Apr 7, 2025
Contact rights after care takeover – legal frameworks and the best interest of the child
When child welfare takes over the care of a child, the question arises about visitation between the child and the parents. The right to visitation is both a right for the child and the parents, grounded in both human rights and underlying values. At the same time, the visitation must be designed in a way that is in the best interests of the child and meets the child's need for protection and development.
Legal basis for the right to visitation
As a general rule, children and parents have the right to visitation and contact with each other, even when the child is taken into the care of child welfare. This is stated in the Child Welfare Act § 7-1, the UN Convention on the Rights of the Child Article 9 No. 3, and implicitly in the European Convention on Human Rights (ECHR) Article 8.
The Convention on the Rights of the Child Article 9 No. 3 states that a child's right to contact with their parents is a human right for the child, but with the reservation that this right only applies if it is not contrary to the child's best interests:
"Parties shall respect the right of a child separated from one or both parents to maintain personal relationships and direct contact with both parents regularly, unless this is contrary to the child's best interests."
ECHR Article 8 No. 1 regarding the right to respect for family life includes the protection of the right to personal contact between children and parents, even when the child is under public care.
The European Court of Human Rights (ECHR) has stated in several cases:
"The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care."
The right to visitation is based on the value that the relationship between children and parents should not cease even though they do not live together. It is also based on the biological principle.
Regulating visitation as an interference in family life
For the Child Welfare Tribunal to regulate visitation, a care order must be made. Once such a decision is made, the tribunal should establish visitation between the child and parents. The tribunal can set conditions for the visitation, including deciding that supervision be conducted during the visitation.
The regulation of visitation is considered an additional interference with the right to respect for family life alongside the care order. The overriding conditions for interference in family life in the form of visitation regulation are the same as for other interferences. Such interference must be in accordance with the law, have a legitimate aim, and be necessary (proportional) for specific purposes.
In recent years, ECHR has dealt with several cases that wholly or partly concern the question of visitation and has developed quite clear guidelines on how ECHR should be understood and practiced. In all cases, it was agreed that the Norwegian Child Welfare Act met the legal requirements and that the state had legitimate reasons for interfering in family life, namely to protect the child's rights and freedoms. The crucial point has been whether the interference was proportional.
Determination of visitation – a concrete assessment
It is explicitly stated in the Child Welfare Act that the tribunal's decision should be based on a concrete assessment. The law highlights the main considerations that should guide the determination of visitation. Considerations should include:
The child's need for protection
The child's development
The ability of the child and parents to maintain and strengthen the bonds between them
Visitation should be in the best interests of the child.
No standard norm
That visitation should be determined based on the specific circumstances of the case, and that no standard norm can be established, has long been the correct legal standpoint. The Supreme Court has stated in HR-2020-662-S:
"As I have emphasized, it is not possible, based on Norwegian legal practice, to establish a sort of standard norm for how much visitation should be set. This is in line with ECHR Article 8. Decisions from the ECHR show that a concrete assessment must be made, incorporating the considerations I have pointed out."
After the law of 1992, a practice had developed over time whereby the county tribunal/courts explicitly set minimum visitation, and that child welfare services could determine more extensive visitation if the circumstances warranted it. A survey from 2020 showed that "practice as it is reflected in the decisions tends towards a template determination of a minimum, which neither reflects the actual visitation competence of the parents nor the child's particular needs for protection at the time of the decision."
This has, however, changed. A survey conducted by Alvik on practices after March 2020, that is, after the Supreme Court issued its judgments in plenary, shows that both county tribunals and courts of appeal conduct more concrete and thorough assessments in visitation cases. The study also shows that there is generally an increase in determined visitation between children and parents, and the extent varies significantly.
The goal of reunification
Both under the Child Welfare Act and ECHR, the overarching objective is to achieve reunification between children and parents. Therefore, a care takeover is initially temporary. The state has a positive duty to actively work to maintain the relationship between children and parents and to reunite them. In this context, visitation can be an essential tool.
ECHR considers that the goal of reunification will also generally be in the child’s best interests. Nevertheless, the goal can be deviated under three different conditions:
If the parents are particularly unfit – "particularly unfit"
If maintaining the goal of reunification can harm the child's health and development
If a significant amount of time has passed, so that the child’s need for stability in a potential new family must be respected
As long as the goal of reunification remains, the state must facilitate this. However, in the concrete assessment of visitation, one must consider the background for and purpose of the care takeover and what time horizon is being worked with in the case. Visitation should not be determined in a way that counters what child welfare services aim to achieve with the care takeover.
Conditions of the child
If decisions are to be made based on the best interests of the child, conditions pertaining to the child in question must be central to the assessment. The need for protection may relate to factors both in the parents and in how they have exercised care, and conditions in the child. A concrete assessment should be made in each individual case.
In assessing the child's needs, the following must be considered:
The child's age
Resources and resilience
Problems, illness and vulnerability
Reactions to the separation from the parents
Reactions – or expected reactions – to the visitation
Ensuring a safe and good relationship with the foster home is also an important consideration. The Supreme Court refers to the fact that foster parents have an important task in facilitating visitation and assuring the child after visitation has taken place.
The child’s own views should also be a central factor in these cases. Visitation directly affects the child's daily life, and thus it is important that the child has the opportunity to express their views on this and participate in shaping the more detailed content, such as time, place, and who should be present, etc.
Conditions of the parents
The conditions and shortcomings that lead to the care being taken over are clearly relevant to the decision on the issue of visitation. However, these are two different issues, and even if the parents cannot fully care for the child, the issue of visitation might be viewed differently.
Neglect can manifest in various ways. Even if the parents are immature, have a mental disability or are physically ill, and for that reason cannot provide adequate care for the child, it may still be beneficial for the child to have visitation with them. Economic problems, poor living conditions, a lack of network, and similar issues are elements in some cases. These are not factors in themselves that indicate limited visitation, but it remains that the visitation should be carried out under safe conditions.
Substance abuse and/or mental disorders in the parents are more likely to indicate restrictions in visitation. In cases of danger of abuse or sexual assault where the child is afraid to meet the parents, visitation can only occur if it can be conducted in a manner that assures the child’s safety.
Attachment and experiences from previous visitation
When the Child Welfare Tribunal makes its first decision on care takeover, there is little empirical basis on which to build visitation. Exceptions apply if the child has been voluntarily placed for some time before the care takeover. When the case goes to court, time will pass and experiences will be built that will have implications for the decision.
The child's reactions to the visitation – or expected reactions – must clearly be a central consideration in the discretionary assessment of the extent. A question that can be asked is who the informants are regarding the child's reactions. Foster parents clearly have an important role here, but the Supreme Court emphasizes that authorities "should be cautious, depending on the circumstances, in basing decisions solely on information from foster parents."
Visitation that supports positive development in the child will be beneficial, while visitation that detracts from or hinders positive development must be limited.
Highly restricted or denied visitation
Only when there are strong and specific reasons can the Child Welfare Tribunal decide that visitation should be highly restricted or cease completely. Denial of visitation must be necessary for the purpose of protecting the child. The ECHR says it like this in Case of Strand Lobben and Others v. Norway:
"Such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests."
This means that the legal presumption of a right to visitation implies that a permanent or long-term care takeover is not in itself sufficient to deny visitation.
In addition to the risk of violence, sexual abuse, parents’ substance behavior, and issues related to parents’ mental disorders, a genuine kidnapping threat is also a legitimate reason to deny visitation.
Visitation under supervision
Supervision is usually an intermediate solution in cases where it is found that the considerations are not strong enough to deny visitation, but where control measures are nevertheless necessary during visitation. The Child Welfare Act now authorizes the tribunal to set conditions for visitation, including determining that supervision be conducted during visitation.
Supervision is a rather stringent condition and constitutes further interference in family life, both for the child and the parents. It involves surveillance that can inhibit the natural visitation between children and parents. The requirement to establish supervision is that it is necessary in the specific case, and it must have a clearly defined purpose.
According to ECHR practice, permanent supervision should only be imposed if there are "special grounds." Supervision should be due to something pertaining to the person executing the visitation and/or the situation around the visitation that makes it unsafe for the child to be alone with the person.
Other forms of contact
In addition to direct visitation, depending on the child’s age, it may be appropriate for children and parents to have other forms of contact. Traditionally, correspondence and telephone contact have been separate topics. The increasing use of mobile phones and computers, even among very young children, enables various forms of contact through social media.
In the Child Welfare Act, there is now a separate provision allowing the tribunal to set limits on other contact between children and parents under the same conditions as physical visitation. Both the values underlying the right to visitation and the more specific factors apply both to the assessment of direct physical visitation and other forms of contact.
Telephone and internet contact must be regulated according to the same criteria as ordinary physical visitation, with requirements for justification, legitimate purpose, proportionality, and with the best interests of the child as a decisive consideration.
Visitation with others than the parents
Visitation for others who have cared for, or whom the child is closely attached to
The right to respect for family life primarily includes the relationship between children and parents, but other close relationships are also protected. Initially, it is only children and parents who have a direct right to visitation with each other under the law. However, certain other relationships may require the Child Welfare Tribunal to address the question of the right to visitation with the child after a specific assessment.
This primarily applies to people who have cared for the child before the care takeover. These individuals can require the Child Welfare Tribunal to decide whether they should have the right to visitation with the child and how extensive the visitation right should be.
Others who the child is closely attached to can require the tribunal to decide whether they should have the right to visitation with the child if one of two conditions is met:
One or both parents are deceased.
It is determined that the child and parents should not have visitation or very limited visitation.
Visitation and contact with siblings and other close relations
For many children, the relationship with siblings and grandparents is significant. The Child Welfare Act § 7-5 regulates the child's visitation and contact with siblings and other close relations. This provision is formulated as an obligation for child welfare services and not as a rights provision for the child or others.
Child welfare services should ensure that the child can "maintain and strengthen ties" to their siblings and other close relations through visitation and contact. Siblings include full, half, step, and adoptive siblings. Other close relations might include a step-parent or the cohabitant of the child's mother or father, possibly grandparents, aunts, uncles, or former foster parents.
The conditions for requiring child welfare services to have such an obligation to "ensure" are that both siblings and others must have had an established family life with the child, and they must have established close personal bonds with the child. Additionally, it is a requirement that visitation must be in the best interests of the child.
Visitation plan
After the Child Welfare Tribunal has made a decision on visitation, child welfare services are obliged to develop a more detailed plan for the visitation. This plan should be developed in cooperation with the parents, and the child has the right to participate in this context as well.
Children seem to be concerned with precisely the detailed implementation of the visitations, who is present, where they take place, and what is done during the visitations. The visitation plan should be regularly evaluated, and the purpose of using a plan as a tool rather than making decisions is to allow for flexible and well-adapted solutions.
A further aim of the provision is to highlight and emphasize the importance of follow-up on visitation matters done well. Child welfare services should facilitate successful visitations, and if they do not function well, adjustments must be made, or alternative solutions attempted. Thus, the answer to poorly functioning visitations is not necessarily to limit or cut visitation entirely.
Conclusion
The right to visitation is an important right for both children and parents, even after child welfare has taken over care. It is grounded in human rights and based on the value that the relationship between children and parents should not cease even though they do not live together. At the same time, visitation must be designed in a way that is in the child's best interest and meets the child’s need for protection and development.
Norwegian law has evolved in recent years, partly influenced by judgments from the ECHR, and visitation is now determined based on a more concrete and thorough assessment of each child's situation and needs. Standardized solutions have been abandoned in favor of a more individualized approach, in line with both the Child Welfare Act and international human rights.
