Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 16817/90

Anne-Marie Paulsen-Medalen

and Sven-Erik Svensson

against

Sweden

REPORT OF THE COMMISSION

(adopted on 4 September 1996)

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. 16-48) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-39). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 40-48). . . . . . . . . . . . . . . . . . .7

III. OPINION OF THE COMMISSION

(paras. 49-70) . . . . . . . . . . . . . . . . . . . . 10

A. Complaints declared admissible

(para. 49). . . . . . . . . . . . . . . . . . . . 10

B. Points at issue

(para. 50). . . . . . . . . . . . . . . . . . . . 10

C. As regards the length of the access proceedings and its

compliance with Article 6 para. 1 of the Convention

(paras. 51-57). . . . . . . . . . . . . . . . . . 10

CONCLUSION

(para. 58). . . . . . . . . . . . . . . . . . . . 11

D. As regards the question of access to court, as secured by

Article 6 para. 1 of the Convention, for the determination

of the second applicant's right of access to his son, J

(paras. 59-67). . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 68) . . . . . . . . . . . . . . . . . . . 13

E. Recapitulation

(paras. 69-70). . . . . . . . . . . . . . . . . . 13

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 14

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 applicants are Swedish citizens, born in 1958 and 1957,

respectively. The first applicant resides at Västra Frölunda and the

second applicant at Partille, Sweden. In the proceedings before the

Commission the applicants are represented by Mrs. Siv Westerberg, a

lawyer practising in Gothenburg.

3. The application is directed against Sweden. The respondent

Government are represented by their Agent, Mr. Carl Henrik Ehrenkrona

of the Ministry for Foreign Affairs.

4. The case concerns the length of the proceedings in which the

question of the first applicant's access to her children, who had been

taken into care, was determined as well as the second applicant's

possibility to obtain a court determination of his right of access to

his son. Both applicants invoke Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 7 August 1989 and registered

on 30 July 1990.

6. On 3 May 1993 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.

7. The Government's observations were submitted on 1 November 1993.

The applicants' observations in reply were submitted on

23 December 1993 and 11 January 1994.

8. On 7 September 1995 the Commission declared the above complaints

admissible (see para. 4) whereas a number of other complaints submitted

by the applicants and other members of their family under Articles 6,

8, 13 and 25 of the Convention were declared inadmissible.

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

to the parties on 14 September 1995 and they were invited to submit

further observations on the merits as they wished. The Government

informed the Commission on 18 October 1995 that they had no further

comments to make as regards the merits of the application as declared

admissible. The applicants submitted further observations on 31 October

and 7 December 1995.

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' reactions, 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 (Second

Chamber) 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

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

12. The text of this Report was adopted on 4 September 1996 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 first applicant came into contact with the social authorities

in 1984 while expecting her first child, P. Following the birth of P,

mother and child stayed first with the first applicant's parents, then

with the second applicant and, as from May 1985 with P's father.

Following the birth of her son J, in 1986, the first applicant and her

sons returned to her parents before she moved to Högsbohöjd in the

summer of 1986. In 1989 the first applicant moved to Västra Frölunda

in order to be closer to her parents. During this period of time the

social authorities constantly provided assistance to the family in the

form of financial support and support from various persons in order to

assist the first applicant in the upbringing of her children.

17. When P was about two years old it turned out that he was

developing slowly and he was put on the list of children entitled to

special assistance from the Board for Help and Assistance to the

Mentally Retarded (Omsorgsstyrelsen).

18. In the light of the family's developments since 1984 the social

authorities commenced an investigation in 1988 into the necessity of

taking the children into care. On 8 February 1989 the chairman of the

Social District Council (sociala distriktsnämnden) in Frölunda-Styrsö

decided, on the basis of this investigation, to take the children

immediately into care on a provisional basis. The children were placed

at the Bö Children's Home in Gothenburg.

19. The first applicant appealed against this decision to the

County Administrative Court (länsrätten) of Gothenburg which, by

judgment of 21 February 1989, upheld the provisional care.

20. By judgment of 7 March 1989 the Administrative Court of Appeal

(Kammarrätten) of Gothenburg rejected the first applicant's further

appeal against the provisional care order. Leave to appeal against this

judgment was refused by the Supreme Administrative Court

(Regeringsrätten) on 5 April 1989.

The care order

21. Following the provisional care order the Social District Council

lodged an application with the County Administrative Court on

27 February 1989 in order to have the children taken into care pursuant

to the 1980 Act with Special Provisions on the Care of Young Persons

(lag 1980:621 med särskilda bestämmelser om vård av unga - hereinafter

"the 1980 Act") considering that the first applicant was unable to

provide the necessary care for the children's health and development.

The application was lodged by the Council following a meeting with the

first applicant and her counsel during which she challenged the

Council's and the social authorities' findings.

22. By judgment of 17 March 1989 the County Administrative Court

decided to take the children P and J into care pursuant to Section 1

of the 1980 Act. The Court concluded that there were such deficiencies

in the children's care as to endanger their health and development.

23. The first applicant appealed against the judgment, initially in

respect of both P and J. She later withdrew the appeal in so far as it

concerned P.

24. Following a supplementary child psychiatric examination and two

oral hearings the Administrative Court of Appeal upheld the care order

regarding J by judgment of 13 February 1990.

25. The first applicant appealed against the judgment. Since her

appeal was lodged out of time the Administrative Court of Appeal

refused, on 22 March 1990, to accept the appeal. On 3 July 1990 the

Supreme Administrative Court upheld the decision of the Administrative

Court of Appeal not to accept the appeal.

The implementation of care

a) The first applicant and her sons

26. As indicated above P and J were taken into care on 8 February

1989 and placed at the Bö Children's Home. On 7 March 1989 and 18 April

1989 J and P, respectively, were placed with foster parents. Initially

no decisions regarding the first applicant's access to her children

were made but it appears that the factual situation during this initial

period, from March 1989 until March 1990, was that she could see her

children once every two weeks for 2½ hours in the foster homes.

Furthermore, she could see them in her own home twice per year for

2½ hours. The second applicant, J's father, normally accompanied the

mother when she visited the foster homes in order to see the children.

27. In early 1990 the first applicant contacted her present

representative, Mrs. Siv Westerberg, following which she requested, on

19 March 1990, confirmation from the social authorities that no

restrictions had been issued in respect of her right to see her

children.

28. On 20 March 1990 the chairman of the Social Council

(stadsdelsnämnden) of Högsbo decided, pursuant to Section 16 of the

1980 Act, to restrict the first applicant's access to her children to

2½ hours in the foster homes every second week. On 27 March 1990,

acting both in her own capacity and also on behalf of her children, the

first applicant appealed against the decision to the County

Administrative Court. She maintained primarily that the decision was

unlawful in that the chairman of the Social Council was not authorised

to restrict access.

29. By judgment of 20 June 1990 the County Administrative Court

quashed the chairman's decision, agreeing with the first applicant.

However, on 6 July 1990 the Administrative Court of Appeal quashed that

judgment upon appeal from the Social Council considering that the

chairman of the Social Council did have the power to restrict access.

The Administrative Court of Appeal furthermore referred the case back

to the County Administrative Court for determination on its merits,

i.e. whether the chairman's restrictions as to the first applicant's

access to her children were acceptable.

30. The first applicant appealed against the Administrative Court of

Appeal's judgment to the Supreme Administrative Court. On 5 November

1990 the Supreme Administrative Court refused leave to appeal.

31. In the meantime the social authorities decided, on 19 June 1990,

to restrict the first applicant's right of telephone communications

with J to twice per week. Furthermore, by decision of 3 July 1990 the

restrictions on access to 2½ hours every two weeks in the foster homes

in respect of both children were maintained. These decisions of 19 June

and 3 July 1990 concerning restrictions on access between the first

applicant and her sons were also brought before the County

Administrative Court for determination.

32. On 28 September 1990 the County Administrative Court held a

hearing in the case following which judgment was pronounced on

3 October 1990. The Court upheld the social authorities' decisions as

regards the first applicant's access to her children.

33. On 8 October 1990 the first applicant appealed on her own behalf

as well as on behalf of her sons against the above judgment to the

Administrative Court of Appeal which, following an oral hearing,

pronounced judgment on 11 January 1991 in which the access arrangements

were upheld.

34. On 22 January 1991 the first applicant and the children,

represented by their mother, applied to the Supreme Administrative

Court for leave to appeal against the judgment of the Administrative

Court of Appeal. Leave to appeal was granted on 23 July 1991.

35. By judgment of 28 June 1993 the Supreme Administrative Court

upheld the lower courts' judgments as regards access.

b) The second applicant and his son, J

36. On 5 February 1991 Mrs. Westerberg applied for access to J on

behalf of the second applicant. Mrs. Westerberg submitted as follows:

(Translation)

"(The second applicant) hereby requests access to his son

(J) to the extent indicated below:

(The second applicant) requests access every week-end from

Friday 17:00 hours until Sunday 17:00 hours starting from

15 February 1991. Access shall take place at (the second

applicant's) home at Partille and without obligatory

presence of other persons. (The second applicant) will

bring and fetch (J) in the foster home.

You are requested to send me immediately, and within one

week, a written notice informing me that you accept this

access arrangement and to inform the foster parents

thereof. In case you consider that you cannot decide in

this matter in your capacity as civil servant I request

that you refer the matter to the Social Council

(stadsdelsnämnden), confirm that such a referral has taken

place and inform me when I may expect the Social Council's

decision."

37. On 11 February 1991 the Chief of the Social Service of District

10, Högsbo, Gothenburg (stadsdelsförvaltningen 10, Högsbo, Göteborgs

Stad) informed the second applicant as follows:

(Translation)

" ... I must point out that it is the Act on the care of

young persons which applies in respect of children in

public care. The provisions therein covering access apply,

as you know, only in respect of the custody holder or in

respect of those who have taken care of the child.

Accordingly, it is only the mother (the first applicant)

who falls under these provisions. A natural father is of

course important for the child and the child has of course

a right of access with this parent but in the light of what

is in the best interest of the child. It is the social

authorities, in this case the foster home department at

Tynnered District (familjehemsverksamheten i stadsdels-

förvaltningen Tynnered), which pursuant to Section 11 of

(the 1990 Act) must decide on (J's) personal circumstances

in the foster home. (The second applicant) is welcome to

discuss the question of access with (the secretary

responsible for foster home care).

... I would like to recall that it concerns a child who has

been placed in a foster home by court order due to a need

of care. It cannot be considered to be in the interest of

a child to be removed from its home every week-end,

especially not in the circumstances in which (J) is. Not

even in divorce cases is it normal that access is granted

with such short intervals and in such cases it often does

not even concern children who have any special need for

care which must be provided in the home where it lives.

What you suggest is that a non-custody holder be granted

access which goes beyond what the custody holder has been

granted."

38. The second applicant did not pursue the matter but it appears

that he contacted the Frölunda social authorities in October 1995

enquiring about access to J. By letter of 6 October 1995 the social

authorities replied as follows:

(Translation)

"A right of access to a child for a person other than the

custody holder does not exist under domestic law. It is,

however, appropriate that a child also meets relatives.

...

The County Administrative Court has decided that (J's)

access to his mother should be limited to twice per year,

to be extended as far as (J) agrees. His access to other

relatives should be considered in this light. Concerning

(the second applicant's) request to meet (J) it could be

said that (the second applicant) participates in the

regular access arrangements every two weeks. Admittedly,

(J) has not appeared more than a few times during the last

year but the aim is that (J) in the future shall attend

more often. This means that (the second applicant) then

will meet (J) on the same conditions as the mother (the

first applicant)."

39. It does not appear that the second applicant has taken any other

initiatives in order establish access to his son, J.

B. Relevant domestic law

The Acts with Special Provisions on the Care of Young

Persons of 1980 and of 1990

40. During the proceedings in the present case the 1980 Act with

Special Provisions on the Care of Young Persons (the 1980 Act) was

replaced by a new Act of 1990 with the same name (the 1990 Act). The

1990 Act entered into force on 1 July 1990. According to the

transitional provisions a care order issued under the 1980 Act shall

be regarded as a care order under the corresponding provision in the

1990 Act. The same applies with respect to decisions on access.

41. In the present case the children were taken into care pursuant

to Section 1 of the 1980 Act which at the time read as follows

(subsections 1 and 2):

(Translation)

"Care is to be provided pursuant to this Act for persons

under eighteen years of age if it may be presumed that the

necessary care cannot be given to the young person with the

consent of the person or persons having custody of him and,

in the case of a young person aged fifteen or more, with

the consent of the young person.

Care is to be provided for a young person if

1. lack of care for him or any other condition in the

home entails a danger to his health or development, or

2. the young person is seriously endangering his health

or development by abuse of habit-forming agents, criminal

activity or any other comparable behaviour."

42. Section 11 of the 1990 Act, which corresponds to Section 11 of

the 1980 Act, stipulates that the responsibility for the care and the

child's personal conditions rests with the Social Council

(socialnämnden). The provision reads as follows:

(Translation)

"The Social Council decides how care of the young person is

to be arranged and where he is to reside during the period

of care.

The Council may consent to the young person residing in his

own home if this may be presumed the most appropriate way

of arranging the care, but care pursuant to this Act is

always to commence away from the young person's home.

If a decision by the Council under subsection one or two

cannot be awaited, the chairman or some other member

appointed by the Council may decide the question. The

decision is then to be reported at the next meeting of the

Council.

The Council or the persons charged with care of the young

person by the Council shall supervise the young person and

take such decisions concerning his personal circumstances

as are necessary for the discharge of care."

43. One of the effects of a care decision is that the Social Council

takes the place of the custodian, or can be said to share the

responsibility for the child with the custodian, although the care

decision does not imply that the custody of the child is transferred

to the Council. The responsibility of the Social Council, after a

decision on public care has been taken, includes decisions in matters

regarding the child's personal conditions that are normally entrusted

to a parent. In performing the care, consultations with the child's

parents should be promoted to the extent possible and a care decision

must not have the effect that a parent is deprived of all influence

when it comes to the child's personal conditions. It is only to the

extent necessary for providing the care that the Social Council takes

over the responsibility of the child from its parents.

44. Section 14 of the 1990 Act which corresponds in substance to

Section 16 of the 1980 Act, places upon the Social Council a duty to

see to it that the child's needs of contacts, inter alia with its

parents, are satisfied. This provision reads as follows:

(Translation)

"It is the responsibility of the Social Council to ensure

that the greatest possible provision is made for the young

person's need of access to parents or other persons having

custody of him.

If necessary in view of the purpose of the care authorised

under this Act, the Social Council may decide

1. how access between the young person and his or her

parents or any other person entrusted with the custody of

the child may be exercised, or

2. order that the young person's whereabouts must not be

revealed to parents or custodians.

The Social Council shall review, at least once every three

months, whether an order of the kind referred to in

subsection two is still needed."

45. The Social Council's authority to decide on restrictions on

access applies only in regard to parents or others who have been

entrusted with custody of the child. Decisions on such restrictions,

therefore, cannot be lawfully taken under Section 14 in regard to other

persons who are not the child's custodian.

46. As regards a parent who has no part in the custody of a child the

legal situation is not clear as far as access rights are concerned. So

far there is no authoritative ruling from the Supreme Administrative

Court clarifying whether or to what extent a parent who has no part in

the custody and who has not been granted access by a court or in an

agreement between the parents, can request a decision of the Social

Council in respect of access. From Swedish case-law, however, it

appears that in so far as the Social Council's decisions as to their

contents must be regarded as falling under Section 14 of the 1990 Act

(Section 16 of 1980 Act) they can be appealed against to the County

Administrative Court (cf. Yearbook of the Supreme Administrative Court,

RÃ… 84, 2/38).

47. According to Section 41 of the 1990 Act appeals may be lodged

with the County Administrative Court against a decision of the Social

Council if it has made an order as to where the care of the young

person is to commence or has made an order regarding the transfer of

the young person from the home where he is residing; if it has decided

a question relating to continued care under this Act, has made an

order, pursuant to Section 14, concerning access to the young person

or concerning non-disclosure of his whereabouts. Appeals may also be

lodged against decisions made under Section 22 of the Act as to the use

of preventive measures, decisions concerning access pursuant to

Section 31, or decisions concerning continuing removal prohibitions.

48. Other decisions by the Social Council pursuant to the 1990 Act

are final.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

49. The Commission has declared admissible the first applicant's

complaint concerning the length of the proceedings which determined the

question of access between her and her sons ending with the Supreme

Administrative Court judgment of 28 June 1993. It has also declared

admissible the second applicant's complaint concerning the lack of a

court remedy for the determination of his right of access to his son,

J.

B. Points at issue

50. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention, in that the dispute

concerning the first applicant's access to her sons was not

determined within a reasonable time; and

- whether there has been a violation of the Article 6 para. 1

(Art. 6-1) of the Convention, in that the second applicant

had no court remedy for the determination of his right of

access to his son, J.

C. As regards the length of the access proceedings and its

compliance with Article 6 para. 1 (Art. 6-1) of the Convention

51. Article 6 para. 1 (Art. 6-1) of the Convention reads insofar as

relevant as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing within a

reasonable time by (a) ... tribunal ..."

52. The proceedings in question concerned a mother's right of access

to her children who had been taken into care. The Commission considers

that in such circumstances the purpose of the proceedings was to obtain

a decision in a dispute over "civil rights and obligations" and they

accordingly fell within the scope of Article 6 para. 1 (Art. 6-1) of

the Convention.

53. The proceedings commenced, in the Commission's view, on 20 March

1990 when the chairman of the Social Council of Högsbo decided to

restrict the first applicant's access to her children and they ended

on 28 June 1993 when the Supreme Administrative Court upheld the

decision as regards access. Accordingly, the proceedings lasted

approximately three years and three months.

54. Whereas the first applicant maintains that such a period of time

cannot in the circumstances be considered reasonable the respondent

Government have not submitted further observations on the merits as

regards this complaint but leave it to the Commission to determine

whether the period of time was reasonable.

55. The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (see for example Eur. Court

HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198,

p. 12, para. 30).

56. In the present case the Commission has not found elements which

made the issue of access particularly complex, nor has it been

established that the first applicant's conduct was such as to explain

the length of the proceedings. As regards the conduct of the Swedish

authorities the Commission notes that the question of access was

decided by the County Administrative Court on 3 October 1990 and, on

appeal, by the Administrative Court of Appeal on 11 January 1991. The

period of time involved in these two courts would not, as such, in the

circumstances give rise to criticism. However, the first applicant's

appeal was pending before the Supreme Administrative Court from 22

January 1991 until 28 June 1993, i.e. a period of approximately two

years and five months. The Commission considers that no convincing

explanation for this period has been advanced by the respondent

Government. Furthermore, proceedings concerning a parent's access to

his or her child, who has been placed in public care, require by their

very nature to be dealt with urgently (cf. for example Eur. Court HR,

Johansen v. Norway judgment of 7 August 1996, Reports 1996, para. 88).

The Commission is not satisfied, however, that the proceedings in the

Supreme Administrative Court progressed with a reasonable speed.

57. Accordingly, in the light of the criteria established by its

case-law, recalling the nature of the present case and having regard

to all the information in its possession, the Commission finds that the

length of the proceedings complained of exceeded the "reasonable time"

referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

58. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards

the length of the proceedings determining the first applicant's access

to her sons.

D. As regards the question of access to court, as secured by Article

6 para. 1 (Art. 6-1) of the Convention, for the determination of

the second applicant's right of access to his son, J

59. The dispute in question concerned a father's right of access to

his son. It is undisputed that this involved a determination of "civil

rights and obligations" and that therefore it falls within the scope

of Article 6 (Art. 6) of the Convention. The Commission furthermore

recalls that this provision which is quoted above in its relevant parts

(see para. 51) secures to everyone a right to have any claim relating

to civil rights and obligations brought before a tribunal, thus

embodying the "right to a court" of which the right of access, that is

the right to institute proceedings before courts in civil matters,

constitutes one aspect (cf. Eur. Court HR, Golder v. United Kingdom

judgment of 21 February 1975, Series A no. 18, p. 18, para. 36).

60. In the present case the second applicant maintains that he could

not obtain a decision on the question of access to his son from the

social authorities which he could, if necessary, appeal against to a

court or tribunal within the meaning of Article 6 (Art. 6) of the

Convention.

61. The Government submit that the legal situation on access is not

quite clear as regards a parent, who has no part in the custody of his

or her children, and where there is no access right granted by a court

or in an agreement between the parents. There is no authoritative

ruling by the Supreme Administrative Court illustrating this particular

problem. The Government maintain, however, that the first applicant

appears to agree that the second applicant should have access to J and

that, therefore, it is unlikely that the Social Council would have

refused to take a formal decision on access also in respect of the

second applicant had he maintained his wish to obtain a decision. Such

a decision could then have been brought before the County

Administrative Court for examination.

62. In the alternative the Government maintain that the second

applicant could have appealed to the County Administrative Court

against the de facto restrictions on his access to his son. Thus, the

Government contend that no violation of the second applicant's right

of "access to court" has been substantiated.

63. The Commission recalls that the second applicant's son, J, was

taken into care on 8 February 1989. Initially no decisions regarding

access were made at all but it appears that the factual situation was

that the first and second applicants (the parents) could meet J once

every two weeks in the foster home and twice per year in the first

applicant's home. It is furthermore undisputed that the second

applicant has access to J in that he normally accompanies the first

applicant when she visits her sons.

64. On 5 February 1991 the second applicant requested access to J

every week-end from Friday 17:00 hours until Sunday 17:00 hours

starting from 15 February 1991. By letter of 11 February 1991 the

social authorities informed the second applicant that he ought to

contact the social authorities in charge in order to discuss the

question of access but that his request appeared unreasonable having

regard to the circumstances of the case. The applicant did not pursue

the matter.

65. In October 1995 the second applicant again approached the social

authorities concerning access to J but, again, he did not pursue the

matter once he had received the social authorities' reply of 6 October

1995.

66. The Commission agrees with the Government that notwithstanding

the absence of an authoritative ruling from the Supreme Administrative

Court on the issue of access in circumstances as those prevailing in

the present case, nothing would have prevented the second applicant

from obtaining, pursuant to Section 14 of the 1990 Act, a formal

decision from the Social Council on access. Indeed the Commission

recalls from its decision on admissibility (appendix, p. 22) that J's

grandparents also requested access to J and, following the reply from

the social authorities, insisted upon, and indeed received, a formal

decision from the Högsbo Social Council of 4 December 1992 to that

effect.

67. Furthermore, the Commission is satisfied that such a decision

could have been brought before the County Administrative Court pursuant

to Section 41 of the 1990 Act which provides that appeals may be lodged

with the County Administrative Court against a decision of the Social

Council if it has made an order, pursuant to Section 14 of the Act,

concerning access. Had such proceedings been brought the second

applicant could have sought to contest the view held by the social

authorities as to his right of access pursuant to Section 14 of the

1990 Act and also the factual grounds on which the exercise of

discretion by the authorities would be based. However, for whatever

reason the second applicant chose not to avail himself of this

possibility. In these circumstances the Commission considers that the

requirement of access to court inherent in Article 6 para. 1 (Art. 6-1)

of the Convention is satisfied. Furthermore, as regards the actual

interpretation of Swedish law in such proceedings the Commission does

not consider it appropriate to examine in the abstract whether this

would give rise to any issue under Article 6 para. 1 (Art. 6-1) of the

Convention.

CONCLUSION

68. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards

the second applicant's right of access to court.

E. Recapitulation

69. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards

the length of the proceedings determining the first applicant's access

to her sons (para. 58).

70. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards

the second applicant's right of access to court (para. 68).

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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PAULSEN-MEDALEN AND SVENSSON v. SWEDEN

PAULSEN-MEDALEN AND SVENSSON v. SWEDEN

LEXI