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W BORGARTING COTJRT OF APPEAL

Doc.26

EFTA Court - Registry - 1, rue de Fort Thtingen L-1499 Luxembourg Luxembourg

Your reierence Our reference

24-05963 5ASD-BORG1O1 271A6D024

Request for advisory opinion

In accordance with Section 5 1a of the Norwegian Courts of Justice Act (lov om domstolene) and

Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance

Authority and a Court of Justlce, Borgarting Court of Appeal (Borgarting lagmannsre,tt) hereby

requests an advisory opinion from the EFTA Court in case no. 24-059635ASD-BORG/O1-

In this referral letter, the parties have been anonymised; read more on this in section I below' The

parties in the appealbefore the court of appeal are as follows:

Appellant: A

Counsel Advocate Nina Lando lrgens, repr. by Trainee Advocate Emilie

Bergum Larsen Help Forsikring AS Postboks 1870 Vika 0124 Oslo

Respondent:

Counsel: Advocate Harald Grape, repr. by Trainee Advocate Torbjorn Engebretsen

Moldestad Advokaffirmaet Drevland & Grape DA Postboks 6664 St. Olavs Plass 0129 Oslo

The case before the court of appeal concerns a dispute under the Norwegian Act relating to Children

and parents ("the Children Aci;;. The parties share parental responsibility for their joint child, C, and

the child has its permanent residence with its mother, A. A wants to relocate to Denmark with C, to

find employmeni and start a family there, with her new partner. C's father, B, has not consented to the

move. [n accordance with the Children Act, A must, in order to relocate to Denmark with C, initiate

legal action against B, requesting that the court consent to the relocation. This is a different rule to the

on-e that applies when parents relocate with children within Norway. In domestic relocations, the

parent wiitr whom ttre ctritA has its permanent residence, may relocate with the child without the

consent of the other parent sharing parental responsibility, or a cout't, being required.

A has initiated legal action, requesting the coutt's consent to her relocation to Denmark with the child,

Date

B

Illailing address Postboks 2l 07 Vika 0125 Oslo

Visiting address Keyscrs gate 13, 0165 Oslo

Dir€ctory +4? 21 55 80 00

Executive oflic€r Synne Mari Dubniczky Abelsen Telephone lnterneVe-mail

h$p : /domstol. no/boreanin g

[email protected]

Bank acct. Org. no. 9267213s6

Service hours 08:00-15:45

t l5:00)

Frx

I

C. The main question before the court of appeal is whether such consent is to be given. This context

gives rise to a question of whether the Children Act's differentiation between relocating with children

abroad to an EEA State and relocating with children within Norway is in conflict with EEA law.

The referral letter has been prepared in English. The Norwegian statutory provisions referenced in the

referral letter have been translated into English, and have, in addition, been included in the original

language in Annex I to the refenal letter.

Freedom of information and the need for anonymisation of personal information in the referral letter and other case documents

The case before Borgarting Court of Appeal concerns a dispute under the Norwegian Act relating to

Children and Parents (Children Act).

Hearings in this type of case will not normally be open to the public, in accordance with Norwegian

law, cf. Section 125 (2) of the Courts of Justice Act. However, in special circumstances, the court may

nevertheless decide that all or parts of the hearings shall be open to the public. Court decisions are

public, insofar as there is no prohibition against publication, cf. Section 14-3 (l) of the Norwegian

Dispute Act. In cases pursuant to the Children Act, rulings may only be disclosed to the public in

redacted form, cf. Section 130 (3) of the courts of Justice Act. The public's right of access to key

documents, beyond court records and court decisions, do not apply in such cases, cf. Section I 4-4 ( I ) (b) of the Dispute Act. lf special grounds exist, the court may nevertheless grant access, cf. Section 14-

4 (1), second sentence.

In connection with this referral to the EFTA Courts, the parties agree that considerations of privacy for

the parties and the child have been sufficiently taken into account in the preparation ofthis referral

letter, among other things by not including the names of the parties and the child, and by not including

detailed information about addresses and names of witnesses. The court of appealalso agrees.

On this basis, the names of the parties and the child have been anonymised in this referral letter, and

they are identified as A (mother), B (father) and C (child), respectively.

The parties and the courl of appeal understand that the referral letter and the information included in it willbe publicly available, and have no objections to this. The parties and the court of appealalso do

not have any objections to oralproceedings, if relevant, in the EFTA Court being open to the public.

However, we request that the EFTA Coun please maintain the need for anonymity that the parties and

the child have.

The names and addresses of the parties have been included in Annex 2 to the referral leffer. This is for

the information of the EFTA Court only, so that the court will know who the parties to the case are.

This annex must not be made available to any party outside of the court's staff.

2 Brief summary of the facts of the case

Parties A and B live in Oslo. They lived together from 2015. Theirjoint child, C, was born in 2016.

The cohabitant relationship ended in2022 with A moving out with C, to another home in the same

district of Oslo.

A is originally from a third country outside of Europe, but moved to Norway ten years ago and is a

Norwegian national. B was born in Norway and is a Norwegian national'

A and B have, since C was born, shared parental responsibility. In accordance with an agreement

befween A and B, C has, since the breakdown of the parents' relationship in2022, had their permanent

residence with A.

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Since 2022,4 has had a partner, who lives in Denmark. This partner has two children of his own, who

live with him half the time. A now wants to relocate to Denmark with C. In Denmark, A wants to live

with her partner and start a family with him.

A also wants to find employment in Denmark. A is currently employed in a multi-national company,

which has offices and operations in Norway and Denmark, as well as other countries. A is currently

employed in the Norwegian part of the operations, and she has her place of work in Oslo.

A's employer has offered hei the opportunity to continue in the same role with her place of work in

Denmaik, iransfening her employmlnt to the Danish part of the operations' A plans to accept this

offer if she is permitted to move to Denmark with C.

A filed a claim with Oslo District Court on 16 June 2A23,withthe claim that C have their place of

residence with A and have contact with B as determined at the court's discretion, as well as the claim

that A be permitted to relocate to Denmark with C. A also filed a claim for an interim decision

permitting her to relocate to Denmark with C until a final ruling has been made in the case. B

contestedlhe claim and submitted a claim that A not be permitted to relocate to Denmark with C, and

for B to have contact with C 50 percent of the time.

The case before Oslo District Court did not include parental responsibility, as the parties agreed that

this would be joint. The parties also agreed that C would have her place of residence with A. A's claim

for a judgment to establisli ttre child's place of residence was therefore not maintained, and the district

court did not include this issue in its adjudication. As part of the case preparations, the district court appointed Specialist Psychologist Olav H-

eenAitsly expert witness. Bendiksby evaluated the case, and his evaluation included interview with

the child. The-district court held a mediation meeting on 1 I August2023, but the parties could not

agree on a final agreement.

The district court held main proceedings on 14 February 2024. On27 February 2a24, the district court

rendered a judgment and issued an ordir with the following conclusion (translated and anonymised):

Both in the main case and in the interim decision until afinal and enforceableitdgement is

available:

l. A is not permitted to relocate io Denmark with C, born lVn/2016.

2. C, born xxlxxl20l6,shall have contact with their father, B, as follows:

- The father shall have contact alternate weekends, Friday-Sunday, in even-numbered

weeks - The father shall have contact with C alternate Wednesday afternoons. The father

shall pick C up from school and drop them off at the mother's home no later than

18:30. - C shall spend alternate autumn school breaks with their mother and father. In2024,

C shall spend their autumn break with their mother'

- C shallspend alternate winter school breaks with their mother and father. Ln2024,C

shall spend their winter break with their father.

- C stratt spend alternate Christmas school breaks with their mother and father. In

2A24, C shall spend their Christmas break with their mother'

- C shall spend alternate Easter school breaks with their mother and father' Ln2024'C

shall spend their Easter break with their mother'

- C siratt spend a total of 4 weeks with their father during the summer school break

and a totai of 4 weeks with their mother during the summer school break.

3. Costs are not awarded.

Borgarting Cou rt of APPeal 24-059635ASD-BORG/o1

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In a notice of appeal dated26 March 2024, A has appealed the district courl's judgment to Borgarting

Court of Appeal. In the appeal, A maintains the claim for the court's consent to her relocating to

Denmark with C, and for contact between C and B to de determined at the court's discretion. B has

submitted a respondent's notice, requesting that the appeal be dismissed.

As part ofpreparations for appellate proceedings, the court ofappeal has decided to request an

advisory opinion from the EFTA Court concerning the questions related to EEA law raised in this

case.

3 Relevant Norwegian law

Chapters 5 and 6 of the Act relating to Children and Parents of 8 April l98l no. 1 ("the Children Act") (lov om barn ogforeldre av 8. April 1981 nr. 7 (barneloven)) regulate matters related to parental

responsibility, place of residence and contact.

Parental responsibility concerns the authorify to make decisions for the child in important personal

matters. The person or persons with parental responsibility are also the child's guardians, cf. Section

16 of the Guardianship Act. Parental responsibility also covers decisions relating to such things as

medical treatment, a right to aceess medical information about the child, registering the child as a

member of a religious community, and consent to adoption.

The norm is for parents who live together when the child is born to have joint parental responsibility, cf. Section 35 of the Children Act. When parents with joint parental responsibility separate, one parent

may initiate legal action to request sole parental responsibility. In the present case, however, the

parents have agreed onjoint parental responsibility.

As for the child's place of residence, Sections 36 and 37 of the Children Act read as follows:

Seclion 36. The child's place of residence (custody)

The parents may jointly decide that the child shall reside either with both of them (joint custody) or with one of them (sole custody).

If the parents fail to agree, the court must decide that one of the parents shall have custody of the child. When there are special reasons for doing so, the court may nonetheless decide that both parents shallhave custody of the child.

Section 37. Decisions that may be taken by the personwith custody of the child

If the parents have joint parentalresponsibility, but only one of the parents has custody of the

child, the other parent may not object to the parent with sole custody of the child making decisions concerning important aspects of the child's care, such as the question of whether the

child shall attend a day-care centre, where in Norway the child shall live and other major decisions concerning everyday life.

For a child to have their "place of residence", as defined by the Children Act, with one parent,

therefore both means that the child is presumed to actually reside with this parent, and that this parent

has the authority to make some important decisions concerning the child that are not part of the

parental responsibility. From Section 37 it expressly follows that a custodial parent can make decisions

concerning where the child is to live - i.e concerning relocation. One practical consequence of this is

that if the non-custodial parent wants to prevent the custodial parent from relocating with the child,

this parent must initiate legal action claiming a change in the child's place of residence or request that

the court issue an interim order to this effect. When Section 37 is interpreted in context of Section 40,

which is included below, it becomes clear that the right of the custodial parent to relocate with the

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child without the other parent's consent in cases where the parents have joint parental responsibility,

only applies to relocations within Norway.

For relocations, both within Norway and abroad, a duty to notif and a duty to request mediation in

accordance with Section 42a of the Children Act apply. The provision reads:

Section 42 a. Notification of and mediation prior to relocation

If one of the parents intends to relocate within Norway or abroad, and access has been

determined by agreement or decision, the parent who intends to move shall noti! the other

parent no later than three months prior to relocation.

If the parents disagree regarding relocation, the parent who intends to relocate with the child

must request mediation pursuant to section 51.

Furthermore, it follows from Section 5l (a) of the Children Acl that parents who disagree on a child's

relocation must attend mediation.

In the present case, the parties agree that C has their place of residence with A. It has been established

that the parties have been in compliance with the duty to notifo and the duty to attend mediation'

Section 40 of the Children Act lays down special rules for relocations abroad:

Section 40. Children relocating or staying abroad

If one of the parents has sole parental responsibility, the other parent may not object to the

child relocating abroad.

If the parents have joint parental responsibility, both of them rnust consent to the child

relocating or staying abroad other than for short trips; see section 41. This also applies in cases

where anlgreed stay is prolonged or altered, for instance where the child is left behind abroad.

Children who have reached the age of l2 must consent to any decision according to the first

and second paragraphs concerning relocating or staying abroad without a parent with parental

responsibility.

lf the parents disagree as to who shall have parental responsibility, or on international

reloeation or custody, the child must not relocate abroad until the matter has been decided.

From this provision it follows that, in cases where the parents have joint parental responsibility and the

non-custodial parent does not consent to a relocation abroad, the custodial parent cannot relocate

abroad with thl child without the court's permission. Such permission may only be granted by the

parent wanting to relocate initiating legal action and the court deciding the issue by rendering a

judgment. While the court may also issue an interim order concerning relocation abroad pursuant to -S""tion

60 of the Children Act, this rarely happens in practice, and it will in any case only be

temporary, until a final judgment has been rendered in the case.

Under Section 48 (l) of the Children Act, decisions on parentalresponsibility, internationalrelocation,

custody and access, and procedure in such matters, shall "first and foremost" have regard for the best

interesis of the child. This provision must be seen in the context of Article 104 (2) of the Norwegian

Constitution, which providis that "for actions and decisions that affect children, the best interests of the child shall be a fundamental consideration." From the preparatory works to the Act and Supreme

Court practices, it follows that the court, under Section 48 (1) of the Children Act, must perform an

overali assessment of the specific circumstances, taking into account the best interests of the child' In a

Borgarting Court of Appeal 24-059635ASD-BORGlol

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case to decide whether a mother would be permitted to relocate to ltaly with her two children, HR-

2019-1230-A, the Supreme Court summarised the issue as follows (paragraph 39, translated into

English):

The decision as to what is in the child's best interest will, based on the above, have to be made

on the basis of which of the alternatives available would best support the children's childhoods and development, following a specific assessment of all relevant factors in the case.

In that case, the Supreme Court performed a specific assessment of whether the children's interest

would be better served by living with their mother in Italy or if it would be better for the children to continue living with her in Norway (paragraph 53 et seq).

The court of appeal's clear assessment - and this has also not been contested by the parties - that if the

provisions of the Children Act were to be applied in the present case, the court must perform a similar specific assessment of whether it will be better for C to relocate to Denmark with A, or if it will be

better for C and A to remain in Oslo. A's ctaim can only succeed if the court of appeal concludes that

it would be better for C to relocate to Denmark with A.

Finally, the court of appeal refers to the Agreement on the European Economic Area (EEA Agreement) having been implemented as Norwegian law pursuant to Section I of the Act Relating to the Implementation into Norwegian Law the Main Part of the Agreement on the European Economic

Area, etc. of 27 November 1992 no. 109 (EEA Act). Under Section 2 of the EEA Act, the EEA Agreement is a step above Norwegian general Acts. In case of conflict between the provisions of the

Children Act and the EEA Agreement, the EEA Agreement therefore takes precedence.

4 Reasoning behind requesting an advisory opinion

The account in the above sections show that the Children Act provides for a different rule to be

applied to relocations abroad, including to EEA states, than to relocations within Norway. In cases

where the parents have joint parental responsibility, a parent who is the custodial parent according to the Children Act, has a duty to notif the other and to attend mediation before the relocation can take

place, regardless of whether the relocation is domestic or international. Once these duties have been

fulfilled, the custodial parent has the right, even if the other parent does not consent, to relocate with the child within Norway, regardless of the travel distance. In cases involving a relocation abroad, the

custodial parent must initiate legal action, requesting the court to assess whether the relocation abroad

with the custodial parent will be in the best interest of the child, or whether it will be in the best

interest of the child to remain in Norway with the custodial parent. The custodial parent will only be

able to move abroad with the child if the court grants permission.

The central question of this case is whether this difference in treatment, befween situations where the

relocation is to other EEA states and situations where the relocation is within Norway, is in conflict with the EEA Agreement.

One major consideration is whether the EEA Agreement and secondary legislation, especially

Directive 2004138/EC of the European Parliament and of the Coun cil of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the tenitory of the

Member States, which grants to EEA citizens the extensive right to move and reside freely, and to take

up employment, within the tenitory of the EEA states, is to be interpreted to also extend to national

provisions regulating a parent's right to relocate to another EEA state with a minor child without the

other parent's consent.

More specifically, the court of appeal is requesting that the EFTA Court consider whether the

difference in treatment established by the Norwegian Children Act is compatible with A's rights, and

potentially, the child's rights, pursuant to Directive 20041381EC. In particular, reference is made to

Article 4 on the right of exit, as well as the right of residence pursuant to Article 7. The question is

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whether it is compatible with EEA law to require permission from a court when the relocation is to

another EEA state, and such permission is not required for domestic relocations. Another question is

whether EEA law would prevent the national court from exclusively basing its assessment on whether

the relocation would be in the child's best interest, and whether EEA law would require the court to

provide its reasoning if a claim for relocating with the child to another EEA state does not succeed.

The court of appeal deems it appropriate to phrase its question to the EFTA Court more openly. The

request is for th-e EFTA Court to give its opinion on whether, and if so, under which circumstances, a

rule where permission llom a court is required for relocations to another EEA state, would be in line

with the Directive.

The second question the court of appeal would like the EFTA Court to give its opinion on, is whether

the difference in treatment is compatible with the right to freedom of movement for workers, cf.

Article 28 of the EEA Agreement, when the relocating parent is also planning to take up employment

in the EEA state where she plans to relocate with the child. In this context, too, the request is for the

EFTA Court to give its opinion on whether, and if so, under which circumstances, the arrangement

where permission from a court is required for relocations to another EEA state, when no such

permission is required for domestic relocations, is in line with EEA law.

A third question would be whether the difference in treatment could be in conflict with other

provisions of the EEA Agreement or secondary EEA law. The court of appeal urges the EFTA Coutt

io give its opinion on this as wetl, even though it has not been phrased as a separate question.

From what the court of appeal is aware, there is limited precedent from the European Court of Justice

(ECJ) to shed light on the specific issues raised in this refenalletter. The ECJ's judgment in case C-

454119 appears io be relevant. This ruling, however, is based on provisions in Article 21 of the Treaty

on the Functioning of the European Union (TFEU), equivalents to which are not present in the EEA

Agreement. The court of appeal is aware that the significance of this difference, as wellas which

rilhts established by articfe zt of the TFEU can also be deduced from Directive2A04l3SlEC and thus

n&ertheless are part of the EEA Agreement, already has been covered, to some degree, in EFTA

Court practice.

One question, which the parties to this case touch on in their submissions, is whether the difference in

treatment outlined by the Children Act is necessary on grounds of public policy, public security or

public health, cf. Article 27 of Directive2004l38/EC and Article 28 (3) of the EEA Agreement's Main

Part, or whether the difference in treatment can be justified with reference to the non-statutory

principle of overriding reasons in the public interest, In this context, the court of appeal presumes it

could-be of interest to the EFTA Court to clarifo which considerations have been emphasised in the

preparatory works to the relevant provisions of the Children Act in order to explain the reason for a

different rul" fo. international relocations. The court of appeal will therefore briefly summarise these.

The primary purpose of the provisions of the Children Act concerning relocations within Norway and

abroad is to facilitate for the child being able to maintain contact with both parents. Contact with both

parents is presumed to be in the child's best interest. Considerations of the child's best interest is a

iundamenial consideration in actions involving children under both Norwegian and international law,

cf. e.g. Article 3 of the (IN Convention on the Rights of the Child. The right to contact with both

pur.nt, is protected by Article 8 of the European Convention on Human Rights (ECHR), which has

been implemented into Norwegian law, cf. Section 2 of the Human Rights Act.

Section 8.5.1 .4 of the preparatory works in Prop. 102 LS (20141015) argue that the provisions

concerning relocationi abroad align wellwith the 1996 Hague Conventionr and preserves this

Convention's purpose. The Convention's primary purpose is to protect children in international

r Convention of 19 October 1996 on Jurisdiction, Applicable Larv, Recognition, Enforcement and Co-operation in Respect of

Parcntal Responsibiliry and Measures for the Protcction of Children

Borgarting Court of ApPeal 24-0s9635ASD-BORGi0l

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situations. Among other things, the Convention aims to prevent conflict between the legal systems of different states in matters involving parental authority and protection measures for children, as well as

to establish cooperation in this area between states and between the states' competent authorities. The

preparatory works also point out that the provisions can help prevent child abduction. If a parent

relocates abroad with the child against Section 40 (l), second sentence, or (2), the other parent can

exercise their right using the provisions of the Child Abduction Act based on the 180 Hague

Conventionz and the Act Relating to the Recognition and Enforcement of Foreign Decisions

Concerning Custody of Children, etc. and on the Return of Children of I July 1980 no. 72 (Child Abduction Act).

The court does not find these interpretations ofEEA law clear-cut, and has therefore decided to

request an advisory opinion from the EFTA Courl.

5 The submissions of the parties on EEA law

5.1 A's submissions, in brief A submits that the rule laid down by the Children Act, on which the district court has based its

conclusion, constitutes a disproportionate intervention that violates her freedoms under the EEA Agreement. Section 40 of the Children Act establishes a clear difference in treatment between

relocations abroad to an EEA state, compared to domestic relocations. This is in conflict both with Directive 20041381F;C and the right to freedom of movement for workers, cf. Article 28 of the EEA

Agreement.

In A's view, there are no relevant and satisfactory grounds on which to justifo such difference in

treatment. The rule established by the Children Act is disproportionate, and this case is a clear

example of that. A wants to relocate with C to Denmark, to a city that is significantly shorter, in terms

of travel distance, from Oslo than many other places in Norway, to which she and the child freely

could have moved. Contact with B will not be made significantly more difficult by A living in Denmark with C. Furthermore, a well-functioning cooperation has been established between the

competent authorities of the two states.

Based on this, A believes that the provisions of the Children Act are incompatible with EEA law.

Insofar as the requirement of permission to relocate, either from the court or from the other parent, in

itself is not in conflict with EEA law, EEA law must, in any event, impose requirements on the court's

assessment of whether to grant such permission, as well as on the court's reasoning for withholding permission.

5.2 B's submissions, in brief B contests the idea that the provisions of the Children Act are in conflict with EEA law

Article 4 of Directive2004l38lEC requires a right of exit from a member state's tenitory to travelto another member state. It is not contested that A and C have the right to travel to Denmark, e.g. on

holiday. Relocating to another state is not covered by this provision.

Article 7 (l) (d), cf. Article 7 (l) (a), of Directive 20041381EC grants right of residence, even for family members.

Furthermore, it has been cited that Article 28 of the EEA Agreement grants the right of free movement

for workers between EEA states, for the purposes of taking up employment and relocating to another

EEA state.

These freedoms, however, only apply if considerations of public policy, public security or public health

2 Convention of 25 Ostober 1980 on the Civit Aspects of [nternational Child Abduction

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indicate no restrictions should apply, cf. Article 28 (3) of the EEA Agreement. Considerations of public health indicate that it must be possible to impose restrictions on the right of one parent to

ielocate to a different country with a child when the other parent has not consented to the relocation'

The absence ofsuch restrictions could subject non-custodial parents to considerable psychological

stress related to concerns for what the other parent might do, and limit or rob the parent in question's

oppoftunity to have contact with the child. Iicannot be left up to one parent alone to determine which

country the child is to reside in, allowing that parent to relocate with the child at their discretion.

Exceptions from freedom of movement can also be justified by other objective and relevant general

considerations, provided they are not discriminatory. The provisions of the Children Act, however, are

not discriminatory; they are ih" ru*. for everyone, regardless of nationality. There are central

considerations of public policy behind Section 40 of the Children Act, as well as the arrangement

where the custodial parent, if ihe other does not consent to a relocation abroad, must initiate legal

action to get the court's agreement that a relocation abroad would be in the child's best interest.

Especially important are considerations of not splitting up a family, considerations of as much close

family contact as possible, and, not least, considerations of the child'

The restriction is necessary and not too invasive, considering the purpose one seeks to achieve. It is

pointed out that the only way to preserve considerations of family life and the best interests of the

child is to establish a rule that prlvents one parents from relocating abroad with the child without the

other parent's consent.

An interpretation of EEA law that entails this particular provision in the Norwegian Children Act be

set aside, will constitute a violation of the child C's and B's right to a family life pursuant to Article 8

of the European Convention on Human Rights (ECHR). Such an interpretation of EEA law in the

present case would split the famity up and weaken the relationship between father and child.

In case of a conflict between EEA law and the ECHR, the principles of the ECHR should take

precedence. It is pointed out that the ECHR is an older treaty and that the EEA Agreement in any

fvent must be interpreted in such a way that it does not violate the member states' human rights

commitments under the ECHR.

6 Request for urgent consideration ofthe case

Considerations of the child C, which this case concerns, indicates that the hearing of the case is urgent

ln this context, we refer to the case's total process time before the courts. The aetion was initiated

before Oslo District Court on 1 6 June 2023. The district court rendered its judgment on 27 February

2A24.This judgment was then appealed to Borgarting Court of Appeal. Once the EFTI Court's

opinion is ready, one must "*p"it

a further three months until the court of appeal is able to hold

proceedings and render its judgment. The total process time - which for the child C entails that the

question olth". relocating *ith th"i. mother to Denmark remains unsettled - is already long and

should be kept as brief as possible.

It follows from Section 59 of the Children Act, which concerns court proceedings, that the case,

pursuant to Section 59 of the Chitdren Act, should be expedited "as far as possible". Furthermore, 'section

4g of the Children Act provides that procedure first and foremost shall have regard for the best

interests of the child. Article l0Z t2) of the Constitution provides that the best interests of the child

shall be a fundamental consideration in all actions involving children. In line with these provisions, the

court of appeal is obligated to ensure expeditious progress in cases involving, inter alia, children's

place of residence. In-practice, this means that cases pursuant to the Children Act are given priority

over other types ofcases when proceedings are scheduled.

Article 6 (l) of the European Convention on Human Rights (ECHR) on the right to a hearing with a

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,,reasonable time", compared with the right to a family life under Article 8, also underpins the fact that

the courts should strive to expedite the hearing of cases concerning matters involving children, see e.g.

the judgment of the European Court of Human Rights in case 32842796 (Nuutinen v. Finland),

paragraph 10.

We also refer to the duty to protect the rights of the child pursuant to EU law, cf. Article 24 of the

Charter of Fundamental Rights of the European Union and Article 3 (3) of the TFEU.

On this basis, we ask that the EFTA Court expedite the hearing of this case within the framework of an

ordinary referral procedure.

7 Questions concerning interpretation to the EF'TA Court

Based on the facts and legal assumptions in this case, and taking into consideration that the EFTA

Court does not decide on questionsconcerning facts nor settle disputes concerning interpretation or

application of national law, Borgarting Court of Appeal requests that the EFTA Court provide an

advisory opinion on the following questions:

Firstly, is it, and if so, under which circumstances is it, compatible with the rights of the parents and

the chita under Directive2004l38/EC that national legislation on the retationship between a child and

its parents stipulates that a custodial parent, in situations where the parents have joint parental

responsibility and the non-custodial parent does not consent to the relocation, cannot relocate to

unoth". EEA state with the child without initiating legal action and getting the court's permission to

relocate, when the same parent would have the right to relocate domestically with the child without

obtaining the non-custodiat parent's consent or permission from the court?

Secondly, is it, and if so, under which circumstances is it, compatible with A*icle 28 of the EEA

Agreement that national legislation on the relationship between a child and its parents stipulates that a

cu-stodial parent, in situations where the parents have joint parental responsibility and the non-

custodial parent does not consent to the relocation, cannot relocate to another EEA state with the child

to take upemployment there without initiating legal action and getting the court's permission to

relocate, when the same parent would have the right to relocate domestically with the child without

obtaining the non-custodial parent's consent or permission from the court?

Borgarting Court of Appeal

-lr.a : ,l

.1 +Henrik Westborg Smiseth

Court ofAppeal Judge l;

Borgarting Court of APPeal 24-0s9635ASD-BORGl0r

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