Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 24484/94

Per Söderbäck

against

Sweden

REPORT OF THE COMMISSION

(adopted on 22 October 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-28). . . . . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-24). . . . . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 25-28). . . . . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 29-47). . . . . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 29). . . . . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 30). . . . . . . . . . . . . . . . . . . . . . . .6

C. As regards Article 8 of the Convention

(paras. 31-47). . . . . . . . . . . . . . . . . . . . . .6

a. Whether there was an interference with the

applicant's rights under Article 8 para. 1

(paras. 32-37) . . . . . . . . . . . . . . . . . . .6

b. Whether the interference was justified under

Article 8 para. 2

(paras. 38-46) . . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 47). . . . . . . . . . . . . . . . . . . . . . . .9

DISSENTING OPINION OF MM J.-C. GEUS, H. DANELIUS,

D. SVÁBY, P. LORENZEN AND E. BIELIUNAS . . . . . . . . . . . . . . 10

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . 11

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Swedish citizen, born in 1957 and resident in

Stigtomta. He is represented before the Commission by Mr Roger Lindh,

a law student residing in Haninge.

3. The application is directed against Sweden. The respondent

Government were represented by their agent Mr Carl Henrik Ehrenkrona,

Ministry for Foreign Affairs.

4. The application concerns the decision by the Swedish courts to

allow the adoption of the applicant's daughter by her stepfather

without the applicant's consent. The applicant invokes Articles 6 and

8 of the Convention.

B. The proceedings

5. The application was introduced on 17 December 1991 and registered

on 28 June 1994.

6. On 29 November 1995 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits, limited to the complaint under Article 8 of the Convention.

7. The Government's observations were submitted on 5 March 1996

after an extension of the time-limit fixed for this purpose. The

applicant replied on 29 April 1996.

8. On 27 November 1996 the Commission declared admissible the

applicant's complaint under Article 8 of the Convention. It declared

inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 5 December 1996 and they were invited to submit such

further information or observations on the merits as they wished. The

Government informed the Commission on 18 December 1996 that they had

no further observations to submit in the case. The applicant submitted

further observations on 31 January 1997.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 22 October 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant met K.W. in 1980. They were friends but did not

have a steady relationship. On 19 September 1982 K.W. gave birth to

a daughter, M., of whom the applicant was the father. The applicant

visited K.W. and the child at the maternity ward on one occasion. He

further met M. at K.W.'s home a couple of times during the following

months. He also attended M.'s christening. During the spring of 1983,

the applicant once looked after M. for about an hour. No further

contacts took place between the applicant and his daughter in 1983, as

K.W. claimed that he was not sober and therefore found it inappropriate

that they met. The applicant, who felt obstructed by K.W., gave up his

attempts to see M. Certain problems the applicant encountered at work

and with alcohol also hindered his continued commitment to the

daughter.

17. In 1983 K.W. met M.W., whom she and M. moved in with in May 1983.

K.W. and M.W. married in January 1989.

18. In 1984 the applicant met A.H., who had a two year old son. They

started cohabiting in January 1985.

19. The applicant met his daughter once in 1984. He wished to see

her more often but K.W. allegedly opposed further contacts. However,

the applicant saw the daughter from time to time between 1984 and 1986

when he and A.H. took A.H.'s son to his childminder, who lived close

to M.'s childminder. The applicant further met M. in June 1986 when

she attended A.H.'s son's birthday party.

20. As, allegedly, K.W. refused the applicant access to M., the

applicant, in June 1987, contacted the social authorities in Nyköping

and asked for help in bringing about meetings between him and M. The

applicant and K.W. met at the social welfare office once in

November 1987 to discuss the matter. K.W. expressed the wish that the

applicant should not have access to his daughter yet. The responsible

social worker had some further contacts with the applicant and K.W.

separately in 1988, but no meetings took place between the applicant

and M.

21. In November 1988, M.W. applied to the District Court

(tingsrätten) of Nyköping for permission to adopt M. The applicant did

not consent to the adoption. In February 1989, he instead instituted

access proceedings against K.W. in the District Court. The court

requested the opinion of the Social Council (socialnämnden) of Nyköping

and adjourned the question of access pending the outcome of the

adoption proceedings.

22. The Council made an investigation during which it heard the

applicant, K.W. and M.W. In an opinion of 31 October 1989, the Council

concluded that an adoption was not in the child's best interests. It

considered that the applicant's relationship with A.H. and her son was

stable and noted, inter alia, that the applicant was permanently

employed as a bus driver since November 1987. Further noting that M.

did not know that M.W. was not her natural father and that K.W. and

M.W. did not intend to inform her until she got older, the Council made

the following conclusions:

(Translation)

"The investigators are of the opinion that [M.], like all

children, has a right to know her descent. It is also

important that she is informed as early as possible. Thus,

we do not share [K.W.'s] and [M.W.'s] opinion that it is

better for [M.] to wait. On the contrary, we believe that,

in all probability, it will be a traumatic experience for

[M.] to be told, in her teens or as an adult, that [M.W.]

is not her natural father. We also consider that [M.] has

a right to get to know her father and his family. We do

not share [K.W.'s] and [M.W.'s] fears that [M.] would

become distant from [M.W.], although it would be natural

for her to react in one way or another. However, we are of

the opinion that it could be beneficial for [M.] to get to

know her father and his family. Her feeling of belonging

to [M.W.] does not, for that reason, have to be changed and

[M.W.] will probably always be [M.'s] psychological

father."

23. The District Court held a hearing on 12 December 1989 during

which it heard the applicant and M.W. By decision of 22 December 1989,

the court granted M.W. permission to adopt M. The decision was taken

in accordance with Chapter 4, Section 6 of the Parental Code

(Föräldrabalken). The court gave the following reasons:

(Translation)

"The investigation in the case shows that [M.] since birth

has lived with [K.W.] and that [M.W.] has taken part in the

care of [M.] since she was eight months old. According to

the information received, [M.] sees [M.W.] as her father.

[The applicant] appears to have met [M.] occasionally in

the beginning, but access has thereafter practically

ceased. In these circumstances, M. cannot be considered to

have such a need of contact with [the applicant] that it

should be an impediment to adoption.

For these reasons and as, moreover, the adoption must be

considered to be in her best interests, the application

shall be granted."

24. On 5 February 1991 the Svea Court of Appeal (Svea hovrätt) upheld

the District Court's decision. On 19 June 1991 the Supreme Court

(Högsta domstolen) refused leave to appeal.

B. Relevant domestic law

25. General provisions on custody and access are found in Chapter 6

of the Parental Code. Section 3 provides that, from birth, the custody

of a child rests with the child's parents, if they are married, or its

mother, if the parents are not married. According to Section 4,

unmarried parents may obtain joint custody on application.

26. Under Chapter 6, Section 15, the child's custodian shall see to

it that the child's need of access to, inter alia, a parent who does

not have custody is satisfied to the largest possible extent. If the

custodian objects to the access requested by a parent who does not have

custody, the courts shall, on an action brought by the latter parent,

determine the question of access in keeping with the child's best

interests.

27. General provisions on adoption appear in Chapter 4 of the

Parental Code. Section 3 provides that a spouse may, with the consent

of the other spouse, adopt the other spouse's child. According to

Section 5 a, a child who has not attained the age of 18 may not be

adopted without the consent of its parents. The consent of a parent

who does not have custody of the child is not required, however.

28. Under Chapter 4, Section 6, the courts shall examine whether it

is appropriate for the adoption to take place. Permission is given

only if the adoption is to the advantage of the child and the

prospective adopter has brought up the child or intends to do so or

there are special reasons for the adoption in view of the special

relationship between the adopter and the child. Section 10 stipulates,

inter alia, that, if the child to be adopted is below the age of 18,

the courts shall obtain the opinion of the social councils of the

municipalities where the adopter and the custodian are registered.

Furthermore, a parent whose consent is not required, i.e. a parent who

does not have custody of the child, shall be heard, if possible.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

29. The Commission has declared admissible the applicant's complaint

that the decision to allow the adoption of his daughter without his

consent violated his right to respect for his family life.

B. Point at issue

30. Accordingly, the issue to be determined is whether there has been

a violation of Article 8 (Art. 8) of the Convention in that the

adoption of the applicant's daughter was allowed although the applicant

did not consent.

C. As regards Article 8 (Art. 8) of the Convention

31. Article 8 (Art. 8) of the Convention reads as follows:

"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 and morals, or for the protection of the rights and

freedoms of others."

a. Whether there was an interference with the applicant's

rights under Article 8 para. 1 (Art. 8-1)

32. The Commission has first examined whether the applicant's

relationship with his daughter falls within the scope of family life

as protected by the above provision.

33. The applicant states that the courts, in allowing the adoption

of his daughter, attached great importance to their limited contacts.

Nevertheless, he submits that he tried, for a considerable period of

time, to get access to her with the help of the social authorities.

His efforts were, however, constantly frustrated by the child's mother.

34. The Government submit that the question could be raised whether,

in view of the limited contacts between the applicant and his daughter,

their relation amounted to family life within the meaning of Article 8

(Art. 8). However, the Government do not itself wish to raise the

argument that the decision on adoption did not constitute an

interference with the applicant's rights under that provision.

35. The Commission recalls that the concept of family life on which

Article 8 (Art. 8) is based embraces, even where there is no

cohabitation, the tie between a parent and his or her child, regardless

of whether or not the latter was born in wedlock. Although that tie

may be broken by subsequent events, this can only happen in exceptional

circumstances (cf., e.g., Eur. Court HR, Boughanemi v. France judgment

of 24 April 1996, Reports of Judgments and Decisions 1996-II,

pp. 607-608, para. 35). Further, the Commission considers that Article

8 (Art. 8) cannot be interpreted as only protecting family life which

has already been established but, where the circumstances warrant it,

must extend to the potential relationship which may develop between a

natural father and a child born out of wedlock. Relevant factors in

this regard include the nature of the relationship between the natural

parents and the demonstrable interest in and commitment by the natural

father to the child both before and after the birth (cf. Keegan v.

Ireland, Comm. Report 17.2.93, para. 48, Eur. Court HR, Series A

no. 290, p. 27).

36. As regards the circumstances of the present case, the Commission

notes that the applicant and K.W., although they had no steady

relationship, had known each other for about two years when, on

19 September 1982, K.W. gave birth to a daughter, M. It was not

disputed that the applicant was the father of the child. The applicant

saw M. at the maternity ward on one occasion and at K.W.'s home a

couple of times during the following months. He also attended M.'s

christening. In these circumstances, the Commission finds that a tie

was established between the applicant and his daughter. It is true

that between the spring of 1983 and June 1987, i.e. before the

applicant requested the help of the social authorities in bringing

about meetings with M., the applicant saw his daughter only

occasionally. It further appears that the lack of meetings was due not

only to K.W.'s resistance but also to the applicant's own problems.

However, the Commission considers that the limited number of contacts

between the applicant and M. does not constitute such exceptional

circumstances that could have broken the tie between them.

Accordingly, the applicant's links with his daughter are sufficient to

bring the relationship within the scope of Article 8 (Art. 8) of the

Convention.

37. The challenged decision of the District Court of 22 December

1989, which was upheld on appeal, granted the husband of K.W.

permission to adopt M. The Commission finds that this amounted to an

interference with the applicant's right to respect for his family life

as ensured by Article 8 para. 1 (Art. 8-1).

b. Whether the interference was justified under Article 8

para. 2 (Art. 8-2)

38. It must accordingly be examined whether this interference was

justified under the terms of Article 8 para. 2 (Art. 8-2). In this

respect, three conditions must be satisfied: the interference must be

"in accordance with the law", it must pursue one or more of the

legitimate aims enumerated in para. 2 and it must be "necessary in a

democratic society" for that or those aims.

39. The applicant submits that the Social Council of Nyköping, which

conducted the only investigation in the case, found that the adoption

was not in the child's best interests. In these circumstances, the

decision to allow the adoption violated his right to respect for his

family life.

40. The Government maintain that the adoption was in accordance with

the provisions of the Parental Code and pursued the legitimate aim of

protecting the interests and welfare of the child. As regards the

question whether the adoption was "necessary in a democratic society",

the Government contend that the decision in question falls within the

margin of appreciation left to the Contracting States under Article 8

(Art. 8). The courts had a choice between making a well established,

safe and secure family situation permanent or risking this situation

by giving the child the possibility of establishing contacts with the

natural father of whose existence the child was not aware. It is of

importance that the District Court's decision was taken after it had

heard the applicant and the adopter. In the Government's view, the

courts had the child's best interests as their primary consideration

and were entitled to think that the adoption was necessary in order to

safeguard those interests.

41. The Commission finds that the decision to allow the adoption was

in conformity with Swedish law, namely Chapter 4, Section 6 of the

Parental Code. Furthermore, the adoption was allowed as it was

considered to be in the child's best interests. Accordingly, the

decision pursued the legitimate aim of protecting the rights and

freedoms of others. It thus remains to be determined whether the

interference with the applicant's rights was "necessary in a democratic

society" in the interests of the child.

42. The Commission recalls that the notion of necessity implies that

the interference corresponds to a pressing social need and, in

particular, that it is proportionate to the legitimate aim pursued.

The Commission has to take into account that a margin of appreciation

is left to the Contracting States. That does not mean, however, that

the Commission's review is limited to ascertaining whether the

respondent State has exercised its discretion reasonably, carefully and

in good faith. The Commission must determine whether the reasons

adduced to justify the interference are relevant and sufficient

(cf. Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988, Series

A no. 130, pp. 31-32, paras. 67-68).

43. The Commission notes that the adoption of M. by. M.W. represented

the final breach of the legal relations between the applicant and M.

Moreover, this measure totally deprived the applicant of his family

life with his daughter. Such a measure should only be applied in

exceptional circumstances and could only be justified if it was

motivated by an overriding requirement pertaining to the child's best

interests (cf. Eur. Court HR, Johansen v. Norway judgment of

7 August 1996, Reports 1996-III, pp. 1008-1009, para. 78).

44. Turning to the facts of the present case, the Commission recalls

that, at the time of the District Court's decision of 22 December 1989,

the applicant's earlier problems, which in part had caused the limited

contacts between him and M., appeared to have been solved. Thus, the

applicant's personal situation did not warrant that his daughter was

given away for adoption. Instead, the decision was based on the fact

that the adopter, M.W., had taken part in the care of M. since she was

eight months old and that, as a consequence, she saw M.W. as her

father.

45. The Commission acknowledges that, in certain circumstances, the

adoption of a child might be a necessary measure to secure a safe and

stable family situation for the child. In the present case, however,

the Commission cannot find any evidence to suggest that the applicant

had the intention of disrupting his daughter's family situation by, for

instance, trying to take her away from the home where she had lived

almost all her life. It appears that he only wished to have access to

her. The Social Council, which investigated the matter, concluded that

such access could be beneficial to M. The Council's investigators

further found it unlikely that contacts with the applicant and his

family would change M.'s feelings towards M.W.

46. The Commission does not overlook that the District Court heard

the applicant and M.W. and that the reasons on which it based its

decision were relevant to the issue of necessity under Article 8

para. 2 (Art. 8-2). However, in the light of what has been stated

above, the Commission cannot find that the court's decision, in

allowing the adoption and so depriving the applicant of his family life

with his daughter, was sufficiently justified for the purposes of that

provision, it not having been shown that the measure corresponded to

any overriding requirement in the child's best interests. Accordingly,

the Commission considers that the Swedish courts overstepped their

margin of appreciation and that, thus, the measure in question could

not be regarded as "necessary in a democratic society".

CONCLUSION

47. The Commission concludes, by 10 votes to 5, that there has been

a violation of Article 8 (Art. 8) of the Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

(Or. English)

DISSENTING OPINION OF J.-C. GEUS, H. DANELIUS,

D. SVÁBY, P. LORENZEN AND E. BIELIUNAS

We have voted against the conclusion that there has been a

violation of Article 8 of the Convention in the present case. Our

opinion is based on the following considerations.

We note that, while the applicant has repeatedly demonstrated his

willingness to assume responsibility as the father of M., he has never

lived together with his daughter and her mother K.W. as a family. He

has met his daughter on a number of occasions but, for various reasons,

his contacts with her have been irregular and seem to have more or less

ceased during the last years before the District Court agreed to the

adoption.

On the other hand, the applicant's daughter lived since her early

childhood together with her mother and M.W. and she regarded M.W. as

her father.

It cannot have been an easy matter for the Swedish courts to

decide whether or not to grant M.W.'s request for permission to adopt

M. It is clear that that views could differ as to whether this adoption

was in M.'s best interests and whether the interference with the

applicant's right to respect for his family life which the adoption

would constitute was proportionate. However, we do not doubt that the

District Court examined the matter in a serious and thorough manner.

It held a hearing in the case, during which it heard both the applicant

and M.W. Having had the benefit of seeing and listening to the persons

involved, the District Court had a better basis than the Commission for

evaluating the situation and for deciding what would be the most

appropriate solution. There is no reason to believe that the District

Court, whose decision was upheld by the Court of Appeal, misjudged the

situation or disregarded any of the legitimate interests involved.

In these circumstances, and having regard to the margin of

appreciation which in such matters should be left to the domestic

courts, we consider that the interference with the applicant's right

under Article 8 of the Convention was in conformity with its

paragraph 2 and that, therefore, there has been no violation of Article

8 in this case.

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SÖDERBÄCK v. SWEDEN

SÖDERBÄCK v. SWEDEN

LEXI