OLSSON v. SWEDEN
Doc ref: 13441/87 • ECHR ID: 001-45480
Document date: April 17, 1991
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 13441/87
Stig and Gun OLSSON
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 17 April 1991)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-13) ........................... 1
A. The application
(paras. 2-4) .................................... 1
B. The proceedings
(paras. 5-9) ..................................... 1
C. The present Report
(paras. 10-13) ................................... 2
II. ESTABLISHMENT OF THE FACTS (paras. 14-93) ............ 3
A. The particular circumstances of the case
(paras. 14-70) ................................... 3
B. Relevant domestic law
(paras. 71-93) ................................... 22
a. The 1980 Act with Special Provisions on the
Care of Young Persons (paras. 72-78) ......... 22
b. The Social Services Act (paras. 79-84) ....... 23
c. The Parental Code (paras. 85-91) ............. 24
d. The 1990 Act (para. 92) ...................... 25
e. The Administrative Courts Procedure Act
(para. 93) ................................... 26
III. OPINION OF THE COMMISSION (paras. 94-185) ............ 27
A. Complaints declared admissible
(para. 94) ....................................... 27
B. Points at issue
(para. 95) ....................................... 27
C. Scope of the Commission's examination
(paras. 96-99) ................................... 27
D. Article 8 of the Convention
(paras. 100-130) ................................. 28
a. Whether there was an interference with the
the applicants' right to respect for their
family life (paras. 103-106) ................. 29
b. Whether the interference was "in accordance
with the law" (paras. 107-118) ............... 30
aa. The restrictions on access
(paras. 110-113) ........................ 30
bb. The prohibition on removal
(paras. 114-118) ........................ 31
c. Whether the interference pursued a legitimate
aim (para. 119) .............................. 31
d. Whether the interference was "necessary in a
democratic society" (paras. 120-130) ......... 32
E. Article 6 of the Convention
(paras. 131-168) ................................. 35
a. Judicial review of the restrictions on
access (paras. 132-134) ...................... 35
b. Length of the proceedings concerning the
termination of the care orders
(paras. 135-147) ............................. 36
c. Length of the proceedings relating to the
applicants' request under Chapter 21 Section 7
of the Parental Code (paras. 148-151) ........ 38
d. Hearing before the Supreme Administrative
Court (paras. 152-161) ....................... 38
e. The appointment of the guardian ad litem
on 17 July 1987 (paras. 162-165) ............. 40
f. Length of the proceedings concerning the
appointment of a guardian ad litem
(paras. 166-168) ............................. 41
F. Article 13 of the Convention
(paras. 169-175) ................................. 41
a. The claim in respect of the restrictions
on access (paras. 172-173) ................... 41
b. The claim in respect of the guardian
ad litem (paras. 174-175) .................... 42
G. Recapitulation (paras. 176-185) .................. 42
Partly dissenting opinion of Mr. Trechsel joined
by MM. H.G. Schermers and J.-C. Geus ...................... 44
APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 45
APPENDIX II: DECISION ON THE ADMISSIBILITY ............... 46
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 a married couple, the husband born in 1941
and the wife in 1944. They are Swedish citizens and reside at Angered
in the vicinity of Gothenburg. The applicants are represented before
the Commission by Mrs. Siv Westerberg, a lawyer practising at
Gothenburg.
3. The application is directed against Sweden. The Government
are represented by their Agent Mr. Carl Henrik Ehrenkrona, legal adviser
at the Ministry for Foreign Affairs, Stockholm.
4. The case relates to the prohibition on the applicants to
remove their children from their foster homes and to various
proceedings relating to the termination of the care order, regarding
the applicants' children and the prohibition on removal. The case
raises issues under Articles 6, 8 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 23 October 1987 and
registered on 3 December 1987. The Commission decided on 14 December
1988 to give notice of the application to the respondent Government
and to invite them to submit written observations on the admissibility
and merits of the application.
The Government's observations were dated 27 April 1989 and
the applicants' observations in reply were dated 13 June 1989.
Further observations were received from the Government on 14 September
1989 and from the applicants on 27 September, 6 and 13 October, 6, 16,
17 and 22 November, 6, 20 and 21 December 1989, 25 and 31 January, 13,
21, 23 and 28 February, 29 March and 9 April 1990.
6. On 16 February 1990 the Commission granted legal aid to the
applicants.
7. On 7 May 1990 the Commission declared the application
admissible.
8. On 18 May 1990 the text of the decision on admissibility
was communicated to the parties who were invited to submit any
additional observations or further evidence they wished to submit and
to reply to certain questions put by the Commission. The applicants
submitted observations by letter dated 19 June 1990 and the Government
by letter dated 19 September 1990. Further letters were received from
the applicants on 11 and 31 May, 1, 9, 12, 17 and 29 June, 6 and
17 July, 1, 9, 10, 14, 24 and 31 August, 4, 17 and 25 September, 12,
15, 19 and 23 October, 13 and 22 November as well as 19 December 1990
and 15 and 28 January 1991.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. In the light of the parties'
reactions the Commission now finds that there is no basis on which a
friendly settlement can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
The text of the Report was adopted by the Commission on
17 April 1991 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
11. The purpose of the Report, pursuant to Article 31 para. 1
of the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
12. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
13. The pleadings of the parties and the documents concerning the
case are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
14. The applicants have three children: Stefan, born in June 1971,
Helena, born in December 1976, and Thomas, born in January 1979.
15. The children were taken into public care, pursuant to Sections
25 (a) and 29 of the 1960 Act on Child Welfare (barnavårdslagen), by a
decision of the Social District Council No. 6 (sociala
distriktsnämnden 6) of Gothenburg of 16 September 1980. Since the
applicants did not consent to the Council's decision, the matter was
submitted to the County Administrative Court (länsrätten) of the
County of Gothenburg and Bohus, which by a judgment of 30 December
1980 confirmed the Council's decision. The Court found that the
health and development of the children were jeopardised as a result of
the parents' inability to give them satisfactory care and education.
The Administrative Court of Appeal (kammarrätten) of Gothenburg, on 8
July 1981, confirmed the judgment of the County Administrative Court
and the Supreme Administrative Court (regeringsrätten) refused leave
to appeal on 27 August 1981.
16. On being taken into care the applicants' children were placed
in a children's home in Gothenburg. From 28 February 1981 Stefan was
placed in a foster home at Tibro, approximately 100 kilometres from
the applicants' home in Gothenburg, and from 28 June 1983 in a
children's home at Vänersborg, approximately 80 kilometres north of
Gothenburg. Helena and Thomas were placed in separate foster homes -
Helena at Näsviken on 21 October 1980 and Thomas at Ljusne on 10
November 1980. These foster homes are situated about 100 kilometres
from each other and the distances between the foster homes and
Gothenburg are about 630 and 590 kilometres, respectively.
17. The applicants' right of access to their children was
restricted during the periods in which the children were in public
care. Stefan spent three or four weeks with his parents in the summer
of 1982. On 10 August 1982 the Social Council decided, pursuant to
Section 16 (1) of the 1980 Act with Special Provisions on the Care of
Young Persons (lagen med särskilda bestämmelser om vård av unga,
hereinafter referred to as "the 1980 Act"), to limit their access to
him to one visit every six weeks. After 22 April 1984 the applicants
were allowed to see Stefan every week, mostly at their home.
18. On 21 October 1980 the Social Council decided to prohibit
access to Helena and Thomas at their foster homes, in accordance with
Section 41 of the 1960 Act, and to prohibit disclosure of their
whereabouts. The applicants were allowed to meet the children
elsewhere every second month. The restriction was lifted in September
1981, but in February 1983 the Social Council decided to restrict the
applicants' right of access to Helena and Thomas to one visit every
third month in the foster homes. This restriction remained in force
for the remainder of the period during which Helena and Thomas were in
public care.
19. The applicants made a request for termination of the care of
their children in 1982, which was rejected by the Social Council. The
rejection was confirmed by the County Administrative Court on
17 November 1982 and by the Administrative Court of Appeal on
20 December 1982. The Supreme Administrative Court refused leave to
appeal.
20. Another request by the applicants to the Social Council for
termination of the care of the children was refused on 6 December
1983.
21. On 9 October 1984 the Social Council refused to accept
Mrs. Westerberg as representative of the applicants in matters under
the 1980 Act. The applicants' appeal was rejected by the County
Administrative Court on 14 January 1985 and by the Administrative
Court of Appeal on 7 February 1985. On 10 May 1985 the Supreme
Administrative Court quashed the above decisions, finding no
sufficient reasons for not accepting Mrs. Westerberg as the
applicants' representative.
22. On 30 October 1984 and 17 September 1985, the Social Council
rejected further requests by the applicants for termination of the
care of Helena and Thomas and of Stefan, respectively. Appeals by the
applicants against these decisions were rejected by the County
Administrative Court on 3 October 1985 and 3 February 1986,
respectively.
23. The applicants appealed to the Administrative Court of Appeal,
which joined the two cases. The hearing was scheduled for 21 August
1986, but was postponed. After holding a hearing on 4 February 1987 at
which the applicants were present and gave evidence, the
Administrative Court of Appeal, by judgment of 16 February 1987,
decided that the public care of Stefan be terminated. Stefan was
subsequently reunited with his parents. However, the appeal
concerning Helena and Thomas was dismissed. The Administrative Court
of Appeal's decision that the public care of these two children should
continue was based primarily on the finding that the applicants were
unable to understand and satisfy the special needs arising in
connection with the reunification of parents and children after so
long a period of separation.
24. Following a further appeal by the applicants, the Supreme
Administrative Court, by judgment of 18 June 1987, ordered that the
public care of Helena and Thomas should terminate there being no
sufficiently serious circumstances to justify its continuation. The
Supreme Administrative Court pointed out that the question to be
determined in deciding whether care should be discontinued pursuant to
Section 5 of the 1980 Act was whether there was still a need for care.
The problems associated with the removal of a child from a foster home
and its possible detrimental effects on him and with his reunification
with his natural parents - on which the Administrative Court of Appeal
had relied - were matters to be considered not under Section 5 but in
separate proceedings, namely an investigation under Section 28 of the
1980 Social Services Act (socialtjänstlagen). The latter Section
empowers a Social Council to prohibit, for a certain period of time or
until further notice, the removal from a foster home of a minor who is
not or is no longer in public care, if there is thereby a risk, which
is not of a minor nature, of harming his physical or mental health.
25. The applicants have previously submitted an application (No.
10465/83) concerning the public care of their children. The
applicants mainly complained about the taking into care of their
children, about the refusal to terminate the care and about the
implementation of the care decision. The Commission found that the
care decisions concerning the applicants' children in combination with
the placement of the children in separate foster homes far from each
other and far away from the applicants constituted a violation of
Article 8 of the Convention (Olsson v. Sweden, Comm. Report 2.12.86,
para. 179, Eur. Court H.R., Series B No. 130). The Court found that
the implementation of the care decision, but not the decision itself
or its maintenance in force, gave rise to a breach of Article 8 of the
Convention (cf. Eur. Court H.R., Olsson judgment of 24 March 1988,
Series A No. 130-A). The Court stated inter alia:
"... the Court has come to the conclusion that the impugned
decision (care order) was supported by 'sufficient' reasons
and that, having regard to their margin of appreciation, the
Swedish authorities were reasonably entitled to think that
it was necessary to take the children into care, especially
since preventive measures had proved unsucessful" (para.
74);
and:
"the Court has come to the conclusion that in 1982 the
Swedish authorities had 'sufficient' reasons for thinking
that it was necessary for the care decision to remain in
force. Neither has it been established that a different
situation obtained when they subsequently maintained the
care decision until its final reversal on different dates in
the first half of 1987" (para. 77);
and as for the implementation of the care order:
"the Court would first observe that there appears to have
been no question of the children's being adopted. The care
decision should therefore have been regarded as a temporary
measure, to be discontinued as soon as circumstances
permitted, and any measures of implementation should have
been consistent with the ultimate aim of reuniting the
Olsson family.
In point of fact, the steps taken by the Swedish authorities
ran counter to such an aim. The ties between members of a
family and the prospects of their sucessful reunification
will perforce be weakened if impediments are placed in the
way of their having easy and regular access to each other.
Yet the very placement of Helena and Thomas at so great a
distance from their parents and from Stefan ... must have
adversely affected the possibility of contacts between them.
This situation was compounded by the restrictions imposed by
the authorities on parental access; whilst those
restrictions may to a certain extent have been warranted by
the applicants' attitude towards the foster families ..., it
is not to be excluded that the failure to establish a
harmonious relationship was partly due to the distances
involved. It is true that regular contacts were maintained
between Helena and Thomas, but the reasons given by the
Government for not placing them together ... are not
convincing. It is also true that Stefan had special needs,
but this is not sufficient to justify the distance that
separated him from the other two children. ...
There is nothing to suggest that the Swedish authorities did
not act in good faith in implementing the care decision.
However, this does not suffice to render a measure
"necessary" in Convention terms ...: an objective standard
has to be applied in this connection. Examination of the
Government's arguments suggests that it was partly
administrative difficulties that prompted the authorities'
decisions; yet, in so fundamental an area as respect for
family life, such considerations cannot be allowed to play
more than a secondary role.
In conclusion, in the respects indicated above and despite
the applicants' unco-operative attitude ..., the measures
taken in implementation of the care decision were not
supported by 'sufficient' reasons justifying them as
proportionate to the legitimate aim pursued. They were
therefore, notwithstanding the domestic authorities' margin
of appreciation, not 'necessary in a democratic society'"
(paras. 81-83).
26. On 23 June 1987 (five days after the last judgment terminating
the care), the Social Council, pursuant to Section 28 of the Social
Services Act, prohibited the applicants until further notice from
removing Helena and Thomas from their respective foster homes. The
Council considered that there was a risk, which was not of a minor
nature, of harming Helena's and Thomas' physical and mental health by
separating them from the foster homes. The reasons given for this
were inter alia that a long time had passed since their parents last
took care of them, that they only had little contact with their
parents during the public care, that they had emotional ties with
their foster homes and that Helena had expressed a wish not to leave
the foster home.
27. On 25 June 1987 the applicants' application for a suspension
(inhibition) of this prohibition was refused by the County
Administrative Court. This decision was confirmed by the
Administrative Court of Appeal on 2 July 1987 and, on 17 August 1987,
the Supreme Administrative Court refused leave to appeal.
28. On 4 August 1987 the applicants' representative, Mrs.
Westerberg, received some documents in the case, relating to the
prohibition on removal, from the County Administrative Court. Among
these was a decision of 17 July 1987, whereby the District Court
(tingsrätten) of Gothenburg, upon a request made by the Social Council
on 1 July 1987, had appointed CÃ… guardian ad litem for Helena and
Thomas according to Chapter 18 Section 2 of the Parental Code
(föräldrabalken). The Social Council had requested that the matter be
decided urgently, for which reason the applicants were not heard. The
applicants had not been informed of the decision by the District Court
and the time limit for an appeal had expired.
29. On 5 August 1987 the applicants requested that the guardian ad
litem be dismissed. Their request was granted by the District Court
on 26 October 1987. The Court stated that CÅ had been
appointed guardian ad litem for the purpose of applying for legal aid
for Thomas and Helena and for the appointment of an official counsel
for them. CÅ was appointed their official counsel by the County
Administrative Court on 31 July 1987 and on the same day they were
granted legal aid. The Court dismissed CÅ as guardian ad litem as he
had completed this mission.
30. On 27 October 1987 the Social District Council again requested
that CÅ be appointed guardian ad litem for Helena and Thomas. This
time the District Court invited the applicants to state their opinion
before the decision was taken. On 12 February 1988 the Court granted
the request finding that the children's interests might be opposed to
those of their parents in the proceedings concerning the prohibition
on removal and also in proceedings concerning the applicants' request
that the children be returned to them in accordance with the rules
laid down in Chapter 21 of the Parental Code. The Court considered CÅ
suitable as guardian ad litem as he was well acquainted with the
matter. It found that the objections made by the spouses Olsson as
regards CÃ…'s suitability were due to the fact that he had taken a
position opposite to theirs.
31. The applicants appealed to the Court of Appeal for Western
Sweden (hovrätten för Västra Sverige), which on 23 August 1988
rejected their appeal. On 8 November 1988 the Supreme Court (högsta
domstolen) refused the applicants leave to appeal.
32. In the meantime, the applicants appealed to the County
Administrative Court against the decision to prohibit them from moving
Helena and Thomas. They requested that the Court appoint Dr.
Fedor-Freybergh to give an expert opinion. On 3 July 1987 the Court
decided to ask Chief Doctor Per Jonsson and Chief Doctor George Finney
to give an opinion not later than 6 August 1987 as to whether there
would be any risk of harm to Helena and Thomas if they were to be
moved from their foster homes. These doctors had previously given
expert opinions in the proceedings concerning the termination of the
care order.
33. Chief Doctor Per Jonsson in an opinion of 14 July 1987
concluded that "moving Helena against her will would entail a
considerable risk to her mental well-being and also a great risk to
her physical health if, in desperation, she were to implement her
plans of running away". In an opinion of 3 September 1987 Chief
Doctor George Finney stated inter alia that "moving Thomas now would
be disastrous to his mental development both emotionally and
intellectually". In an opinion of the same date the certified
psychologist Göran Löthman stated that moving Thomas would not be in
his best interests.
34. The Social Council and CÅ recommended that the appeal be
rejected. The applicants did not request a hearing and no hearing was
held before the County Administrative Court. In its judgment of
3 November 1987 the Court stated the following:
"According to Section 28 of the Social Services Act, the
Social Council may, for a certain period of time or until
further notice, prohibit the guardian of a minor from taking
the minor from a foster home, if there is a risk, which is
not of a minor nature, of harming the child's physical or
mental health by separating it from the foster home.
As a background to how Section 28 of the Social Services
Act should be interpreted the County Administrative Court
quotes the Minister in the Government Bill proposing the
Social Services Act and the Standing Social Committee of
the Parliament (riksdagens socialutskott).
The Minister: 'The aim of the provision is to safeguard the
best interests of the children. Basically it is the
guardian's right to determine the domicile of the child.
This right can in certain circumstances be in conflict with
the child's best interests. The provision provides a
possibility to suspend the guardian's right to decide over
the child.
The condition for this is that there is a risk which is not
of a minor nature that the child's physical or mental health
would be harmed, if it was forced to move from the home where
it is staying. Only a passing disturbance or other occasional
disadvantage is not a sufficient ground for issuing a
prohibition on removal. Among the factors to be considered
are the age of the child, the degree of development, character
and emotional ties. Furthermore, the time the child has been
cared for away from the parents, the living conditions it has
and those it would come to, must be considered. The parents'
contacts with the child during the period they have been
separated must also be taken into account. An important
element in the assessment whether there is a need to issue a
prohibition on removal is the child's own preference. If the
child has reached the age of 15 years, its preference must not
be opposed without good reasons. Even the preferences of
younger children must be considered. The child's preferences
can be of importance in considering the risk of damage to the
child as a result of a removal. In this connection it should
be noted that a prohibition on removal according to the new
provisions can be issued until the child is 18 years old.'
The Standing Social Committee of the Parliament: 'The fact
that the Section follows the pattern of a previous provision
regulating the same matter, does not imply that the intention
is to codify earlier practice characterised by the views of the
past on children's rights and needs. The Committee therefore,
in connection with the statements on the issue in the
Government Bill (Volume A p. 541), stresses that the provision
is aimed at safeguarding the best interests of the child. The
guardian's interest in determining the domicile of the child
must give way when it conflicts with what is in the best
interests of the child. In addition to what has been stated
in the Government Bill the Committee wants to point out that
a separation generally involves a risk of damage to the
child. Repeated transfers and transfers which take place
after a long time when the child has managed to develop strong
links with the home where it lives should thus not be accepted
without good reasons. Children's needs for secure relations
and living conditions must to as large an extent as possible be
decisive in any decision on these questions.'
From the judgment of the Supreme Administrative Court of
18 June 1987 it appears that Helena and Thomas were taken into
public care in September 1980 by the Social District Council
No. 6 of Gothenburg. The Council's decision was confirmed by
the County Administrative Court. The Administrative Court of
Appeal of Gothenburg confirmed the County Administrative
Court's judgment and the Supreme Administrative Court did not
grant leave to appeal. The children were placed in separate
foster homes, Helena at Näsviken and Thomas at Ljusne, both
homes approximately a thousand kilometres from the home of
their parents. The addresses of the foster homes were not
given to the spouses Olsson during the period October 1980 to
September 1981. From then and during most of the stay in the
foster homes the spouses Olsson's right of access to the
children has been restricted to one visit every three months.
According to the information submitted by the children's
guardian ad litem, Gun Olsson has not met Helena and Thomas
since the summer of 1984. Stig Olsson has, together with
Stefan, visited Helena and Thomas in the spring of 1987
and on a few occasions during the last years he has contacted
the foster homes by telephone.
The contacts between the parental home and the children,
according to the information given, have been very limited.
This might be due both to the Social District Council and the
spouses Olsson and the limited contacts between parents and
children also make a reunification appear complicated. Firstly,
to assess the children's own preferences, it appears natural to
the County Administrative Court that the children are opposed
to moving, be it only for the reason that they, like most human
beings, try to avoid changes and prefer to stay in the
environment they are used to. Whether the children's
preferences shall be considered must be decided on the basis
of the children's capacity to take a stand on that issue.
A comparison must be made in this connection with the provision
in Chapter 21 Section 5 of the Parental Code, which states that
enforcement according to the Parental Code must not take place
contrary to the wishes of the child, if the child is twelve
years old, or if the child is not yet twelve years old but
mature enough to have its preference considered. Helena will
soon be eleven years old and Thomas nine years old. Thomas
is in this respect obviously too young to have his preference
considered. Helena is approaching the age at which there is
a better possibility to consider her preference, but the
County Administrative Court does not find it likely that she,
not yet twelve years old, is mature enough to be compared with
a twelve-year-old child. The County Administrative Court
therefore finds no basis for taking the children's own
preferences into account.
If the children are assessed individually Thomas' mental
health does not seem to be so strong but it seems to have
improved continuously. The County Administrative Court
finds it likely that without preparatory contacts between
Thomas and the natural parents, Thomas' mental health will
be seriously endangered if he, without sufficient preparatory
measures, is moved to his parents' home. A prohibition on
removal is therefore justified for his part.
Helena seems stronger than her brother, but even for her part
the idea must be that the child's interest must be considered
to be more important than the parents' rights. For her part
it also appears, considering the sporadic contacts she has
had with her parental home, that an immediate removal and
separation from the foster home, without preparatory
measures, would bring about a risk, which is not of a minor
nature, of harm to her mental health. Also for Helena
it appears therefore for the time being that a prohibition on
removal is well-founded.
A prohibition on removal should not, in the opinion of the
County Administrative Court, be valid for too long a time.
A condition for the prohibition on removal to be revoked
is therefore that the spouses Olsson as well as the Social
District Council engage actively in improving the contacts
between parents and children. It is difficult for the County
Administrative Court, which cannot directly participate in the
work and follow the development, to fix a time limit for an
endeavour of this kind. The prohibition on removal issued
by the Social District Council shall therefore be valid until
further notice."
35. The applicants appealed to the Administrative Court of Appeal.
In the first place, they requested that the prohibition on removal be
revoked and, in the second place, that it be limited in time, at the
utmost until 6 January 1988. They requested that Dr. Fedor-Freybergh
be appointed an expert. The Social District Council and the
children's guardian ad litem recommended that the appeal be rejected.
The applicants did not request a hearing and no hearing was held
before the Court of Appeal. The Court gave judgment on 30 December
1987. It refused the applicants' request that Dr. Fedor-Freybergh be
appointed an expert and rejected the appeal, giving, inter alia, the
following reasons:
"As has been accounted for in detail by the County
Administrative Court in the judgment that has been appealed
against, the contact between the spouses Olsson and their
children Helena and Thomas have for a long time been very
limited. A reunification between them is therefore complicated
and requires relatively extensive preparations. There is
nothing in the investigation to show that there have been any
appropriate preparations for a reunification. The prohibition
on removal should therefore continue and according to the
Administrative Court of Appeal there is not now any basis for
deciding when the removal can be brought about without a risk
of harm to the children's mental health. Against the
background of the conflicts that characterise the contacts
between the children's foster homes and the Social Council, on
the one hand, and the spouses Olsson and their counsel, on the
other hand, there is no reason in this case to set a time limit
for the prohibition on removal. The Administrative Court of
Appeal therefore agrees with the County Administrative Court's
assessment that the prohibition shall be valid until further
notice."
36. The applicants appealed against the judgment to the Supreme
Administrative Court requesting, firstly, that the prohibition on
removal be revoked, and secondly, that it be limited in time until 15
March 1988. They repeated their request that Dr. Fedor-Freybergh be
appointed an expert. They alleged inter alia that, as the European
Court of Human Rights in its judgment of 24 March 1988 had found that
Sweden had violated the Convention by keeping Helena and Thomas in
foster homes far from them and from each other and with a very
restricted access to the children for the applicants, a continued
prohibition on removal would mean that Sweden continued to violate
their human rights and refused to abide by the judgment of the
European Court. The applicants requested a hearing before the Supreme
Administrative Court.
37. On 4 February 1988 the Supreme Administrative Court granted
the applicants leave to appeal and decided to ask for a written
opinion from the National Board of Health and Welfare
(socialstyrelsen) and the Social District Council.
38. In their opinion of 22 March 1988 the Social District Council
stated inter alia that it appeared from the written evidence that
there was a risk which was not of a minor nature of harming Helena's
and Thomas' physical and mental health if they were to be separated
from their foster homes. This risk could not be eliminated by a
prohibition on removal limited in time. The Council further stated
that it intended to make a request to the District Court that the
custody of the children be transferred to the foster parents if the
Supreme Court rejected the applicants' appeal.
39. The National Board of Health and Welfare, in their opinion
dated 23 March 1988, stated that the child psychiatric investigation
which had been carried out was sufficient. It stressed that the
decisive factor as regards the transfer of children, having lived in a
foster home as long as in the present case, must be the relationship
between the children and their parents. In order to create good
contact, and eventually a reunification, co-operation between the
social welfare officers and the foster home on the one hand and the
parents on the other hand was necessary. The Board considered that it
appeared from the case-file that the applicants' counsel had not tried
to co-operate and that this had been unfortunate for the children. It
had had the consequence that no such relation had been established
between the children and their parents as would make it possible for
the children to move to their parents without there being a serious
risk of harm to the children. The Board recommended that the Social
District Council examine the possibility of having the custody of
the children transferred to the foster parents and advised against
granting the applicants' appeal.
40. The Supreme Administrative Court, in its judgment of 30 May
1988, rejected the appeal, the request to appoint Dr. Fedor-Freybergh
as an expert and the request for a hearing, but amended the judgment
of the Administrative Court of Appeal to the effect that the
prohibition on removal was limited in time until 30 June 1989.
However, one of the four judges gave a dissenting opinion wishing to
confirm the judgments of the lower courts. The Court's reasons read
inter alia as follows:
"Section 28 of the Social Services Act provides that the
Social Council, for a certain time or until further notice,
may prohibit the guardian of a minor from taking the minor
from a home of the kind mentioned in Section 25 (i.e. a foster
home), if there is a risk, which is not of a minor nature, of
harming the child's physical or mental health by separating it
from the foster home. The aim of this provision has been
accounted for in the statements made by the responsible Minister
and by the Standing Social Committee of the Parliament, as
quoted by the County Administrative Court of Gothenburg in
its judgment of 3 November 1987.
When Section 28 of the Act is applied in this case a balance
must be struck between, on the one hand, respect for the spouses
Olsson's and their children's private and family life,
including the spouses Olsson's rights as guardians according
to the Parental Code and, on the other hand, the need to
safeguard the children's health (cf. Chapter 1 Section 2
third paragraph of the Instrument of Government [regeringsformen]
and Sections 1 and 12 of the Social Services Act; through these
provisions the protection for private and family life referred
to in Article 8 of the Convention for the Protection of Human
Rights and Fundamental Freedoms can be ensured). In this
assessment it must be considered that Section 28 of the Social
Services Act as well as other provisions specifying the
conditions for coercive measures must be interpreted so that
such measures may be used only when the conditions specified in
the text of the statutes are really satisfied. There are
special reasons to underline this as certain statements of the
Standing Social Committee could be interpreted as if a more
extensive right to take coercive measures exists than is
allowed under the texts of the statutes.
As appears from what has been stated above the children were
placed in the two foster homes because they had been taken
into public care; by virtue of the new Act the care has been
transformed into care according to Section 1 paragraph 2 of
the 1980 Act. The care was caused by the lack of care for
the children or other conditions in the home which entailed a
danger to their health and development. The aim when such a
decision is taken, and when the children subsequently stay in
a foster home, should normally be the reunification of the
children with their parents as soon as circumstances allow.
When the care is terminated according to Section 5 of the 1980
Act the reunification should normally take place as soon as
possible. A reunification needs to be prepared actively and
with understanding. The appropriate preparations should be
made immediately after the care has been terminated. This
should apply even if a prohibition under Section 28 of the
Social Services Act has been issued or is being examined by a
higher instance. The character and the extent of the
preparations, as well as the time required for them, depend on
the circumstances in each case; one or more suitably arranged
and successful visits by the children to their parents' home
must always be required. The need for a more definite
prohibition on removal can normally only be assessed after the
appropriate preparations have been carried out. It is the
Social Council's responsibility to arrange the appropriate
preparations for reuniting parents and children after the care
has been terminated according to Section 5 of the 1980 Act.
The Social Council's responsibility includes an obligation to
be persistent in trying to make the parents and their counsel
actively take part in the preparations in the interests of the
children. The Social Council is not discharged of its
responsibility only because the parents and their counsel, by
appealing against the Council's decisions or in other ways,
show that they dislike the measures taken by the Council or
its personnel. According to Section 68 of the Social Services
Act the County Administrative Board (länsstyrelsen) should
assist the Council with advice and ensure that the Council
performs its duties in an appropriate way.
Pending the beginning and completion of the appropriate
preparations for the reunification of parents and children the
question of a more temporary prohibition on removal under
Section 28 of the Social Services Act can also arise. Such a
prohibition should be seen as a temporary measure awaiting
that the child can be separated from the foster home without
any risk of harm as mentioned in the section.
The elements that should be considered when a decision on
prohibition of removal is taken are - according to the quoted
preparatory works - the age of the child, the degree of
development, character and emotional ties, the time the child
has been cared for away from the parents, the living conditions
it has and those it would come to and the parents' contacts with
the child during the period they have been separated.
From the investigation in the present case it appears that no
appropriate preparations have been made to reunite parents and
children. The time after the Supreme Administrative Court's
decision to terminate the care seems to have been spent
litigating instead.
The issue whether a prohibition on removal under Section 28 of
the Social Services Act is needed in this case, must therefore
be examined without considering the effect of preparations
that have already been carried out. The Supreme Administrative
Court's decision must therefore concern the kind of temporary
prohibition on removal that, according to what has been
stated above, can be issued awaiting that more appropriate
preparations are carried out.
From the investigation - above all the opinion given by the
National Board of Health and Welfare and the medical
certificates quoted in it - it clearly appears that for the
time being, before any preparations have been made, there is a
risk which is not of a minor nature of harming Helena's and
Thomas' physical and mental health by separating them from
their foster homes. Accordingly, there are sufficient reasons
for a prohibition on removal under Section 28 of the Social
Services Act.
As concerns the length of a prohibition on removal the Supreme
Administrative Court, in a previous decision (cf. RÅ 1984
2:78), has stated inter alia the following: If, when the
prohibition is issued, it is already possible to assess with
sufficient certainty that there will be no such risk after a
specific time - at which some measures will have been taken or
the effect of them will have had time to occur - the
prohibition must be valid only until that time. If, on the
other hand, it is uncertain when the child, without a risk
which is not of a minor nature, can be moved to its parents,
the prohibition should be valid until further notice and the
question of a removal be raised again at a later stage, when
it is easier to assess the risk of harming the child's health.
An application of this rule would in the present case lead to
a prohibition on removal valid until further notice. However,
the circumstances of this case are different from those of the
previous case, as no appropriate preparations to reunite
parents and children have been made because of the conflict
between the Social District Council, on the one hand, and the
parents and their counsel, on the other hand. Furthermore, it
must be presumed in this case that only by fixing a time limit
can the parties - without any further litigation - be made to
co-operate in making appropriate preparations in the interest
of the children. If within a certain time limit there are no
such preparations, or if their result is not acceptable, the
Social Council may take up the question of a prolonged
prohibition based on the then existing circumstances.
Against this background the Supreme Administrative Court finds
that the prohibition on removal should be valid until 30 June
1989.
The European Court of Human Rights, in its judgment of
24 March 1988, has found that Sweden in one respect has
violated Article 8 of the Convention for the Protection of
Human Rights and Fundamental Freedoms. This violation
concerned the implementation of the care decision and inter
alia the fact that the children were placed in foster homes so
far from their parents. The issue in this case is another,
namely when and on what conditions the children can be
reunited with their parents in view of the fact that the
Supreme Administrative Court on 18 June 1987 decided that the
care be terminated. A prohibition on removal as mentioned
above is therefore not in conflict with the judgment of
24 March 1988."
41. In the meantime, on 8 December 1987, the applicants requested
that their children be allowed to visit them without the foster
parents being present. The Chairman of the Social District Council on
18 December 1987 rejected the request. On 21 December 1987 the Social
Council was informed about the decision in respect of which it did not
take any specific measures. The applicants appealed against the
decision to the County Administrative Court. On 8 March 1988 the
Court decided not to examine the appeal. The Court considered that,
as Section 28 of the Social Services Act does not regulate parents'
right to access during the time a prohibition on removal is in force,
other provisions in the Act must be applied. The Court referred to
Section 22 third paragraph of the Act which provides that the Social
Council shall encourage an individual's contact with his relatives and
home environment. As decisions taken according to that section are
not among those enumerated in Section 73 of the Act, which can be
appealed against, the Court concluded that no appeal lies against a
decision on access while a prohibition on removal is in force.
42. The applicants appealed to the Administrative Court of Appeal
which, by a decision of 29 April 1988, confirmed the decision of the
County Administrative Court. The Court stated that the Chairman's
decision was not a decision under Section 28 of the Social Services
Act and that it did not belong to any of the other categories of
decisions against which an appeal lies and which are enumerated in
Section 73 of the Act.
43. The applicants appealed to the Supreme Administrative Court
alleging inter alia that the Chairman's decision of 18 December 1987
was unlawful and that it was in violation of Article 13 of the
Convention, as they had no right to appeal against it. The Court
granted leave to appeal and on 18 July 1988 rejected the appeal.
The Court stated:
"Under section 16 of the (1980 Act) ..., a Social Council
may restrict the right of access in respect of children
taken into public care under this Act. As regards the right
of access to children while a prohibition on removal is in
force, no similar power has been vested in the Social
Council in the relevant legislation. As there is no legal
provision giving the Social Council power to restrict the
right of access during the validity of the prohibition on
removal ..., the instructions given by the President of the
Social Council in order to limit the right of access have no
legal effect. Nor can any right of appeal be inferred from
general principles of administrative law or from the
European Convention on Human rights."
44. On 15 August 1988 the applicants lodged a municipal appeal
with the Administrative Court of Appeal against the Chairman's
decision of 18 December 1987. In a decision of 10 October 1988 the
Court stated that such an appeal could not be made against that
decision. The Court found that the appeal must also be considered to
be directed against the fact that the Social Council did not take any
specific measure when informed about the Chairman's decision. In this
respect the appeal was not lodged within the stipulated time-limit and
was consequently rejected.
45. A request made by the applicants on 10 August 1987 that Helena
and Thomas be returned to them in accordance with the rules laid down
in Chapter 21 of the Parental Code was rejected by the County
Administrative Court of the County of Gävleborg, after a hearing on
1 March 1988, by two separate judgments of 15 March 1988. The Court
found that there was a risk, which was not of a minor nature, of
harming the children's mental health by separating them from the
foster homes.
46. The applicants appealed to the Administrative Court of Appeal
of Sundsvall which in a judgment of 11 July 1988 rejected the appeal.
The applicants appealed to the Supreme Administrative Court which on
23 September 1988 refused leave to appeal.
47. On 17 March 1988 the applicants requested that Helena and
Thomas be allowed to attend their grandmother's funeral on 25 March
1988. The Chairman of the Social Council rejected the request on
21 March 1988. The reason given was that the grandmother had been a
rather unknown person to the children.
48. On 5 April 1988 the Social District Council decided that the
judgment of the European Court of Human Rights of 24 March 1988 did
not oblige the Council to amend its previous decisions in the case.
49. On 7 April 1988 the applicants made a request that the
children be allowed to attend a special ceremony on 12 April 1988 at
which the grandmother was buried. The Head of the social authority in
Gothenburg decided on 11 April 1988 to reject the request as being
incompatible with the children's best interest.
50. On 2 August 1988 the applicants made a request to the Social
Council that Helena and Thomas be allowed to come to Gothenburg on
5 August 1988, or at the latest on 8 August 1988, to spend the
remainder of the summer holidays with their parents. From the letter
to the Council it appears that the children had already visited their
parents in Gothenburg once during the summer holidays. They were
accompanied by Helena's foster mother and met their parents for a few
hours in a park on 22 July 1988. The applicants' request was rejected
by the Head of the social authority on 8 August 1988.
51. On 28 September 1988 the applicants requested the Social
District Council of Gunnared to revoke the prohibition on removal.
They invoked the Commission's Report of 14 July 1988 in the Eriksson
case (Eur. Court H.R., Eriksson judgment of 22 June 1989, Series A no
156, pp. 38-55). The Social Council rejected their request on 18
October 1988. The applicants appealed to the County Administrative
Court, which on 12 December 1988 rejected the appeal. The Court
referred to the Supreme Administrative Court's judgment of 30 May 1988
and stated that no such appropriate preparations to reunite the
applicants with Helena and Thomas, as mentioned in that judgment, had
been made. The Court found that there was still a risk of harm to the
children if the prohibition on removal was to be revoked.
52. The applicants made a further appeal to the Administrative
Court of Appeal, which on 22 December 1988 rejected the appeal. The
Court noted that Stig Olsson had met the children on 11 and 12 October
1988 in their foster homes and in their schools and that the children
had visited the applicants' home together with their foster mothers on
16-17 December 1988. The Court nevertheless considered, for the same
reasons as the County Administrative Court, that the prohibition on
removal should not be revoked.
53. The applicants were refused leave to appeal by the Supreme
Administrative Court on 14 February 1989.
54. On 28 September 1988 the applicants also requested access to
Helena and Thomas for a medical examination. The purpose of the
examination was to obtain a medical certificate to be used in the
proceedings before the Commission. On 18 October 1988 the Social
District Council decided to ask for an opinion from the National Board
of Health and Welfare as to whether the request should be granted. In
an opinion dated 27 February 1989 the Board advised against granting
the request. The Board considered that a further examination of the
children might be harmful and that it would not be helpful in the
proceedings. The Social District Council decided on 21 March 1989 to
reject the applicants' request.
55 On 20 December 1988 the Social District Council adopted a plan
for the applicants' meetings with their children in December 1988 and
February, April and June 1989. The applicants were opposed to this
plan.
56. On 27 June 1989 the Social District Council decided to issue a
new prohibition on removal concerning Helena and Thomas, valid until
further notice. The Council also rejected a request that the children
spend their summer holidays with their parents in Alingsås and that
they visit their parents every weekend unaccompanied by their foster
parents.
57. The applicants appealed to the County Administrative Court,
which in a judgment of 4 September 1989 confirmed the prohibition on
removal but limited it in time until 31 March 1990. The Court
stressed the responsibility of the Social Council to implement the
courts' judgments but concluded that the investigation showed that
there was still a risk of harm to the children if they were to move
from the foster homes. Referring to the decision of the Supreme
Administrative Court of 18 July 1988 the County Administrative Court
rejected the appeal insofar as it concerned the applicants' access to
their children.
58. The applicants made a further appeal to the Administrative
Court of Appeal. The Social District Council also appealed requesting
that the prohibition on removal be maintained until further notice.
By a judgment of 23 January 1990 the Administrative Court of Appeal
confirmed the judgment by the County Administrative Court but extended
the time limit for the prohibition on removal until 1 August 1990. The
applicants lodged a further appeal with the Supreme Administrative
Court which refused leave to appeal on 8 March 1990.
59. The applicants' counsel, in her capacity as a member of the
Municipality of Gothenburg, filed a municipal appeal against the
Social District Council's decision of 27 June 1989 insofar as it
concerned the applicants' access to Helena and Thomas. The applicants
could not make such an appeal themselves as they are no longer
domiciled in the municipality in which the decision was taken. The
applicants' counsel also filed a municipal appeal against the Social
District Council's decision of 20 December 1988 to adopt a plan for
the applicants' meetings with their children.
60. In a judgment of 8 January 1990 the Administrative Court of
Appeal found that the Social District Council's decision to restrict
the applicants' access to their children was unlawful. The Court
revoked the decision in that part. In a separate judgment of the same
date the Court found that the adoption of a plan for the applicants'
access to their children formed part of the measures the Social
Council considered to be necessary in order to arrange a removal of
the children from their foster homes to the applicants without any
risk of harm to them. The plan was not a formal decision as regards
the applicants' right of access, especially since it stated that the
applicants could visit their children according to their own wishes.
On 8 March 1990 the Supreme Administrative Court refused the
applicants' counsel leave to appeal against the latter judgment. The
Social Council appealed against this first judgment to the Supreme
Administrative Court which refused leave to appeal on 27 December 1990.
61. On 28 July 1989 the applicants requested the Parliamentary
Ombudsman (justitieombudsmannen) to examine the Social District
Council's handling of their request for access to Helena and Thomas in
their home in Alingsås. The Parliamentary Ombudsman rendered her
decision on 2 May 1990. She considered that Swedish courts and
administrative authorities were not formally bound by the judgments of
the European Court of Human Rights. As regards the restrictions on the
applicants' right of access to their children, when a prohibition on
removal was in force, she stated, inter alia, as follows:
"The prohibition on removal is intended to be a temporary
measure to prevent the parents from taking the child home
immediately and to allow some time in order to prepare for a
reunification. - Although the aim must be that parents and
children shall be reunited, it cannot be disregarded that
there are cases where a reunification within a foreseeable
time must be considered unrealistic. For instance, this is
the case where care has been provided for a child outside
its own home since it was at a very tender age and it grows
up and becomes rooted in a foster home. If, in such
circumstances, there is no longer a need for public care
under the 1980 Act the question of whether to have the
custody transferred to the foster parents must be raised.
Thus, it must not occur that the prohibition on removal is
used as a permanent measure in order to achieve the aim of
letting the child remain with its foster family. - In the
present case the prohibition on removal has remained in
force for a long period of time. The question regarding the
power of the Social Council to take decisions in matters
concerning access between the child and its (parents) has
then arisen.
As has been pointed out by the Supreme Administrative Court
and the European Court there is under the present
legislation no legal possibility to decide on matters
concerning access between parents and children as long as a
prohibition on removal is in force. The reason why the
question of access when a prohibition on removal is in force
has not been regulated in the Social Services Act appears to
have been that the prohibition on removal should be regarded
as a temporary measure.
Thus, the question on how the Social Council shall act when
there is a need for regulating the right to access between
children and parents while a prohibition on removal is in
force is at present not laid down in law. According to the
new Act containing Special Provisions on the Care of Young
Persons, which enters into force on 1 July 1990, a
possibility is opened for the Social Council to issue such
restrictions on access between the child and its parents
as the Council deems necessary for the sake of the child
in the same way as in regard to the care under the 1980 Act
(Section 31). The decision of the Social Council may be
appealed to the County Administrative Court (Section 41
para. 1 p. 3).
The investigation shows that the Social Council has acted
solely out of consideration for the children. In view of
this fact and in view of the lacunae in the present
legislation, which today have resulted in amendments to the
Act, I think that what I have now stated is sufficient to
close the matter."
62. The Social District Council decided on 31 October 1989 to
institute proceedings before the District Court of Alingsås for a
transfer of the custody of Helena and Thomas to their respective
foster parents. The reasons for the decision were the considerable
time the children had spent in their foster homes, their strong
relations with their foster parents, Helena's unwillingness to move to
her parents, Thomas' special need of stability and the fact that a
reunification of the applicants and their children had not been
possible in spite of the considerable efforts made by the social
authority. A preliminary hearing before the District Court was held
on 27 February 1990. On 24 January 1991 the District Court transferred
the custody of Helena and Thomas to their respective foster parents.
It further ordered that the applicants should have access to the
children three times in the year during day time in their home of
Alingsås and three weekends annually. In their reasons the Court
stated inter alia:
"The investigation shows that the parents and the children
have only rarely had contact with each other since the
children have been placed in the foster homes. It is likely
that one of the reasons for this has been the long distance
between the foster home and the parents' home, a situation
which is denounced by the European Court of Human Rights and
for which the Swedish State had to pay a considerable amount
as damages to the parents. Nevertheless, it is to be noted
that the parents did not have to bear the travel and
subsistence costs and that the social authorities organised
the travels whenever the parents wished to visit the foster
home. Furthermore, it is likely that, on the occasions when
meetings have taken place, the parents have felt embarrassed
because of the presence of the foster parents, particularly
as it is evident that the children felt a closer bond with
the foster parents than with the parents. The investigation
does not support the assumption that the parents have been
badly treated by the foster parents. The parents have
required that they be permitted to meet the children to a
considerable extent in their home without the presence of
the foster parents. They have not accepted the restricted
access granted by the social authorities with the support of
the doctors and psychologists, which involved meeting either
in the foster home or in the parents' home in the presence
of the foster parents. It seems that, as a result of this,
no meeting has taken place after the children's visit in
Alingsås in June 1989. No personal contact between parents
and children has occurred after the said visit. No
noticeable other form of contact has taken place. The
parents have recently decided to keep confidential their
telephone number both to the foster parents and to their
children. On the whole, the District Court finds that there
are circumstances which have had an unfavourable effect on
the access, but that the parents have had the opportunity to
have more contact with their children than what has taken
place. The fact that the parents have had relatively little
contact with the children has resulted in their becoming
alien to them."
The applicants have appealed against this judgment.
63. The following appears from the case file as concerns the
applicants' access to their children in 1989:
- a request of 23 March 1989 that the applicants visit their
children on 1-2 April 1989 was rejected by the social authority for
lack of time to organise the visit;
- on 8-9 April 1989 the applicants visited their children in
their foster homes;
- a request of 16 April 1989 that the children be allowed to
participate in the celebration of their grandfather's birthday on
22 April 1989 was rejected on 21 April 1989;
- a request of 10 May 1989 that the children be allowed to
participate in the celebration of their brother Stefan's eighteenth
birthday on 10 June 1989 was rejected on 31 May 1989;
- on 6-7 June (or 16-17 June 1989 according to the Government)
the children, accompanied by their foster mothers, visited the
applicants at Alingsås;
- a request of 19 July 1989 that the children visit their
parents on 28 July-1 August 1989 was rejected on 21 July 1989;
- a request of 8 September 1989 that the children visit their
parents on 15-17 September and 29 September-1 October 1989 was
rejected, as regards the first visit, because of lack of time to
organise it, and as regards the second visit, on the ground that the
children did not wish to visit their parents;
- a request of 6 October 1989 that the children visit their
parents during the weekend of 13-15 October 1989 and every following
weekend was rejected on 11 October 1989.
64. On 16 November 1989 the applicants requested, firstly, that
the children visit them every weekend, starting with the weekend of
24-26 November 1989. Secondly, they requested that the applicants
and their son Stefan visit the children on 25-26 November 1989 in one
of the foster homes without the foster parents being present.
Thirdly, the applicants requested that their counsel be allowed to
meet the children for a day or a half-day to give them information
about their parents and their brother and to explain to them why they
were taken into care and why their parents do not wish to visit them
in their foster homes in the presence of the foster parents. The Head
of the social authority acknowledged receipt of the applicants' letter
on 20 November 1989 and informed them that the social welfare officer
in charge of their case would contact them as soon as possible with a
view to planning a suitable arrangement for their next meeting with
their children.
65. On 21 December 1989 the applicants reported the officer in
charge of their case to the Public Prosecution Authority (Ã¥klagarmyn-
digheten) of Gothenburg for misuse of power and asked for her
immediate arrest. The reason for this action was her failure to
comply with their request of 16 November 1989. The applicants made a
similar request on 21 December 1989. On 30 January 1990, the
Prosecution Authority discontinued the criminal investigation finding
no indication that any criminal offences had been committed.
66. On 12 July 1990 the Social District Council requested a new
prohibition on removal to remain in force until further notice.
67. On 27 July 1990 the County Administrative Court granted the
request but ordered that the prohibition on removal was to be in force
until 28 February 1991. The Court stated inter alia the following:
"Helena and Thomas Olsson have been separated from their
family home during a long period of time. As has been
emphasised in earlier judgments concerning the question of
prohibition on removal a reunification between parents and
children must be prepared in an active and competent way.
The manner and extent of the preparation and the time
required is dependent upon the circumstances in each
specific case, but one or more visits of the children to the
parents, arranged in a suitable way, should always be
required. It is also not until suitable preparatory
measures have been taken that the need for a longer
prohibition on removal can be assessed.
The public care under the previous 1980 Act concerning
Helena and Thomas was terminated by the judgment of the
Supreme Administrative Court of 18 June 1987. Although more
than three years have passed, no preparations with the aim
of having meetings between the children and the parents
arranged have been made, and it appears from the present
investigation that Helena and Thomas met their parents the
last time on 16-17 June 1989 during daytime. As for the rest,
the investigation shows that in other respects there have only
been contacts by letter to a considerable extent, which in
no way has brought the children and the parents any closer.
In addition hereto, it should be noted that the Social
Council has now instituted proceedings before the District
Court of Alingsås requesting a transfer of the custody to
Helena's and Thomas' foster homes in accordance with Chapter
6, Section 8 of the Parental Code.
No preparatory measures that could unite the children and
the parents have been taken and such measures are necessary
in the infected situation now at hand between the parties to
the proceedings and which is detrimental to Helena and
Thomas. Therefore, there are reasons for a prohibition on
removal. The need for such a prohibition is supported by the
fact that the question of custody is scheduled to be
examined by the District Court during the autumn of 1990.
The County Administrative Court, therefore, concludes that
the request made by the Social District Council is
well-founded and that a prohibition on removal shall be in
force until further notice, however, not longer than till 28
February 1991."
68. The applicants appealed to the Administrative Court of Appeal
(proceedings pending).
69. On 4 September 1990 the Social Council (stadsdelsnämnden
Gunnared) rejected the applicants' request for a right of access to
their children every weekend in the applicants' home. The applicants
appealed to the County Administrative Court which in a judgment of 12
December 1990 rejected the appeal. It stated inter alia:
"The investigation shows that (the applicants) met Helena
and Thomas in June 1989. (The applicants) allege that the
foster parents influence the children to be unfavourable
towards their parents. This is not substantiated by the
investigation, which shows that the children have wished to
meet their parents but on their conditions. Helena has
expressed this most clearly and independently. The Court
finds that the access, which the parents demand without any
regard to the children, would therefore not be to the
benefit of Helena and Thomas. Access over the weekends is
therefore not justified. The access, which (the applicants)
claim during school holidays, has not been examined by the
Social Council and cannot therefore be examined by the
Court."
70. The applicants appealed to the Administrative Court of Appeal
(proceedings pending).
B. Relevant domestic law
71. From 1 January 1982 the basic rules on public responsibility
for young persons are laid down in the Social Services Act. This Act
contains provisions regarding supportive and preventive measures taken
with the approval of the individuals concerned. Decisions which had
been taken under the previous legislation, the 1960 Act, and which
were still in force on 31 December 1981, were considered to be
decisions taken under the new legislation, whether it be the Social
Services Act or the 1980 Act with Special Provisions on the Care of
Young Persons.
a. The 1980 Act with Special Provisions on the Care
of Young Persons
72. Where the parents do not give their consent to the necessary
measures, compulsory care may be ordered under the 1980 Act.
73ection 1, paragraphs 1 and 2, of this Act read:
"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."
74. It is primarily the responsibility of the municipalities to
promote a favourable development for the young. For this purpose each
municipality has a Social District Council, composed of lay members
assisted by a staff of professional social workers.
75. If the Social Council deems it necessary to take a child into
care, the 1980 Act specifies that the Council has to apply to the
County Administrative Court for a decision to this effect. Decisions
by the County Administrative Court may be appealed to the
Administrative Court of Appeal. A further appeal lies to the Supreme
Administrative Court if it grants leave.
76. Once a decision on public care has been taken, the Social
Council has to execute the decision, take care of the practical
details of where to place the child, what education and other
treatment to give him, etc. The law requires the care of the child to
be carried out in such a way as to enable him to have close contact
with his relatives and to be able to visit his home. This requirement
may mean that the child returns to his home, after a period, to live
there, although he is still formally under public care.
77. The Social Council may, under Section 16 of the 1980 Act,
regulate visits to and by parents and also decide not to disclose the
whereabouts of the child to them. Such decisions may be appealed to
the administrative courts by both the parents and the child.
78. According to Section 5 of the 1980 Act, the Social Council is
obliged to monitor carefully the care of young persons who are in care
under the Act and "shall decide to terminate care under the Act when
such care is no longer necessary".
b. The Social Services Act
79. The Social Council may issue a prohibition on removal under
Section 28 of the Social Services Act, which reads as follows:
"The Social Council may for a certain period of time or
until further notice prohibit the guardian of a minor from
taking the minor from a home referred to in Section 25 (i.e.
a foster home), if there is a risk, which is not of a minor
nature, of harming the child's physicial or mental health if
separated from that home.
If there are reasonable grounds for assuming that there is such
a risk, although the necessary investigations have not been
completed, a temporary prohibition may be issued for a
maximum period of four weeks, pending the final decision in the
matter.
A prohibition issued under this section does not prevent a
removal of the child from the home on the basis of a
decision under Chapter 21 of the Parental Code."
80. The Government Bill mentioned that a purely passing
disturbance or other occasional disadvantage to the child was not
a sufficient ground for issuing a prohibition on removal (1979/80:1,
p. 541). It stated that the factors to be considered when deciding
whether or not to issue such a prohibition included the child's age,
degree of development, character, emotional ties and present and
prospective living conditions, as well as the time he had been cared
for away from the parents and his contacts with them while separated.
If the child had reached the age of 15, his own preference should not
be opposed without good reasons; if he was younger, it was still an
important factor to be taken into account.
81. The Standing Social Committee of the Parliament stated in its
report (SOU 1979/80:44, p. 78), inter alia, that a prohibition might
be issued if removal could involve a risk of harm to the child's
physical or mental health, thus even where no serious objections
existed in regard to the guardian. The Committee also stressed that
the provision was aimed at safeguarding the best interests of the
child and that those interests must prevail whenever they conflicted
with the guardian's interest in determining the domicile of the child.
It also took as its point of departure the assumption that a
separation generally involved a risk of harm to the child. Repeated
transfers and transfers which took place after a long time, when the
child had developed strong links with the foster home, should thus not
be accepted without good reasons: the child's need for secure
relations and living conditions should be decisive.
82. Section 28 does not apply to children who are being cared for
in foster homes under Section 1 of the 1980 Act. As long as such care
continues, the right of the guardian to determine the domicile of the
child is suspended. Whilst that right in principle revives on the
termination of such care, it may be further suspended by
application of Section 28 by the social authorities.
83. Under Section 73 of the Social Services Act, a decision taken
under Section 28 may be appealed to the administrative courts. In
practice, besides the natural parents both the child concerned and the
foster parents have been allowed to lodge such appeals. In the
proceedings before the administrative courts, a special guardian may
be appointed to protect the interests of the child, should these come
into conflict with those of the child's legal guardian.
84. In a decision (relating to the present case - cf. para. 43
above), the Supreme Administrative Court held that a decision by the
Social Council to restrict the access rights of the appellants, Mr.
and Mrs. Olsson, while a prohibition on removal under Section 28 of
the Social Services Act was in force had no legal effect and that no
appeal to the administrative courts would lie against such a decision.
c. The Parental Code
85. Chapter 21 of the Parental Code deals with the enforcement of
judgments or decisions regarding custody and other related matters.
86. Section 1 specifies that actions for the enforcement of
judgments or decisions by the ordinary courts concerning the custody
or surrender of children or access to them are to be instituted before
the County Administrative Court.
87. According to Section 5, enforcement may not take place against
the will of a child who has reached the age of 12 unless the County
Administrative Court finds enforcement to be necessary in the child's
best interests.
88. Under Section 7, if the child is staying with someone other
than the holder of custody, the child's custodian may, even when no
judgment or decision as described in Section 1 exists, seek from the
County Administrative Court an order for the transfer of the child to
him. Such an order may be refused if the best interests of the child
require that the question of custody be examined by the ordinary
courts.
89. When taking decisions under Section 7, the County
Administrative Court shall also observe the requirements laid down in
Section 5.
90. Under Chapter 6 of the Parental Code, the Social Council may,
in certain cases, request the ordinary courts to transfer custody from
the child's parents to the persons who are in fact taking care of the
child. Section 8 of this Chapter reads:
"If a child has been permanently cared for and brought up in
a private home other than its parental home and if it is
obviously in the best interest of the child that the
prevailing relationship may continue and that custody be
transferred to the person or persons who have received the
child or to one of them, the court shall appoint the said
person or persons to exercise custody of the child as
specially appointed guardians."
91. Such a transfer of custody is, apart from adoption, the most
severe measure available against the natural parents. Although they
retain certain rights and obligations, such as the right of access and
the obligation to pay maintenance, their legal position as guardians
is definitively transferred to the foster parents.
d. The 1990 Act
92. A new Act containing Special Provisions on the Care of Young
Persons entered into force on 1 July 1990. According to the new Act
("the 1990 Act") a prohibition on removal may be issued under
essentially the same conditions as under the Social Services Act of
1980. However, decisions shall be taken by the County Administrative
Court and not as before by the Social Council. According to Section 31
of the 1990 Act, the social authorities may restrict the parents'
right to access also when a prohibition on removal is in force in the
same way as when the public care is still in force. Consequently, the
1990 Act has created a legal basis for the decisions of the social
authorities to restrict the parents' access to their child when a
prohibition on removal is in force. Decisions on restrictions on
access may, according to the new Act, be appealed to the county
administrative courts and further to the administrative courts of
appeal and finally to the Supreme Administrative Court. Under the new
Act the social authorities must reconsider regularly, at least every
third month, whether there are reasons for maintaining the prohibition
on removal in force.
e. The Administrative Courts Procedure Act
93. Section 9 of the Administrative Courts Procedure Act
(förvaltningsprocesslagen) provides that the proceedings are in
principle in writing. A hearing may be held if it is considered to
further the investigation or to accelerate the proceedings. If a party
requests a hearing before the County Administrative Court or the
Administrative Court of Appeal, a hearing shall be held unless a
hearing is unnecessary and if there are no special reasons against a
hearing.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
94. The application has been declared admissible in its entirety.
B. Points at issue
95. The issues to be determined are :
- whether there has been a violation of Article 8
(Art. 8) of the Convention on the ground that the
restrictions on access were not "in accordance with the law";
- whether there has been a violation of Article 8 (Art. 8) of the
Convention with regard to the prohibition on removal;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that the applicants did
not have access to court to challenge the restrictions
on access;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that the proceedings
concerning the termination of the care orders were not
concluded "within a reasonable time";
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that the proceedings
under Chapter 21 Section 7 of the Parental Code were not
concluded "within a reasonable time";
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that the Supreme
Administrative Court did not hold a hearing on the
applicants' appeal concerning the prohibition on removal;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention in relation to the appointment
of the guardian ad litem on 17 July 1987;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that the proceedings
relating to the appointment of the guardian ad litem
were not concluded "within a reasonable time";
- whether there has been a violation of Article 13 (Art. 13)
of the Convention in respect of the restrictions on access;
- whether there have been violations of Article 13 (Art. 13)
of the Convention in respect of the appointment of a guardian
ad litem;
C. Scope of the Commission's examination
96. The Government submit that, in the light of the numerous
decisions rendered during the autumn of 1989 and during 1990, the
scope of the Commission's further examination ought to be clarified.
97. The Commission recalls that the application has been declared
admissible in its entirety. It is true that subsequently the facts on
which the application was originally based have developed and that a
number of decisions have been rendered in the domestic proceedings.
The Commission is competent to examine the facts of a case as they
stand at the time of its final examination of the case. It can thus
take into account new facts in so far as those facts constitute a
continuation of the facts underlying the complaints declared
admissible (see Eur. Court H.R., Olsson judgment of 24 March 1988,
Series A no 130, pp. 28-29, paras. 55-57). In the present case, the
Commission finds that the decisions taken after the decision on
admissibility and referred to in part II above are essentially facts
which are a continuation of the facts declared admissible.
98. The applicants allege that, although the European Court of
Human Rights has delivered a judgment in their favour, the violations
of their rights under the Convention continue. They allege a violation
of Article 53 (Art. 53) of the Convention, which provides that the High
Contracting Parties undertake to abide by the decision of the Court.
99. Under Article 54 (Art. 54) of the Convention the Committee of
Ministers is entrusted with the supervision of the implementation of
the Court's judgments. The applicants' allegation that the violations
have continued after the Court's judgment will, however, be included
in the examination below.
D. Article 8 (Art. 8) of the Convention
100. 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 or morals, or for the protection of the rights and
freedoms of others."
101. The applicants allege a violation of Article 8 (Art. 8) of the
Convention on the ground that their children Helena and Thomas have not
been returned to them. The prohibition on removal has been maintained
with unjustified restrictions on access to the children, and has not
been used by the social authorities to facilitate the children's
return to their parents. On the contrary, the authorities have done
everything to prevent this and have instituted proceedings to transfer
the custody of the children to their respective foster parents. The
social authorities have arranged that a guardian ad litem be appointed
for the children without informing the applicants.
102. The Government concede that the prohibition on removal
constituted an interference with the applicants' right to respect for
their family life under Article 8 para. 1 (Art. 8-1). In the light of the
judgment by the European Court of Human Rights in the Eriksson case
(cf. para. 51 above) and the judgment of the Supreme Administrative
Court (cf. paras. 43 and 84), the Government admit that the
restrictions on the applicants' access after the termination of the
public care were not in accordance with the law as required by Article
8 para. 2 (Art. 8-2). The Government submit, however, that the
restrictions in question were not absolute. They only prevented the
applicants from having the children visit them at their home, but
nothing prevented the applicants from visiting the children in their
foster homes. The authorities tried to encourage such visits. The
Government further submit that as from 1 July 1990 a new Act entered
into force under which restrictions on access could be ordered when a
prohibition on removal is in force. The maintenance in force of the
prohibition on removal and the restrictions on access were necessary
in a democratic society for the purpose of protecting the children's
interests. It was not possible to transfer the children to their
parents without violating the children's wish to remain with their
foster parents. The decision to institute proceedings for the purpose
of transferring the custody to the foster parents should be seen
against this background. A transfer of the children to their parents
against their wish might have involved a violation of the rights of
the child laid down in the United Nations Convention on the Rights of
the Child, or possibly of Article 3 (Art. 3) of the Convention.
a. Whether there was an interference with the applicants' right
to respect for their family life
103. The Commission recalls that the mutual enjoyment by parent and
child of each other's company constitutes a fundamental element of
family life and that the family relationship is not terminated by
reason of the fact that the child has been taken into public care or
is in a foster home under a prohibition on removal (see the
above-mentioned Olsson judgment, p. 29, para. 59, and the Eriksson
judgment of 22 June 1989, Eur. Court H.R., Series A. no. 156, p. 24,
para. 58). Furthermore, in proceedings which relate to a parent's
future relations with his child and concern a fundamental element of
family life, an effective respect for family life requires that the
questions involved are determined solely in the light of all relevant
considerations and not by the mere passage of time (cf. Eur. Court
H.R., H. v. the United Kingdom judgment of 8 July 1987, Series A no
120-B, p. 64, para. 90).
104. The Commission recalls that the applicants were, at least
until 24 January 1991 when the custody of the children was transferred
to their respective foster parents, in principle entitled to take care
of their children. The care order had been lifted, but the Social
Council had issued a prohibition on removal which still remained in
force. Moreover, restriction on access had been imposed by the social
authorities.
105. The Commission finds that these facts constitute an
interference with the applicants' right to respect for their family
life guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention (cf. the
above-mentioned Eriksson judgment, p. 24, para. 58).
106. Consequently, it must be examined whether the interference was
justified under the terms of Article 8 para. 2 (Art. 8-2) of the
Convention. In order to be justified under this provision an
interference must satisfy three conditions: it must be "in accordance
with the law", it must pursue one of the aims enumerated in Article 8
para. 2 (Art. 8-2) and it must be "necessary in a democratic society"
for that aim.
b. Whether the interference was "in accordance with the law"
107. The phrase "in accordance with the law" has been analysed by
the Convention organs on several occasions. The Commission recalls
the following general principles.
108. The word "law" covers both written and unwritten law. It
refers primarily to domestic law and the phrase means that any
interference must be based on such law. However the phrase includes
two requirements which go beyond simple compliance with the domestic
law. These requirements relate to the quality of the law and can be
summarised under the headings "accessibility" and "foreseeability".
Moreover, there must be a measure of legal protection in domestic law
against arbitrary interferences by public authorities with the rights
safeguarded by Article 8 para. 1 (Art. 8-1). A law which confers a
discretion on the authorities must indicate the scope and manner of
exercise of any such discretion with sufficient clarity to afford the
necessary protection (cf. Eur. Court H.R., Sunday Times judgment of
26 April 1979, Series A no. 30, pp. 30-33, paras. 47 - 52 and the
above-mentioned Eriksson judgment, p. 24, para. 59).
109. The Commission has first examined the restrictions on access
and then the prohibition on removal.
aa. The restrictions on access
110. The Government admit that the restrictions on the applicants'
access to their children by the prohibition on removal were not "in
accordance with the law".
111. The Supreme Administrative Court held that restrictions of
access in such a situation have no legal effect as there are no legal
provisions on which they could be based (see paras. 43 and 84 above
and the above-mentioned Eriksson judgment, p. 25, para. 65).
112. In these circumstances, the Commission finds that the
interference resulting from the restrictions of the applicants' access
to their children did not have a sufficient basis in Swedish law and
was therefore not "in accordance with the law" as required by Article 8
para. 2 (Art. 8-2) of the Convention. The Commission has noted that
Swedish law has now changed (para. 92) and that restrictions on access
ordered after 1 July 1990 have a basis in Section 31 of the 1990 Act.
Conclusion
113. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 8 (Art. 8) of the Convention on the ground
that the restrictions on access were not "in accordance with the law".
bb. The prohibition on removal
114. It follows from the case-law of the Convention organs that the
relevant provisions of the 1980 Act and the Social Services Act
regarding public care and prohibition on removal satisfy the
requirements under Article 8 para. 2 (Art. 8-2) of the Convention as to
accessibility and foreseeability (see the above-mentioned Olsson
judgment, p. 30, para. 62 and Eriksson judgment, p. 24, paras. 59-60).
115. Consequently, the issue which arises regarding conformity with
the law does not concern the quality of the relevant Swedish law but
is limited to the question whether the prohibition on removal was
consistent with that law. Here, it is recalled that the Commission's
power to review compliance with domestic law is limited : it is in the
first place for the national courts to interpret and apply that law
(see the above-mentioned Eriksson judgment, p. 25, para. 62).
116. The Commission notes that the prohibition on removal was
imposed by the Social Council without any limitation in time. On the
applicant's appeal this decision was confirmed first by the County
Administrative Court and then by the Administrative Court of Appeal.
After a further appeal, the Supreme Administrative Court decided that
the prohibition on removal should be limited until 30 June 1989.
The decision to prohibit removal was consequently taken after a full
examination carried out successively by the Social Council, the County
Administrative Court, the Administrative Court of Appeal and the
Supreme Administrative Court. Moreover, a request from the applicants
that the prohibition on removal be revoked was rejected finally when
the Supreme Administrative Court refused leave to appeal on 14
February 1989.
117. A new prohibition on removal, valid until further notice, was
issued on 27 June 1989 by the Social Council. This decision was on
appeal examined by the County Administrative Court and the
Administrative Court of Appeal, which found that the prohibition
should remain in force until 1 August 1990. The Supreme Administrative
Court refused leave to a further appeal. On 27 July 1990 the County
Administrative Court, at the request of the Social Council, again
prolonged the prohibition on removal, this time until 28 February 1991
(para. 67). The applicants appealed to the Administrative Court of
Appeal where the case is pending.
118. Having examined, in particular, the judgment of the Supreme
Administrative Court of 30 May 1988 (para. 40 above) and the
subsequent judgments, the Commission finds no indication that the
prohibition on removal and its maintenance in force were contrary to
Swedish law. It is satisfied that the prohibition was "in accordance
with the law" for the purpose of Article 8 para. 2 (Art. 8-2) of the
Convention.
c. Whether the interference pursued a legitimate aim
119. The Commission finds that the prohibition on removal was aimed
at protecting the interests of the children, which interests fall
within the expressions "the protection of health" and "the protection
of the rights and freedoms of others", which are both legitimate aims
under Article 8 para. 2 (Art. 8-2).
d. Whether the interference was "necessary in a democratic society"
120. "Necessary" in this context requires that the interference
corresponds to a "pressing social need". It is for the national
authorities to make the initial assessment of the necessity of a given
interference. The national authorities have a "margin of
appreciation" in making this assessment but the decisions of the
domestic authorities are subject to a review by the Convention organs
(see e.g. Eur. Court H.R., Handyside judgment of 7 December 1976,
Series A no. 24, pp. 22-24, paras. 48-50).
121. Furthermore, an interference with a Convention right cannot be
regarded as "necessary in a democratic society" unless it is
proportionate to the legitimate aim pursued (see e.g. Eur. Court H.R.,
Leander judgment of 26 March 1987, Series A no. 116, p. 25, para. 58).
When deciding whether an interference is necessary the Convention
organs cannot confine themselves to considering the impugned decisions
in isolation, but must look at them in the light of the case as a
whole. They must determine whether the reasons adduced to justify the
interference are "relevant and sufficient" (cf. the above-mentioned
Olsson judgment, pp. 31-32, paras. 67-68). When examining these
questions they should take into account that Article 8 (Art. 8) includes a
procedural requirement that in child-care cases the parents must have
been sufficiently involved in the decision-making process (see Eur.
Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A
no. 121, p. 29, para. 64).
122. The Convention organs have previously been seised with cases
concerning the necessity of a prohibition on removal, notably the
above-mentioned Eriksson case, the Nyberg case (Comm. Rep. 15.3.90,
Nyberg v. Sweden to be published in Eur. Court H.R., Series A
no. 181-B) and the Rieme case (Comm. Rep. 2.10.90, Rieme v. Sweden to
be published in Eur. Court H.R., Series A). In the Eriksson case the
Court made the following statement (pp. 26-27, paras. 70-71):
"The original decision to prohibit Mrs Eriksson from
removing her daughter from the foster home may well, in the
circumstances of the case and having regard to the margin of
appreciation accorded to the Contracting States in this
area, be said to satisfy this requirement.
In cases like the present a mother's right to respect for
family life under Article 8 (Art. 8) includes a right to the taking
of measures with a view to her being reunited with her
child. The care order had been lifted, and there was no
doubt as to the suitability of Mrs Eriksson to take care of
children or of the conditions in her home (see paragraph 20
above). The Social Council's decision of 21 January 1983
(see paragraph 12 above (c) above) made it clear that once
the care order was no longer in force, the aim was the
reuniting of parent and child. Furthermore the Supreme
Administrative Court stated, in its judgment of 11 October
1984 (see paragraph 22 above), that '[i]rrespective of the
duration of the prohibition the [Social Council] is obliged
to see to it that appropriate measures aimed at reuniting
parents and child are taken without delay'.
However, it appears that under Swedish law Mrs Eriksson did
not, after the lifting of the care order, have any
enforceable visiting rights while the prohibition on removal
was in force. Furthermore, and in particular on account of
the restrictions on access, she was in fact denied the
opportunity to meet with her daughter to an extent and in
circumstances likely to promote the aim of reuniting them or
even the positive development of their relationship. In
this situation she has not been able to have the prohibition
on removal lifted. The resulting stress on the relations
between the applicants and the uncertainty with regard to
Lisa's future have already continued for more than six
years, causing great anguish to both applicants.
The Government admitted that the system as implemented had
failed on this occasion, but argued that situations such as
the present could not be prevented whatever system would
have been applied, as all depended on the persons involved.
The Court recognises that difficulties may arise in
consequence of the termination of public care of young
children, especially where the child has been taken into
care at a very young age and has spent many years away from
his natural parents' home. However, the unsatisfactory
situation that has ensued in the present case seems to a
large extent to stem from the failure to ensure any
meaningful access between mother and daughter with a view to
reuniting them.
Having regard to the foregoing and notwithstanding Sweden's
margin of appreciation, the Court concludes that the severe
and lasting restrictions on access combined with the long
duration of the prohibition on removal are not proportionate
to the legitimate aims pursued."
123. In the same case, the Commission made the following general
statements (Comm. Rep. 14.7.88, Eriksson v. Sweden, Eur. Court H.R.,
Series A no. 156, pp. 43, 44 and 46, paras. 207, 211 and 220):
"The Commission recalls that a prohibition on removal
is a measure which may be applied in a situation where no
reproaches are levelled against the natural parents, but
where the interests of the child, who may have lived for a
long time in a foster home, militate in favour of a
transitional period before the child is actually returned to
its natural parents. A prohibition on removal is thus meant
to be a temporary measure. The temporary nature of a
prohibition on removal may also explain that there are no
legal provisions allowing for regulations of the parent's
right of access. According to the Government the legislator
has not foreseen that a prohibition on removal will remain
in force for a long period.
...
The Commission considers that once a decision to return a
child to its natural parents has been taken it must be in
the interests of all parties involved that such a decision
is implemented as quickly as possible. A prohibition on
removal temporarily suspends the removal of the child and is
therefore, although it may be justified during a
transitional period, a measure which by its very nature is
likely to increase the tension between those involved in the
transfer of the child, notably the child, the foster parents
and the natural parents. If such a situation prevails for a
long time there is a great risk that, as time goes by, the
conflicts will increase and that it gradually will become
more difficult to establish the close relationship between
the child and his or her natural parent which is a necessary
condition for the transfer.
...
Moreover, the Commission considers that the uncertainty
about Lisa's future which has prevailed ever since January
1983, when it was decided to terminate the care order and to
issue a prohibition on removal, was in itself unsatisfactory
and potentially harmful to all the parties concerned, in
particular to Lisa. The Commission is of the opinion that
it was not in Lisa's interests to leave the question of her
future open and uncertain for so many years."
124. In the present case, the Commission notes that the Supreme
Administrative Court, in a judgment of 18 June 1987, ordered that the
public care of Helena and Thomas should be terminated. As a result of
this decision, the social authorities were under an obligation to take
appropriate measures to facilitate Helena's and Thomas's return to the
applicants at the earliest possible time. The first question which
arises before the Commission is whether the measures taken by the
social authorities were adequate and sufficient or whether, by their
failure sufficiently to promote the aim of reunification of parents
and children, the prohibition on removal no longer satisfied the
condition of being "necessary in a democratic society" in the
children's interests.
125. It appears that during the long time the prohibition on
removal was in force, the applicants met Helena and Thomas on not more
than four occasions. It further appears that, on the one hand, the
applicants requested increased access to their children on a number of
occasions and that, on the other hand, the social authorities made
certain efforts to arrange for further access. However, for reasons
which appear to be related to difficulties in the co-operation between
the applicants and their counsel, on the one hand, and the social
authorities and the foster parents, on the other hand, further access
was not arranged.
126. The Commission has not found it necessary to examine in detail
the background and reasons for each failure to arrange access. It
notes, however, that this time the applicants did not have any
enforceable access rights due to the fact that the restrictions on
access were basically not in accordance with Swedish law and they had
no access to court to secure access to the children.
127. The Commission cannot exclude that the social authorities,
even if they had made serious efforts to promote the reunification of
parents and children, would after some time have found that, due to
the attitude of the parents or their counsel or for other reasons,
reunification was not a realistic prospect. In such a situation it
would have been incumbent upon them to take proper action in order to
bring about any other solution which would be in the best interest of
the children.
1128. However, in the present case the social authorities did not
succeed in bringing about favourable conditions for promoting a
reunification. Nor did they until October 1989 take action based on
the consideration that, for special reasons, such a result could not
reasonably be achieved.
129. The fact that the prohibition on removal was allowed to remain
in force for more than two years without any meaningful contact
between the applicants and their children being established and
without any other effective measure to resolve the existing problems
being taken cannot be considered, even having regard to Sweden's
margin of appreciation, to have been necessary in the interest of the
children.
Conclusion
130. The Commission concludes, by 17 votes to 3, that there has been
a violation of Article 8 (Art. 8) of the Convention with regard to the
prohibition on removal.
E. Article 6 (Art. 6) of the Convention
131. The applicants allege several violations of Article 6 para. 1
(Art. 6-1) of the Convention (cf. para. 95 above), which, insofar as
material, reads:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law."
a. Judicial review of the restrictions on access
132. The Government admit that there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention on the ground that the
applicants did not have access to a court to challenge the
restrictions on access to their children.
133. The Commission recalls that the Supreme Administrative Court
has found (paras. 43 and 84) that no administrative appeal lay against
the decision by the Chairman of the Social Council. It further recalls
that the same issue has already been examined in the Eriksson case
(above-mentioned Eriksson judgment, p. 29, paras. 80-82) and that it
was found in that case that there had been a violation of Article 6
para. 1 (Art. 6-1). The facts of the present case are not so
different as to justify a different conclusion.
Conclusion
134. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on
the ground that the applicants did not have access to court to
challenge the restrictions on access.
b. Length of the proceedings concerning the termination
of the care orders
135. The applicants submit that the duration of the proceedings
relating to the termination of the care orders exceeded "a reasonable
time" in the sense of Article 6 para. 1 (Art. 6-1) of the Convention.
136. The Government, having regard to the entirety of the
proceedings, submit that the duration was compatible with the
condition of "reasonable time". The case was of a very complex nature
involving difficult assessments, careful investigations and numerous
elements of evidence. It created a precedent in the Swedish
jurisprudence. The fact that the case was, at the same time, examined
by the Convention organs made it even more complex. In the proceedings
before the County Administrative Court an issue arose as to whether
the applicants' counsel should be admitted as their representative in
those proceedings. This difficult issue resulted in proceedings which
eventually led to a decision of the Supreme Administrative Court,
which quashed the previous decisions re-instating Mrs. Westerberg as
counsel for the applicants. This decision also became a precedent. The
proceedings before the Social Council relating to Stefan were delayed
by the detailed investigations which had to be made.
137. The Commission recalls that the reasonableness of the length
of proceedings is to be assessed according to the particular
circumstances of the case and having regard, in particular, to the
complexity of the case, the conduct of the parties and the authorities
concerned and to what was at stake in the litigation for the
applicants. Only delays attributable to the State may justify a
finding of a failure to comply with the requirement of "reasonable
time" (cf. Eur. Court H.R., H v. the United Kingdom judgment of 8 July
1987, Series A no 120-B, p. 59, para. 71).
Period to be taken into consideration
138. There is a dispute between the parties as to the date when the
proceedings were introduced by the applicants before the Social
Council. It is established that on 30 October 1984 the Social Council
rejected the request for a termination of the care order with regard
to Helena and Thomas and that the proceedings terminated on 18 June
1987 when the Supreme Administrative Court ordered that the care be
terminated. As regards Stefan, the Social Council rejected the request
on 17 September 1985 and the Administrative Court of Appeal terminated
the care order by judgment of 16 February 1987.
139. The applicants submit that the request for the termination of
the care order was submitted in the autumn 1983. The Government
contest this. The request submitted in the autumn 1983 was dated 8
November 1983 and was rejected by the Social Council on 6 December
1983 and no appeal was made against this decision. The Government
state that it is not possible to establish which request was rejected
on 30 October 1984, but that it appears that it was a request dated
15 August 1984 and lodged with the Council on 16 August 1984. The
Government consider that this date should be taken as the starting
point for the period to be examined. The applicants reply that they
were never informed of any decision dated 6 December 1983.
140. On the material available to it, the Commission finds that 16
August 1984 must be taken as the date when the period to be examined
started.
141. Consequently, with regard to Helena and Thomas the period to
be considered is two years and ten months, and with regard to Stefan
the period is two years and six months.
Reasonableness of the period
142. The Commission accepts that the proceedings were complex
particularly in view of the evidence and investigations involved and
of the additional issues arising in regard to the question of the
applicants' representation in the proceedings. The Commission is
further of the opinion that what was at stake for the applicants was
particularly important for them and their relations with their
children.
143. As regards the procedure, the Commission recalls that the case
was first examined by the Social Council and thereafter followed three
levels of court examination. The duration of the proceedings as
regards Helena and Thomas was approximately two and a half months
before the Social Council, eleven months before the County
Administrative Court, one year and four and a half months before the
Administrative Court of Appeal, and four months before the Supreme
Administrative Court.
144. In respect of Stefan the proceedings lasted one year and one
month before the Social Council, four and a half months before the
County Administrative Court and more than one year before the
Administrative Court of Appeal.
145. The Commission recalls that hearings were held before the
County Administrative Court in the case of Helena and Thomas and
before the Administrative Court of Appeal in the case of all three
children. The Commission has examined the court judgments and noted
the extent of the investigations undertaken. It considers that an
issue arises essentially with regard to the procedure before the
Social Council as regards Stefan and in respect of the procedure
before the Administrative Court of Appeal. The Government have
explained that, before the Social Council, further investigations were
necessary as regards Stefan. As regards the procedure the
Administrative Court of Appeal it is observed that the hearing before
the Court was scheduled to take place on 21 August 1986. However, for
reasons which it has not been possible to establish the hearing was
postponed until 4 February 1987.
146. The Commission finds it of great importance that matters of
this nature are dealt with swiftly. A delay of almost six months in
deciding such matters which are ready for a decision without any
apparent reason can normally not be accepted. Nevertheless, in view of
the complexity of the case and having regard to the entirety of the
proceedings, the Commission accepts that the duration of the
proceedings did not exceed what can be regarded as "reasonable time"
in Article 6 para. 1 (Art. 6-1) of the Convention.
Conclusion
147. The Commission concludes, by 14 votes to 6, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention as
a result of the duration of the proceedings concerning the termination
of the care orders.
c. Length of the proceedings relating to the applicants'
request under Chapter 21 Section 7 of the Parental Code
148. These proceedings started on 10 August 1987 when the
applicants lodged their request that Helena and Thomas be returned to
them in accordance with the rules laid down in Chapter 21 of the
Parental Code. The proceedings terminated on 23 September 1988 when
the Supreme Administrative Court refused leave to appeal. The duration
of the proceedings was thus one year, one month and 13 days.
149. In view of the fact that the proceedings under Chapter 21 of
the Parental Code are enforcement proceedings which do not determine
civil rights and obligations an issue arises as to whether Article 6
para. 1 (Art. 6-1) was at all applicable to these proceedings.
150. The Commission considers that it can leave this question open
as it is of the opinion that the proceedings at issue did in any event
not violate the requirement of "reasonable time". The Commission
recalls in this respect that the case was dealt with at three levels
of jurisdiction. The applicants' request was rejected by the County
Administrative Court on 15 March 1988 after a hearing held on 1 March
1988, and their appeal was rejected by the Administrative Court of
Appeal on 11 July 1988. On 23 September 1988 the Supreme
Administrative Court refused leave to appeal. The duration of the
proceedings is in the circumstances compatible with Article 6 para. 1
(Art. 6-1) of the Convention.
Conclusion
151. The Commission concludes, by 19 votes to 1, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention
with regard to the duration of the proceedings under Chapter 21 of the
Parental Code.
d. Hearing before the Supreme Administrative Court
152. The applicants complain that the refusal of the Supreme
Administrative Court to hold a hearing on their appeal concerning the
prohibition on removal violated Article 6 para. 1 (Art. 6-1) of the Convention.
153. The Government submit that there has been no violation of
Article 6 para. 1 (Art. 6-1) in this respect. They refer to the fact
that the proceedings before the Supreme Administrative Court were
proceedings in third instance. They also refer to the nature of the
Swedish appeal system and to the role of the Supreme Administrative
Court in this system as well as to the nature of the issues before the
Court in this case.
154 The Commission finds that Article 6 para. 1 (Art. 6-1) of the
Convention applied to the proceedings before the Supreme
Administrative Court on the ground that they related to the
determination of a dispute over the applicants' "civil rights" and as
the Court had granted leave to appeal.
155. According to the case-law of the Commission and the European
Court of Human Rights a State which institutes courts of appeal is
required to ensure that persons amenable to the law shall enjoy before
these courts the fundamental guarantees contained in Article 6
(Art. 6) of the Convention. The manner of application of this
provision depends, however, on the circumstances of the case (cf. for
example Eur. Court H.R., Axen judgment of 8 December 1983, Series A
no. 72, p. 12, para. 27 with further references). The question before
the Commission is therefore whether a departure from the principle
that there should be a public hearing could, in regard to the
proceedings before the Supreme Administrative Court, be justified in
the circumstances of the present case by the special features of the
domestic proceedings viewed as a whole. In deciding this question,
the Commission must have regard to the nature of the national appeal
system, the role of the Supreme Administrative Court and the manner in
which the applicants' interests were actually presented and protected
in the proceedings.
156. As regards the national appeal system, the Commission recalls
that the prohibition on removal was issued by the Social Council. The
applicants appealed to the County Administrative Court, then to the
Administrative Court of Appeal and, finally, to the Supreme Administrative
Court. Consequently, the Supreme Administrative Court was the third
degree of jurisdiction. Its task in the Swedish legal system is
essentially to develop the case-law in administrative matters under its
jurisdiction. An appeal to the Supreme Administrative Court can, with
few exceptions, only be examined on its merits after leave to appeal
has been granted, and such leave shall only be granted if it is
important for the development of the case-law that the case is examined
by the Supreme Administrative Court, or if there are special reasons
such as the existence of a ground for re-opening of proceedings or of a
serious error in the judgment of the Administrative Court of Appeal.
Where leave to appeal is granted, new evidence shall normally not be
admitted before the Supreme Administrative Court.
157. The Commission has in two previous cases held that Article 6
para. 1 (Art. 6-1) of the Convention did not require a hearing before
the Supreme Administrative Court. One case concerned the
interpretation of a double taxation agreement (No. 12670/87, Dec.
16.3.88, to be published in D.R.). The Commission took into account
in that case that the issue before the Court was essentially one of
legal qualification and the outcome could not be more unfavourable
than the judgment of the Administrative Court of Appeal. In the other
case (No. 12805/87, Dec. 13.3.89, to be published in D.R.) which
concerned public care, the Commission noted that new evidence had been
brought before the Court and that the Court had to decide whether or
not the lower courts had correctly assessed the situation when
deciding that the child should remain in public care. Nevertheless,
as hearings had been held before the lower courts and the Supreme
Administrative Court could not give a more unfavourable judgment to
the applicant, Article 6 para. 1 (Art. 6-1) did not require a hearing.
The Commission considers that similar considerations apply in the
present case.
158. Furthermore, as regards the right to a hearing before the
administrative courts, the Commission observes that under Section 9 of
the Administrative Court Procedure Act the proceedings are in
principle in writing. A hearing may be held if it can be assumed to
be to the advantage of the investigation or promote a quick decision
in the case. If a party requests a hearing before the County
Administrative Court or the Administrative Court of Appeal a hearing
shall be held unless a hearing is unnecessary and if there are no
special reasons against a hearing.
159. Consequently, under the law the applicants could have obtained
hearings before the County Administrative Court and the Administrative
Court of Appeal. However, they never asked for such hearings and the
Courts examined the case without a hearing. In this context, the
Commission recalls that the European Court of Human Rights has found
that in cases where an applicant does not ask for a hearing when this
is possible and provided for by the national law, the failure to ask
for a hearing may be interpreted as a waiver of the right to a hearing
(Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990,
Series A no. 171, p. 20, paras. 66-67).
160. In these circumstances, where the applicants had not asked for
a hearing before the County Administrative Court and the Administrative
Court of Appeal and in view of the Supreme Administrative Court's role
in the Swedish legal system, the denial of a hearing before the Supreme
Administrative Court does not involve a violation of Article 6 para. 1
(Art. 6-1) of the Convention.
Conclusion
161. The Commission concludes, by 19 votes to 1, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention on
the ground that the Supreme Administrative Court did not hold a
hearing on the applicants' appeal concerning the prohibition on
removal.
e. The appointment of the guardian ad litem on 17 July 1987
162. The applicants allege that they were not informed of the
District Court's decision of 17 July 1987 to appoint a guardian ad
litem for Helena and Thomas for the purpose of applying for legal aid
for Helena and Thomas and for the appointment of an official counsel
for them (cf. paras. 28-29). The applicants submit that, as they were
not informed of the decision, they were unable to challenge it.
163. The Commission recalls that the guardian ad litem was
dismissed on 26 October 1987 following a request from the applicants
on 5 August 1987. It thus appears that the applicants were informed of
the decision within a maximum of 19 days. It is true that the time
limit of appeal had expired and that the guardian had completed his
mission. Nevertheless, the applicants could successfully request the
guardian's dismissal before a court. In view of the character of the
mission with which the guardian was entrusted and in view of the
urgency which was considered to be involved, the Commission accepts
that the decision was taken without the applicants having been heard.
164. Having regard to these particular circumstances the Commission
finds no appearance of a violation of Article 6 (Art. 6) of the Convention.
Conclusion
165. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in
relation to the appointment of the guardian ad litem on 17 July 1987.
f. Length of the proceedings concerning the appointment of
a guardian ad litem
166. On 12 February 1988 the District Court appointed a guardian ad
litem to represent Helena and Thomas in the proceedings relating to
the prohibition on removal. The request for the appointment of the
guardian was introduced on 27 October 1987 by the Social Council and
the proceedings terminated on 8 November 1988 when the Supreme Court
refused the applicants leave to appeal (paras. 30-31).
167. The Commission considers that the duration of these
proceedings, which involved three levels of jurisdiction, did not
exceed a "reasonable time" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
Conclusion
168. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention as
a result of the duration of the proceedings relating to the
appointment of a guardian ad litem.
F. Article 13 (Art. 13) of the Convention
169. Article 13 (Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
170. The applicants complain that they did not have an effective
remedy in respect of the restrictions on access and in respect of the
decision of 17 July 1987 to appoint a guardian ad litem.
171. Article 13 (Art. 13) guarantees the availability of a remedy
at national level to enforce the substance of the Convention rights
and freedoms in whatever form they may happen to be secured in the
domestic legal order. However, Article 13 (Art. 13) does not require
a remedy in respect of any supposed grievance under the Convention.
The grievance must be an arguable one in terms of the Convention (Eur.
Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no 131,
p. 23, para. 52).
a. The claim in respect of the restrictions on access
172. Having regard to its conclusion above under Article 6 para. 1
(Art. 6-1) (para. 134), the Commission considers that it is not
necessary to examine the case under Article 13 (Art. 13). The
requirements of Article 13 (Art. 13) are less strict than, and are
here absorbed by those of Article 6 para. 1 (Art. 6-1) (see inter alia
Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,
Series A no 46, p. 31, para. 88).
Conclusion
173. The Commission concludes, by a unanimous vote, that it is not
necessary to examine whether there has been a violation of Article 13
(Art. 13) of the Convention in respect of the restrictions on access.
b. The claim in respect of the guardian ad litem
174. Even assuming that Article 13 (Art. 13) of the Convention
could apply in regard to the claim of a violation of Article 6 para.
1, the Commission finds that the applicants cannot be said to have an
"arguable claim" of a violation of Articles 6 or 8 (Art. 6, 8) of the
Convention solely on account of their claim with regard to the
appointment of a guardian ad litem on 17 July 1987.
Conclusion
175. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention in respect
of the appointment of the guardian ad litem.
G. Recapitulation
176. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 8 (Art. 8) of the Convention on the ground
that the restrictions on access were not "in accordance with the law"
(para. 113).
177. The Commission concludes, by 17 votes to 3, that there has been
a violation of Article 8 (Art. 8) of the Convention with regard to the
prohibition on removal (para. 130).
178. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on
the ground that the applicants did not have access to court to
challenge the restrictions on access (para. 134).
179. The Commission concludes, by 14 votes to 6, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention as
a result of the duration of the proceedings concerning the termination
of the care orders (para. 147).
180. The Commission concludes, by 19 votes to 1, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention
with regard to the duration of the proceedings under Chapter 21 of the
Parental Code (para. 151).
181. The Commission concludes, by 19 votes to 1, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention on
the ground that the Supreme Administrative Court did not hold a
hearing on the applicants' appeal concerning the prohibition on
removal (para. 161).
182. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in
relation to the appointment of the guardian ad litem on 17 July 1987
(para. 165).
183. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention as
a result of the duration of the proceedings relating to the
appointment of a guardian ad litem (para. 168).
184. The Commission concludes, by a unanimous vote, that it is not
necessary to examine whether there has been a violation of Article 13
(Art. 13) of the Convention in respect of the restrictions on access
(para. 173).
185. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention in respect
of the appointment of the guardian ad litem (para. 175).
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)
Partly dissenting opinion of Mr. Trechsel
joined by MM. H.G. Schermers and J.-C. Geus
While in agreement with all the other opinions expressed by
the Commission, I regret to disagree with the conclusion regarding the
violation of Article 8 contained in para. 130 with regard to the
prohibition on removal.
If this case is examined exclusively from the angle of the
applicants, the conclusion of the majority certainly merits approval.
However, I am afraid that the majority of the Commission does not have
sufficient regard to the interests of the children. As I read the
file, Helena and Thomas were strongly opposed to the idea that they
should leave their foster parents and return to live with the
applicants. They do not seem to have been eager even for loose contact
with their natural parents. It has also been stated by the Social
Council on 23 June 1987 that removal would involve "a risk, which was
not of a minor nature, of harming Helena's and Thomas' physical and
mental health by separating them from their foster homes" (para. 26).
This was later confirmed by the court.
I admit that the authorities could have reacted more speedily
and that the long period of insecurity put a regrettable strain on all
persons involved. However, I can understand the hesitation of the
authorities between two possible roads: to force contacts in view of
reunion upon the children and the foster parents or to find a solution
in favour of the latter which would disappoint the applicants.
It is true that the authorities may bear some responsibility
for the situation which is the subject of the present Report in that
they had created a situation which made the applicants' access to
their children very difficult. However, these facts have already given
rise to the finding of a violation of the applicants' rights under
Article 8 in the judgment of the Court of 24 March 1988 and should not
be taken into consideration a second time.
For these reasons I have reached the conclusion that, in the
present case, the prohibition on removal, sad as its consequences may
be for the parents, does not constitute a violation of Article 8 of
the Convention.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
23 October 1987 Introduction of the application
3 December 1987 Registration of the application
Examination of the admissibility
14 December 1988 Commission's decision to invite the
Government to submit observations
in writing
27 April 1989 Government's observations
13 June 1989 Applicants' observations in reply
14 September 1989 Government's further observations
27 September, 6 and 13 October, Applicants' further observations
6, 16, 17 and 22 November,
6, 20 and 21 December 1989;
25 and 31 January, 13, 21, 23
and 28 February, 29 March
and 9 April 1990
16 February 1990 Commission's decision to grant legal aid
7 May 1990 Decision to declare the application
admissible
Examination of the merits
7 May 1990 Commission's deliberations on the merits
18 May 1990 Transmission to the parties of the
text of the decision on admissibility
19 June 1990 Applicants' further observations
19 September 1990 Government's further observations
7 July, 8 December 1990 Commission's consideration of the
and 2 March 1991 state of proceedings
9 and 17 April 1991 Commission's deliberations on the
merits, final votes and adoption of
the Report