its character and potentially damaging effects on his enjoyment of private and family life, the inclusion of the said passage in the High Court's judgment was not supported by any cogent reasons. 39. In the light of the above, the Court finds that the interference with the applicant's right to respect for his private and family occasioned by the impugned passage in the High Court's judgment, was not sufficiently justified in the circumstances and, notwithstanding the national court's margin of appreciation in such matters, was disproportionate to the legitimate aims pursued. Accordingly, the contested part of the High Court's judgment gave rise to a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. Article 6 § 1 of the Convention, in so far as is relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Arguments of the parties 1. The applicant 41. Relying on the above provision, the applicant complained about the way in which he had been portrayed in the High Court's judgment and its assessment of the evidence in this respect. He accepted that, in deciding on parental access to a child, a court should be able to consider the validity of an accusation that the parent concerned had sexually abused the child. However, he submitted that the High Court had pointed to sexual abuse whilst at the same time refraining from making a real assessment of the evidence and taking a stance on this matter. The impugned statement had caused him considerable moral injury and suffering and prejudice to his private and family life. 2. The Government 42. The Government argued that the disputed passage in the High Court's judgment did not involve the determination of a civil right within the meaning of Article 6 § 1 of the Convention. As clearly stated in the judgment, the High Court did not find it necessary to determine whether abuse had occurred. The outcome of the case depended solely on other elements and it was therefore not necessary to assess the question of abuse. The disputed passage was merely an obiter dictum. Article 6 § 1 was therefore not applicable to the said passage alone. 43. The sole civil right determined by the High Court concerned the applicant's right to access to his children. To assess whether the reasoning was adequate for the purposes of Article 6 § 1 in this respect, the Court ought to consider the judgment as a whole. The reasons given for not granting the applicant access were highly detailed, both with regard to fact and law. Although the mother had claimed before the High Court that the applicant had assaulted the oldest child, the sole question before the High Court was whether the applicant should be granted access to the children. Based on the evidence presented, the testimonies of the two parties and five witnesses and the statements from the court appointed expert, it was clear to the High Court that the applicant should not be granted access to the children irrespective of whether he had abused the oldest child. The High Court was therefore in no respect obliged to address the issue of abuse. Its reference to the allegation and the evidence adduced in this respect was due to the fact that this was the main argument presented by the mother. However, it was nonetheless explicitly clear from the judgment that the allegations of abuse did not affect the High Court's decision not to grant the applicant access to the children. Thus, there was no need to give reasons with regard to this factual accusation by the mother. 44. In substance, the applicant argued that the High Court should have determined whether he had abused the child or should not have commented on the issue at all. If such an argument were to prevail, this would entail that national courts in the Member States could not give obiter dicta without also in this respect giving full reasons according to Article 6 § 1. This would be a severe break with the traditional view of the right to give obiter dicta, and even more so in this case since the disputed passage did not determine a civil right according to Article 6 § 1. 45. In the view of the Government, the rationale for the requirement in Article 6 § 1 that lower courts give reasons, namely to enable the parties to make effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001 ), did not apply to obiter dicta. All in all, under existing case-law, the national courts could only be obliged to indicate the grounds on which they based their decision (see, inter alia, Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no. 252, p. 16, § 33 ). An explicit statement in a judgment that the court did not find it necessary to conclude on a factual argument presented by one of the parties could thus not violate the obligation to give adequate reasons. B. Assessment by the Court 1. Applicability of Article 6 § 1 46. The Court notes that the Government do not seem to contest the applicability of Article 6 § 1 to the proceedings in which the national courts determined the applicant's claim for a right of access to his two sons. The Court for its part is satisfied that the relevant proceedings concerned a “right” that was arguably recognised under national law, namely under sections 44 and 44A of the Children Act 1981, in their respective versions as in force at the material time. Moreover, the dispute was genuine and serious; it related not only to the actual existence of a right but also to its scope and the manner of its exercise. The result of the proceedings was directly decisive for the right in question which, moreover, was “civil” in character. Thus, having regard to its own case-law ( see, for instance, W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 32- 35, § § 72-79; Zander v. Sweden, judgment of 25 November 1993, Series A no. 279-B, and Kerojärvi v. Finland, judgment of 19 July 1995, Series A no. 322; see also more recent judgments, where the applicability of Article 6 § 1 was undisputed: Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, pp. 38-39, § § 88-90; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 37-40, § § 95107; Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996 ‑ III, pp. 1010-11, § 87-88; Görgülü v. Germany, no. 74969/01, § 56-60, 26 February 2004; Bianchi v. Switzerland, no. 7548/04, § § 101-115, 22 June 2006 ), the Court finds that Article 6 § 1 was applicable to the proceedings in question. 47. Meanwhile, the Government argued that, because the impugned passage in the High Court's judgment of 27 September 2002 was an obiter dictum, the latter did not involve the determination of a dispute attracting the applicability of Article 6 § 1 to the matter at hand. However, the Court is unable to accept this argument. Although the statement in question may not have had a bearing on the outcome, it was nonetheless closely related to the issue to be determined by the High Court. The Court is of the view that Article 6 § 1 was applicable to the proceedings as a whole, including to the reasons stated by the High Court in its judgment. 48. In sum, Article 6 § 1 was applicable to the subject-matter of the applicant's complaint. 2. Compliance with Article 6 § 1 49. Turning to the question of compliance the Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal an appellate court may, in principle, simply endorse the reasons for the lower court's decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2930, § § 59 and 60). A lower court or authority in turn must give such reasons as to enable the parties to make effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001). 50. The Court sees no reason to doubt that the High Court's judgment provided reasons that must be deemed sufficiently detailed for its conclusion that the deprivation of access was on balance justified by the children's best interest. 51. However, the problem in the present instance is rather one of excess of reasoning on a matter that was of a particularly sensitive nature and of paramount importance for all the persons concerned. The Court, having regard to its findings above in respect of Article 8 of the Convention, does not find it necessary to carry out a separate examination in relation to Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. The applicant sought no compensation for pecuniary damage but claimed an amount, not exceeding 1,000,000 Norwegian kroner (“NOK”, approximately 123,650 euros – “EUR”), to be determined by the Court according to its own discretion. 54. The Government did not offer any comments on the above claim. 55. The Court, having regard to the medical evidence adduced (see paragraphs 2 1 -2 2 above), accepts that the applicant must have suffered some non-pecuniary damage as a result of the matter found to constitute violations of the Convention. Making an assessment on an equitable basis it awards the applicant EUR 7,000. B. Costs and expenses 56. The applicant further sought the reimbursement of legal costs and expenses, totalling NOK 148,107.75, in respect of the following items: (a) NOK 125,781.25 (approximately EUR 15,500 ) for his lawyer's work (125 hours at a rate of NOK 805 per hour, plus 25% value added tax- “VAT”) in the proceedings before the Court; (b) NOK 18,489 (approximately EUR 2,300) which he had reimbursed to the Norwegian legal aid authorities in respect of legal aid received in the national proceedings; (c) NOK 3,475 for medical expenses; (d) NOK 3,622.50 for a psychiatric opinion in connection with his application to the Court. 57. As regards item (a) the Government were of the view that the number of hours claimed was excessive and should be reduced by 50%. As to items (b), (c) and (d) they did not make any comments. 58. According to the Court's case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. As regards item (a) the Court notes that only parts of the pleadings of the applicant's lawyer related to the complaints in respect of which the Court has found violations of the Convention. It finds it reasonable to award EUR 7,500 in respect of this item. As to item (b), the Court is satisfied that parts of these costs were necessarily incurred in order to prevent or obtain redress for the matter found to constitute violations of the Convention and awards EUR 1,000. As to items (c) and (d) (altogether around EUR 865), the Court notes that the former item was substantiated in part whereas the latter item was substantiated in full; it finds it reasonable to award EUR 700 for these two items. C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that that the impugned passage from the High Court judgment had not been sufficiently justified in the circumstances and had been disproportionate to the aims pursued. It was in particular not apparent why the High Court had mentioned that abuse might have occurred, thus confirming a suspicion of its own that the applicant had committed a serious crime, but had decided not to go any further into the matter. In the Court’s opinion, that court should either have dealt with the issue of sexual abuse fully (i.e. by examining evidence and coming to a reasoned conclusion) or left it to one side. Such an authoritative judicial decision concerning his conduct had stigmatised the applicant, had had a major impact on his honour and reputation and prejudiced his private and family life.