Lexploria

Application No. 12963/87

Margareta and Roger ANDERSSON

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 3 October 1990)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-14) ........................... 1

A. The application

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

B. The proceedings

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

C. The present Report

(paras. 11-14) ................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 15-76) ............ 3

A. The particular circumstances of the case

(paras. 15-63) ................................... 3

B. Relevant domestic law

(paras. 64-76) ................................... 17

III. OPINION OF THE COMMISSION (paras. 77-119) ............ 22

A. Complaints declared admissible

(para. 77) ....................................... 22

B. Points at issue

(para. 78) ....................................... 22

C. Article 8 of the Convention

(paras. 79-104) .................................. 22

a. Whether there was an interference with the

the applicants' right to respect for their

family life (paras. 85-88) ................... 23

b. Whether the interference was "in accordance

with the law" (paras. 89-102) ................ 24

c. The purpose and necessity of the interference

(para. 103) .................................. 26

D. Article 13 of the Convention (paras. 105-118) .... 27

a. Margareta Andersson (paras. 108-110) ......... 27

b. Roger Andersson (paras. 111-118) ............. 28

E. Recapitulation (para. 119) ....................... 29

Partly dissenting opinion of Mr. H.G. Schermers

joined by Mrs. G.H. Thune ................................. 30

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 31

APPENDIX II: DECISION ON THE ADMISSIBILITY ............... 33

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 first applicant is a Swedish citizen, born in 1951. She

is a nurse. The second applicant is the first applicant's son and a

Swedish citizen. He was born on 23 July 1974. Both applicants are

resident at Nybro, Sweden. 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 restrictions of access and other

contacts, notably correspondence and telephone communications, between

the applicants when the second applicant was in public care. The case

raises issues under Articles 8 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 13 February 1987 and registered

on 25 May 1987. The Commission decided on 12 October 1988, in

accordance with Rule 42 para. 2 (b) of its Rules of Procedure, 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 with regard to the complaints under Article 8 of the

Convention except for the justification of the care order as such.

The Government's observations were dated 8 February 1989 and

the applicants' observations in reply were dated 31 March 1989.

6. On 10 July 1989 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application. On

8 September 1989 the Commission granted legal aid to the applicants.

7. At the hearing, which was held on 10 October 1989, the

applicants were represented by Mrs. Siv Westerberg. The applicants

were also present at the hearing.

The Government were represented by their Agent, Mr. Carl

Henrik Ehrenkrona, and as adviser Mrs. Birgitta Ganting, legal adviser

at the Ministry of Health and Social Affairs.

8. Following the hearing the Commission, on 10 October 1989, declared

admissible the complaints relating to the prohibition on access,

including contacts by telephone and correspondence, and the absence of

an effective remedy with regard to these restrictions (Articles 8 and

13 of the Convention).

The Commission also decided not to take any further action in

respect of the alleged interference with the effective exercise of the

right of individual petition, and declared the remainder of the

application inadmissible.

9. On 20 November 1989 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 in

the light of a list of questions put by the Commission. The

applicants submitted observations by letter dated 22 December 1989 and

the Government by letter dated 11 January 1990.

10. 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

11. 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

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil Hall

The text of the Report was adopted by the Commission on

3 October 1990 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

12. 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.

13. 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.

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

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

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

15. On 5 June 1985 the chairman of the Social Committee No. I of

the Social Council (socialnämndens socialutskott I, hereinafter "the

Social Council) of Växjö decided that Roger Andersson (the second

applicant) should be taken into public care on a provisional basis

under Section 6 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") and that during the period

of investigation he should be placed at the Children's and Juveniles'

Psychiatric Clinic at Växjö. The provisional care decision was based

on a report of 5 June 1985 made by the social authority of Växjö. From

the report it appears that the applicants were under observation by

the social authorities since Roger was born. When he started school

in 1981 it was observed that his general adjustment and social

maturity were insufficient. He was shy, inhibited and insecure.

Margareta Andersson (the first applicant) refused to accept the

measures proposed by the social authorities to help Roger. She moved

from Växjö to Nybro. The report concluded that the serious

disturbances in Roger's state of health and in his development, in

connection with Margareta Andersson's behaviour, indicated that he had

been treated in a mentally harmful manner for a considerable period of

time. He was considered to be in immediate need of care on account of

an increasingly serious risk to his health and development. It was

also feared that Margareta Andersson would seriously impede the

continued investigation.

16. On 11 June 1985 the social authorities decided to prohibit

contact between the applicants pending the decision of the County

Administrative Court (länsrätten) of Kronoberg County on the care

issue. However, some contact by telephone was permitted. The

modalities were to be fixed by the responsible doctor. The

prohibition was to be reviewed as soon as it could be considered not

to be harmful to Roger to have contact with his mother. Margareta

Andersson appealed against the decision to the County Administrative

Court.

17. The provisional care order was submitted for confirmation to

the County Administrative Court, which upheld it on 14 June 1985,

giving inter alia the following reasons:

"From the investigation in the case it appears inter alia

that Roger's behaviour in school has been reserved and

inhibited and that he has isolated himself from his

schoolmates. During the spring term 1985 he has been absent

from school to a great extent and from 3 May he has

completely failed to attend. Extensive help and support

have for a long time been offered to Margareta Andersson.

She has refused to accept it. When the social authorities

of Växjö contacted the Children's and Juveniles' Psychiatric

Clinic at Växjö, Roger and Margareta Andersson moved to

Nybro. The schools of Växjö and Nybro have expressed strong

concern about Roger's mental health. Considering this and

the statement made by Deputy Chief Doctor Mauri Rautavuori,

the County Administrative Court finds that there are such

deficiencies in the care of Roger that it is probable that

care will be provided for him under Section 1 second

paragraph 1 of the 1980 Act and that a court decision on

public care cannot be awaited considering the risk to

Roger's health and development as well as the fact that the

continued investigation may be seriously obstructed."

18. In a judgment given on the same day the County Administrative

Court upheld the decision of 11 June 1985 to prohibit contact between

the applicants. The Court's judgment was based on a statement made by

the expert witness Deputy Chief Doctor Mauri Rautavuori of the

Children's and Juveniles' Psychiatric Clinic. He stated that

Margareta Andersson felt more agony and anxiety than Roger in the

situation they were in. He considered it necessary to control her

contact with Roger as it would be too dramatic for Roger if she was

allowed to visit him. It was so painful for Margareta Andersson to be

separated from Roger that she could not cope with the situation. She

needed as much help as Roger and he must not be given the task of

taking care of his mother. Doctor Mauri Rautavuori concluded that a

prohibition of access was necessary as long as Margareta Andersson was

in such a bad condition.

19. Margareta Andersson appealed to the Administrative Court of

Appeal (kammarrätten) of Jönköping, which rejected the appeal in a

judgment of 27 June 1985. She made a further appeal to the Supreme

Administrative Court (regeringsrätten), which on 26 July 1985 refused

leave to appeal.

20. On 28 June 1985 the Social Council applied to the County

Administrative Court for a decision that Roger be taken into public

care pursuant to Section 1 second paragraph 1 of the 1980 Act. The

application was based on a report of 20 June 1985 made by the social

authority. The Court held a hearing and by a judgment of 17 July 1985

granted the Social Council's application, giving inter alia the

following reasons:

"From the investigation in the case it does not appear that

there is any reason to criticise the manner in which

Margareta Andersson manages her home. As far as it can be

ascertained, the material conditions are satisfactory.

However, the investigation shows that the conditions in the

home are likely to jeopardise a young person's emotional and

social development. Before the County Administrative Court

Margareta Andersson has expressed the view that the

information in the Social Council's application is

essentially incorrect. In view of the investigation of the

case, Margareta Andersson must hereby be considered to

confirm the allegation that she is unable to understand

Roger's situation. It has clearly appeared from Roger's

behaviour that his social and emotional development is

deranged. It is therefore essential for Roger to receive

help and support to overcome his problems. In view of

Margareta Andersson's attitude it is not likely that the

necessary measures can be taken by her or with her approval.

The task of rehabilitating Roger must therefore be entrusted

to the social authorities. The Social Council's application

shall therefore be granted."

21. Margareta Andersson appealed against the judgment to the

Administrative Court of Appeal.

22. On 15 July 1985 Roger ran away from the Children's and

Juveniles' Psychiatric Clinic at Växjö where he had been placed when

provisionally taken into care. He returned to the Clinic on

27 August 1985 and was brought home on 3 September 1985 after

Margareta Andersson had made a written agreement of 26 August 1985

with the Social Council that the public care of Roger should be

carried out in her home. The agreement contained provisions

concerning the care of Roger and the social authority's measures of

assistance to the applicants. As a result of this agreement,

Margareta Andersson withdrew her appeal to the Administrative Court of

Appeal.

23. As from March 1986 Roger did not attend school and on

28 April 1986 the Chairman of the Social Council decided to place him

at the Children's and Juveniles' Psychiatric Clinic pending his

transfer to a foster home. The Social Council decided on 22 May 1986

to place Roger in a foster home at Glimåkra.

24. On 29 April 1986 Roger was taken to the Clinic and on

13 May 1986 he ran away. He was brought back to the Clinic by the

police on 5 August 1986.

25. Margareta Andersson appealed to the County Administrative

Court against the decision to place Roger in a foster home. The Court

held a hearing at which she was present and assisted by counsel under

the Legal Aid Act (rättshjälpslagen) and Roger was represented by

official counsel (offentligt biträde). The Court rejected the appeal

by a judgment of 19 August 1986, in which it stated:

"Margareta Andersson has stated inter alia the following:

She has now realised that Roger's development could be at

risk. The risk is not as serious as to warrant placing him

in a foster family. The deficiencies are not only due to

her. She has endeavoured to make Roger go to school but he

has not received enough support from the school. Kristina

Wintler, the home therapist, has not succeeded in

establishing any contact with Roger. She and Roger have

felt that Kristina Wintler was more controlling than helping

them. Roger's needs would be satisfied in a better way with

a male home therapist with technical interests. After

having been fetched by the police Roger is upset and angry

with the authorities. Roger will not remain in the foster

home. Most of what is stated in the investigation report

made by the social secretary, Rolf Olsson, is untrue. This

summer she has rented a summer-house and has been out

camping with Roger, after he absconded from the Children's

and Juveniles' Psychiatric Clinic. Roger has been calm and

harmonious and has been seeing two children of his own age.

The reason why she and Roger have stayed away during the

summer is that Roger needs his summer holiday. If he had

not had it he would have made up for it by not attending

school in the autumn. The Social Council states that the

home where Roger is to be placed is a private home for care

and residence. It is a very qualified home where the

spouses professionally take care of children. The wife is a

trained social pedagogue and the husband has general

practical experience. They get support from the Children's

Psychiatric Clinic at Kristianstad and from the officials

of the social authority at Broby. The home is situated

at Glimåkra where the spouses live in an old farm.

The Deputy Chief Doctor of the Children's and Juveniles'

Psychiatric Clinic at Växjö, Mauri Rautavuori, heard as an

expert witness, has stated inter alia the following: Roger

is very reserved and careful in his contacts with the

personnel at the Clinic. However, it is easier for the

personnel to get their questions answered now than it was

when Roger stayed at the Clinic one year ago. Roger has not

developed like a normal twelve-year-old boy. He has very

little experience of close social contact with children of

his own age. He has not got a profound basis for further

developing his personality. There is a considerable risk

that Roger develops feelings of inferiority and also a risk

of anti-social behaviour and of symptoms of dependence that

can lead to psychotic behaviour. Margareta Andersson is

tied by Roger's demands and Roger is the one who decides.

Roger has got a potential for development in another home.

To let Roger return home would not be a solution. Margareta

Andersson has tried to manage Roger but has not succeeded in

spite of the help she has received. The only way to help

Roger, so that he can take the responsibility for his own

life and his own behaviour, is to place him in another family.

Kristina Wintler, heard as a witness, has stated inter alia

the following: She has worked as a home therapist in the

Andersson family since autumn 1985. On the average she has

spent approximately four hours a day from Monday to Friday

in the home. Her main task was to ensure that Roger went to

school by taking him there. However, this did not work and

her contribution became directed to what she could do in the

home. Margareta and Roger Andersson were reserved towards

everyone and it was difficult to involve them in any

activity. She never got any real contact with Roger.

Sometimes she could come close to him when he was interested

in something. Maybe it would have been better to have a

male home therapist. Roger had the power at home. When she

intervened against Roger, Margareta Andersson interfered.

Margareta Andersson cannot cope with the situation when she

is alone with Roger. She tried but did not succeed. The

school declares that nothing more can be done about Roger's

situation. Although there was a conference concerning Roger

every week during the autumn term 1985 and the beginning of

the spring term 1986 nothing could be done to help him.

The County Administrative Court makes the following

assessment. During the time Roger has stayed at home he has

been the object of extensive care measures which have not

led to the intended result. Margareta Andersson has not,

with the help she has received, managed to give Roger the

care he needs. In order to let Roger develop favourably he

must be placed in another home. The change in the care of

Roger that has been decided by the Social Council must be

considered to be in Roger's best interest. The appeal shall

therefore be rejected."

26. On 23 August 1986 Roger was transferred to the foster home at

Glimåkra.

27. Margareta Andersson appealed to the Administrative Court of

Appeal of Jönköping. The Court held a hearing on 16 September 1986,

at which Margareta Andersson was present and the applicants were

represented in the same way as in the County Administrative Court.

The Administrative Court of Appeal in its judgment of 17 October 1986

rejected the appeal while making the following assessment:

"According to Section 11 paragraph 2 of the 1980 Act

the Social Council can let the child stay in his own home,

if this is considered to promote his care. Roger has

been taken into care according to the 1980 Act because the

conditions in Margareta Andersson's home were unsuitable for

him and because of Margareta Andersson's inability to give

him the care and security he needed. In spite of this the

Social Council let Roger return to Margareta Andersson's home

after only a short stay at the Children's and Juveniles'

Psychiatric Clinic, be it with intensive measures of

support. He was thereafter permitted to stay there for

approximately one year. During this time Margareta Andersson

has had the opportunity of showing that Roger could be given

the support he needed for his development at home. However,

no change has occurred, which has been shown particularly by

the school situation.

It is evident that Roger must be given the opportunity of

developing under other conditions. Care in a qualified foster

home should be envisaged in the first place, as Roger would

then have better possibilities to develop normal social

relations and build up his own identity. The Social Council

therefore had good reasons for their decision to transfer

Roger from Margareta Andersson's home."

28. Margareta Andersson appealed to the Supreme Administrative

Court which, by a decision of 19 December 1986, refused leave to

appeal.

29. In the meantime, on 6 August 1986, the social welfare officer

in charge of the applicants' case decided under Section 16 (1) of the

1980 Act to prohibit access between the applicants. The decision

reads inter alia as follows:

"Since it is considered necessary in view of the purpose of

the care, the undersigned officer in charge, having been

duly authorised by (the Social Council) and pending (the

Council's) meeting, has decided that prohibition of access

between (the applicants) under Section 16 (1) of the 1980

Act shall apply as from today and until further notice.

The decision shall be reviewed as soon as personal contact

between the mother and the child is no longer considered to

be harmful to the child."

30. On 21 August 1986 the Social Council decided

"in accordance with Section 16 (1) of the 1980 Act that

prohibition of access should apply between the applicants

until further notice and awaiting that suitable access could

be arranged without involving harm to the child."

31. The basis for the decision was a report of 15 August 1986 made

by the social authorities of Växjö. From the report it appears that

Margareta Andersson's own behaviour and Roger's reactions with regard

to her behaviour were decisive when the prohibition of access was

issued. It was noted that Roger had twice run away from the

Children's and Juveniles' Psychiatric Clinic, that Margareta Andersson

had been involved in these incidents and that she had made statements

about leaving the country or moving away to some place unknown to the

authorities to avoid being persecuted. It was deemed necessary, for

the time being, to prevent her from seeing Roger. It was found that

she had not been co-operative in any way while Roger stayed at the

Clinic. When she was refused contact with him she had instead given

him money and written messages telling him that she would soon help

him to escape from the Clinic or, if he did not succeed, from the

foster home at Glimåkra. Money and such messages were hidden among

clothes and other things she brought to Roger. In the report it was

said that, if the purpose of the care was to be achieved, it was

necessary to temporarily prevent Margareta Andersson completely from

having "any form of contact with Roger".

32. Margareta Andersson appealed to the County Administrative

Court requesting the prohibition of access to be revoked and

claiming the right to speak to Roger on the telephone.

33. The Court held a hearing at which Margareta Andersson was

present and assisted by counsel. By a judgment of 12 September 1986,

the Court decided not to examine the appeal insofar as it concerned

the prohibition of telephone communications and to reject the

remainder of the appeal. The reasons of the Court read as follows:

"Margareta Andersson has stated inter alia the following:

The prohibition of access decided by the Social Committee

goes beyond what is necessary to carry out the care. The

decision was taken before Roger was transferred to Glimåkra.

The conditions have changed now that Roger is living at

Glimåkra. There is no indication that she has a negative

influence on Roger. She has not interfered with the present

care and she has not tried to sabotage the measures now

taken. The resentment she has shown is based on the fact

that she does not understand why there has to be any care.

It is true that the bags with clothes that she gave Roger

when he stayed at the Children's and Juveniles' Psychiatric

Clinic contained money and a card with a message that she

would help him to leave the place. This does not mean that

she encouraged him to run away. It was her way of telling

Roger that by appealing against the care decision she would

try to get him home. Roger has a lot of difficulties in the

foster home at Glimåkra. When speaking with the foster home

over the telephone she has been informed that Roger sits

alone in his room crying. He wants to go home. Moreover he

is being used as domestic help there. He has to wash up and

clean.

The Social Council has stated that, in view of what has

happened in the case, it has been necessary to prohibit

access. This includes a prohibition for Margareta Andersson

to speak to Roger on the telephone. The Council has done a

lot to get closer to Margareta Andersson and to create an

effective co-operation with her. This has not been

successful. They do not wish to risk that the new efforts

fail. The Children's and Juveniles' Psychiatric Clinic has

emphasised that a failure could involve a considerable risk

to Roger. Statements made by Margareta Andersson show that

she is prepared to take Roger away. Roger is developing

well in the foster home. The Council's aim is to improve the

co-operation with Margareta Andersson. The intention is

that at least one month should pass after the transfer

before there is any contact between Margareta Andersson and

Roger. If a suitable agreement can be made with Margareta

Andersson the Council intends to let her see Roger at the

forthcoming turn of the months September/October.

The County Administrative Court makes the following

assessment. The decision to take Roger into public care

under the 1980 Act and his transfer to Glimåkra are based on

the fact that Margareta Andersson has been unable to give

Roger the care he needs. On two occasions, when Roger has

been staying at the Children's and Juveniles' Psychiatric

Clinic at Växjö, he has run away and with the help of

Margareta Andersson managed to stay away for long periods of

time. During Roger's last stay at the Children's and

Juveniles' Psychiatric Clinic Margareta Andersson tried to

give him a message which, in his eyes, must have implied

that she would take him away from the Clinic. Considering

what has been mentioned above and that the care that has

just started should continue without interruptions and that

Margareta Andersson should not influence Roger, the County

Administrative Court finds that the Social Council has

good reasons for its decision to prohibit access. However,

if a functioning co-operation with Margareta Andersson can

be achieved, a meeting should take place between Margareta

Andersson and Roger as planned by the Social Council.

According to Section 20 paragraph 3 of the 1980 Act a

decision of the Social Council may be appealed to the County

Administrative Court when the Council has decided about

access to the child under Section 16. The County

Administrative Court finds that the Social Council, by

prohibiting telephone contact with Roger, has limited

Margareta Andersson's access according to Section 11 of the

Act. According to Section 20 of the Act such a decision

cannot be appealed."

34. Margareta Andersson appealed to the Administrative Court of

Appeal, which rejected the appeal in a judgment of 11 November 1986 on

the following grounds:

"According to Section 16 of the 1980 Act, the Social Council

may restrict the guardian's right of access to the child,

when it is necessary in order to carry out the care. Such a

restriction may concern a prohibition of correspondence or

telephone communications between the parent and the child as

well as keeping the place of residence of the child secret.

When the provision is applied the aim should be not to

restrict the right of access more than is absolutely

necessary.

The appealed decision to prohibit access includes, according

to the Social Council's statement at the hearing before the

County Administrative Court, a prohibition of correspondence

and of telephone communications. The entire decision is

based on Section 16 of the Act. The County Administrative

Court should therefore have examined those parts of the

decision which concerned prohibition of correspondence and

of telephone communications. Margareta Andersson's appeal

should accordingly be examined with respect to the

restriction as a whole.

In the judgment of the County Administrative Court, which

was upheld by the Administrative Court of Appeal, it was

decided that Roger should be transferred from his mother's

home to a foster home. The care outside the parental home

is aimed at solving Roger's problems and at removing the

deficiencies which prevailed at Margareta Andersson's home.

During the care period the Social Council shall in principle

try to maintain contact between Roger and Margareta

Andersson, but it can be forced by the circumstances to

restrict contact under the above-mentioned Section of the

Act.

From the documents and from the investigation in the case,

carried out before the judgment of the Administrative Court

of Appeal mentioned above, it appears that Margareta

Andersson lacks understanding for Roger's need of care and

that she is opposed to Roger being placed outside her home.

Margareta Andersson has prevented earlier attempts to place

Roger away from home by fetching Roger and by staying with

him in a place unknown to the authorities. What happened

during her last meeting with Roger as well as what she has

stated before the Administrative Court of Appeal give reason

to presume that she will not accept that Roger remain in the

foster home.

It is an absolute condition for the success of the care in

the foster home that Roger feels secure when staying there.

The foster parents must furthermore be given the possibility

to deal peacefully with Roger's problems. As soon as

Margareta Andersson is able to accept the care that is being

provided and the transfer to the foster home and is able to

participate in the care, she should have the opportunity of

seeing Roger. However, Margareta Andersson has shown that

for the time being she is not prepared to take part in the

care in this way. In these circumstances there are good

reasons for the decision of the Social Council to prohibit

access, including the prohibition of correspondance and of

telephone communications."

35. Margareta Andersson appealed to the Supreme Administrative

Court, which refused leave to appeal in a decision of 19 December 1986.

36. Roger fell ill with diabetes in the beginning of 1987 and was

placed in a hospital for care. He stayed in the hospital from 3 until

25 February 1987. The applicants allege that, on 19 February 1987,

when Margareta Andersson, after several requests, finally obtained the

right to visit Roger in the hospital, she was thrown out from the

hospital by force by the foster father who had arrived while she was

there.

37. In a memorandum of 4 March 1987 by the responsible social

welfare officer it is said that Margareta Andersson had on two

occasions visited Roger at the home of Mr. and Mrs. Helgesson (the

extra foster family - cf para. 41). It is further stated that:

"The modalities of the contacts until further notice are

that they shall take place at the couple Helgesson's home;

that the (foster father) should be present during the visits

and that Kristina Wintler... participates. The prohibition

covers telephone communications and correspondence.

Margareta Andersson has the possibility at certain times of

the week to have telephone contact with Roger's doctor and

with Mrs. Helgesson. She also has telephone contact with

(the foster father). Letters from Margareta to Roger shall

first be scrutinised by (the foster father)... The

doctors... where Roger is cared for... have been... told

that Margareta may not visit Roger alone..."

38. Margareta Andersson submitted a request to the Social Council

that, in the first place, the care of Roger be terminated and, in the

second place, there be no restriction of the right of access. The

Social Council rejected the request on 9 April 1987. It stated inter

alia that:

"continued prohibition of access, under Section 16 (1) of

the 1980 Act, shall apply until suitable access can be

arranged without harm to the child".

39. Subsequently, in a decision of 14 May 1987, the Social Council

stated that its previous decision:

"could be interpreted to mean that a total prohibition of

access applied. This was not the case, as appeared from the

investigation on which the decision was based - a

prohibition of access does not apply, but access shall be

restricted."

40. The Council then decided that continued restrictions of access

should apply and the meetings between the applicants should be planned

and carried out with the assistance of the social authority in Växjö.

The meetings should take place at the spouses Helgesson's home at

Sibbhult and the foster father should be present at the meetings.

41. The Social Council's decisions were based on a report by the

social authority of 30 March 1987. According to the report, the

supplementary foster home which was linked to Roger's foster home

should function as support and as a supplementary family and enable

Margareta Andersson and Roger to meet there without disturbing the

work of the regular foster family. A special assistant was employed

to work in the foster home. Furthermore, a supervisory contact was

established with the Children's and Juveniles' Psychiatric Clinic at

Kristianstad. Roger was initially taught in the foster home but was

gradually transferred to school. Margareta Andersson met Roger in the

supplementary foster home on a few occasions during the autumn of

1986. Immediately after one of these meetings Roger tried to run

away.

42. Margareta Andersson appealed against the decisions of 9 April

and 14 May 1987 to the County Administrative Court, requesting, in the

first place, that the public care be terminated and, in the second

place, that there be no restriction of access.

43. The County Administrative Court held a hearing on 21 May 1987

at which Margareta Andersson was present and assisted by counsel and

Roger was represented by official counsel. At the request of the

Social Council the foster father, Henry Meijer, was heard as a witness

and, at Margareta Andersson's request, Mats Eriksson, the home

therapist in the foster home, was also heard. The Court gave judgment

on 1 June 1987, in which it rejected the appeal. It amended the Social

Council's decision by providing that only the spouses Helgesson were

to be present at the meetings between Roger and Margareta Andersson.

The following reasons were given:

"Roger has been in public care under the 1980 Act since 17

July 1985. After an initial stay at a Child Psychiatric

Clinic Roger was allowed to stay at home for almost eight

months. Since 23 August 1986 he has been staying in the

foster home at Glimåkra. The decision on public care as

well as the subsequent decision to transfer Roger are based

on Margareta Andersson's inability to provide the care and

security that Roger needed. During Roger's stay at home he

was the object of qualified supportive measures without any

change being accomplished. Roger now stays in a qualified

foster home. During his stay there he has changed in a

noticeable and favourable way. He has become considerably

more open. He takes part in the school teaching and travels

to school and back on his own. He visits the kindergarten

and takes part in its activities. He has a friend with whom

he associates. All this confirms the previous assessments

that Margareta Andersson has been unable to give Roger the

care he needed and that public care under the Act was

necessary. Apparently Margareta Andersson has not wanted to

understand Roger's favourable development. The picture she

gives of the foster home and the way Roger is treated there

is completely without nuances and in the County

Administrative Court's view incorrect. There is no

indication that Margareta Andersson is more capable of

taking care of Roger now than at the time when he was taken

into care or at the time when he was transferred to the

foster home. To interrupt the care and Roger's favourable

development would be clearly harmful to him. The conditions

are not such that the care can be terminated.

Concerning the restriction of the right of access the Social

Council has stated that there is no restriction as to how

many meetings can be arranged. The restriction also

includes a prohibition of contact by letters or telephone.

According to Section 16 of the 1980 Act the Social Council

may restrict the guardian's right of access, when this is

necessary in order to carry out the care of the child. When

applying this provision the aim should be not to restrict

the right of access more than is absolutely necessary.

Margareta Andersson has shown at the hearing before the

County Administrative Court that she does not understand

Roger's need for care. Her only aim is Roger's return home.

Her conduct creates a conflict of loyalties for Roger.

Margareta Andersson's actions when Roger ran away from the

Child Clinic at Växjö, Roger's attempt to run away after her

visit to the foster home, and Roger's behaviour when she

visited the hospital at Kristianstad, show that a

restriction of access is necessary for the successful care

of Roger. The County Administrative Court finds that the

Social Council had good reasons to restrict the right of

access including contact by letters or telephone. Margareta

Andersson has stated that she does not intend to visit Roger

if Henry Meijer (the foster father) is present during the

visits. The County Administrative Court finds it important

that the Social Council's decision be modified so as to make

Margareta Andersson visit Roger. This can initially only be

done if Henry Meijer is not present during the visits. In

order to facilitate the establishing of contact no one else

appointed by the Social Council should be present. During

the visit, which is to take place in the spouses Helgesson's

home, it is enough if the spouses Helgesson are present. No

other change should be made in the decision on restriction

of access."

44. Margareta Andersson appealed against the judgment to the

Administrative Court of Appeal. The Court held a hearing on 2 July 1987

at which Margareta Andersson was present and she and Roger were

represented in the same way as in the County Administrative Court. In

a judgment of 10 July 1987 the Administrative Court of Appeal confirmed

the judgment of the County Administrative Court and stated inter alia

the following:

"Public care under the 1980 Act has been provided for Roger

in a judgment that has acquired legal force. The issue in

this case is firstly whether the care should be terminated.

According to Section 5 of the Act the care should be

terminated when it is no longer necessary. In support of

her request Margareta Andersson has, through her counsel,

mainly alleged that the public care interferes with the

provisions of the European Convention for the Protection of

Human Rights and Fundamental Freedoms and accused the social

authorities of false motives and misuse of power. There is

no indication that public care is no longer necessary.

Margareta Andersson's first claim must be rejected. It

should be added that the Administrative Court of Appeal can

only apply Swedish law in force. The extensive criticism of

the system, on which the appellant, through her counsel, has

mainly based her claim, cannot be decisive for the

Administrative Court of Appeal's assessment of whether the

public care should be terminated. The possibilities for

Margareta Andersson to regain the actual care of her son,

which should be the obvious aim, depend on whether she, in

the present situation, can co-operate with the social

authorities and the family with whom Roger is staying.

At the hearing it was said that Margareta Andersson had visited

Roger on 24 June at the spouses Helgesson's home at Sibbhult.

The visit was the first meeting between the two since

February and turned out well. The exact conditions for the

future contacts - as well as the future care - depend to a

great extent on Margareta Andersson's attitude and conduct.

The Administrative Court of Appeal considers that further

successful contact must be established at the home of the

Helgessons before other kinds of contact can be allowed.

Margareta Andersson's second claim is therefore also

rejected.

The Administrative Court of Appeal has no legal competence

to decide where Roger should stay. Since Margareta Andersson

has made serious - although essentially unsubstantiated -

accusations against the foster home at Glimåkra, the

Administrative Court of Appeal considers that the degree of

truth in the accusations should be investigated by the social

authorities as well as the possibility of placing Roger in a

foster home in which Margareta Andersson might have more

confidence."

45. Margareta Andersson appealed to the Supreme Administrative

Court. She complained inter alia that Roger had been refused the

right to receive correspondence from her and other persons. The

Supreme Administrative Court refused leave to appeal in a decision of

20 August 1987.

46. In November 1987 Margareta Andersson again requested, in the

first place, that the care of Roger be terminated and, in the second

place, that there be no restriction of her right of access. The

Social Council rejected the requests on 15 December 1987.

47. Subsequently, on 5 February 1988, the Social Council made a

new decision on Margareta Andersson's right of access to Roger.

According to the decision Roger should visit her at Nybro with the

spouses Helgesson on the following days: 30 January 1988, 27 February

1988, 26 March 1988, 23 April 1988 and 28 May 1988. Between these

visits, Margareta Andersson should be given the possibility of

visiting Roger in the supplementary foster home at Glimåkra. The

Council further decided that the restrictions on contact by

correspondence should be terminated and that, as regards telephone

communications, such communication ought to take place at the

initiative of Roger.

48. Margareta Andersson appealed to the County Administrative

Court requesting, in the first place, that the care be terminated, in

the second place, that it be carried out in her home and, in the third

place, that there be no restrictions on her right of access. The

Court held a hearing on 10 February 1988 at which Margareta Andersson

was represented by counsel and Roger by official counsel. In a

judgment of 17 February 1988 the Court decided to reject the appeal

insofar as it concerned the termination of the public care, not to

examine the request that the care be carried out in Margareta

Andersson's home and to add to the Social Council's decision on access

that Margareta Andersson should have the right to meet Roger at least

twice a month in the spouses Helgesson's home. The Court made the

following assessment:

"The County Administrative Court has previously decided not

to hear Roger as a witness. There are no reasons to depart

from that decision.

The decision on care under the 1980 Act was based on

Margareta Andersson's inability to provide Roger with the

care and security he needed. The issue in this case is in

the first place whether the care should be terminated.

Decisive for this issue is Margareta Andersson's ability to

provide the necessary care for Roger so as to eliminate the

risk that he will relapse into his previous behaviour.

During Roger's stay at Glimåkra a positive change has

occurred while Margareta Andersson's situation as well as

her opinion of the social authorities apparently have not

changed. If the care is discontinued there is a great risk

that Roger will relapse into his previous behaviour, even

though he now seems to be mentally stronger. In view of

this the conditions are not such that the care should be

discontinued.

In a decision of 26 October 1987, the County Administrative

Board of Kristianstad County, in view of previous complaints

about the foster home, found no reason to criticise the

foster father's way of running the activities. The County

Administrative Board decided not to take any further action.

In this case it is the Social Council's task to provide the

care for Roger and it is responsible for the care he

receives and the County Administrative Court may not review

it.

The Social Council has not decided on Margareta Andersson's

request that the care continue in her home. The County

Administrative Court cannot legally decide where Roger shall

stay. Margareta Andersson's request cannot be examined.

Concerning the issue of restriction of access the Social

Council has stated that it intends to assess generously

Margareta Andersson's request to meet Roger at Glimåkra.

Furthermore, the Social Council has stated that the

restriction does not include a prohibition for Margareta

Andersson and Roger to meet in private, but it does mean

that someone from the Helgesson family must be present in

the home where they meet.

In view of Margareta Andersson's previous actions and her

attitude as concerns the care issue, the County

Administrative Court finds that the restriction of access

should continue. Such a restriction should be designed so as

not to prevent a successful contact from being established.

The County Administrative Court finds that the restriction

decided by the Social Council has been so designed. In

order to avoid any possible uncertainty the County

Administrative Court considers it suitable to state that the

meetings in the Helgesson family's home at Glimåkra can take

place at least twice a month. Apart from that, the County

Administrative Court confirms the Social Council's decision

on the right of access. The above shall apply until the end

of the school term in the spring of 1988. Thereafter a new

assessment should be made."

49. On 26 February 1988 Roger was taken to hospital after having

alleged that he had injected an overdose of insulin.

50. Margareta Andersson appealed against the judgment of

17 February 1988 to the Administrative Court of Appeal. The Court

held a hearing on 20 April 1988 and in a judgment of 27 April 1988

decided to terminate the care of Roger. The Court considered that,

although the main reason for Roger's previous behaviour -

Margareta Andersson's inability to provide him with the care and

security he needed - had not been removed, an important part of the

aim sought when he was taken into care had been achieved. Roger now

had good social relations and a certain self-esteem.

51. Roger was discharged from the hospital on 3 May 1988 and

returned directly from hospital to his mother at Nybro where he has

been living since.

Further particulars about the meetings between the applicants

52. During the period from 6 August 1986 to 27 April 1988 the

following meetings took place between the applicants.

53. On 5 October 1986 the applicants met at the home of the

supplementary foster parents. The foster father, the supplementary

foster parents and Kristina Wintler were present.

54. On 30 December 1986 the applicants met at the supplementary

foster parents' home. The foster father, the supplementary foster

parents, Kristina Wintler and Gudrun Olsson from the Social Council

were present.

55. On 19 February 1987, when Roger was in hospital, the

applicants met shortly.

56. On 24 June 1987 the applicants met at the supplementary foster

parents' home in circumstances similar to those of the meeting on 30

December 1986.

57. On 13 July 1987 another similar meeting took place.

58. According to the Government, similar meetings took place on

5 and 20 August 1987.

59. On 28 November 1987 Roger visited Margareta Andersson in her

home at Nybro, together with the supplementary foster parents and

Kristina Wintler.

60. According to the Government, the applicants met in Margareta

Andersson's home together with the supplementary foster parents on 20

December 1987 and 9 January 1988. The applicants contest that these

meetings took place.

61. The Government submit that the applicants met on 30 January

1988 in Margareta Andersson's home.

62. From 27 February to 3 May 1988 Roger was in hospital. During

that period the applicants were allowed to meet and Margareta

Andersson could also stay over night at the hospital.

63. The Government submit that the social authorities' attempts to

arrange further meetings have failed because of Margareta Andersson's

attitude.

B. Relevant domestic law

64. Chapter 2 Section 6 of the Instrument of Government (regerings-

formen) provides:

(Swedish)

"Varje medborgare är... skyddad mot kroppsvisitation,

husrannsakan och liknande intrång samt mot undersökning av

brev eller annan förtrolig försändelse och mot hemlig

avlyssning..."

(English translation)

"Every citizen is... protected against being subjected to

bodily search, search of his home or to similar

encroachments and against scrutiny of letters or other

confidential communication and against eaves-dropping."

65. The 1980 Act contains provisions concerning compulsory care of

children. Section 1 paras. 1 and 2 of the 1980 Act reads:

(Swedish)

"Den som är under 18 år skall beredas vård med stöd av denna

lag, om det kan antas att behövlig vård inte kan ges den

unge med samtycke av den eller dem som har vårdnaden om

honom och, när den unge har fyllt 15 år, av honom själv.

VÃ¥rd skall beredas den unge om

1. brister i omsorgen om honom eller något annat

förhållande i hemmet medför fara för hans hälsa eller

utveckling eller

2. den unge utsätter sin hälsa eller utveckling för

allvarlig fara genom missbruk av beroendeframkallande medel,

brottslig verksamhet eller något annat därmed jämförbart

beteende."

(English translation)

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

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

necessary care cannot be given to the young person with the

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

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

consent of the young person.

Care is to be provided for a young person if

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

home entails a danger to his health or development, or

2. the young person is seriously endangering his health

or development by abuse of habit-forming agents, criminal

activity or any other comparable behaviour."

66. Section 11 of the 1980 Act reads:

(Swedish)

"När ett beslut har fattats om omhändertagande eller om vård

enligt denna lag, bestämmer socialnämnden hur vården av den

unge skall ordnas och var han skall vistas under vårdtiden.

Nämnden får medge att den unge vistas i sitt eget hem, om

detta kan antas vara bäst ägnat att främja vården av honom.

Vård med stöd av denna lag skall dock alltid inledas utanför

den unges eget hem.

Nämnden eller den åt vilken nämnden har uppdragit vården

skall ha uppsikt över den unge och, i den mån det behövs för

att genomföra vården, bestämma om hans personliga

förhållanden."

(English translation)

"When an order for custody or care has been made pursuant to

this Act, the Social Council shall decide how care is to be

arranged for the young person concerned and where he is to

reside during the period of care.

The Social Council may consent to the young person residing

in his own home if this may be presumed the most appropriate

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

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

The Social Council or the person charged with care of the

young person by the Council shall keep the young person

under surveillance and make such decisions concerning his

personal circumstances as are necessary for the discharge of

care."

67. With regard to the nature of the functions entrusted to the

social authorities, the following is said in the preparatory works

(Government Bill 1979/80: 1, p. 596):

"After a decision on public care has been taken the Social

Council has a responsibility besides the parents or in their

place. To the extent necessary for carrying out the care,

it should have the same obligations and authority that

rest with the parents. Like the parents the Council thus

can take the necessary measures to prevent the young person

from harming himself or anyone else. In the same way as

the parents may do, the Council thus may prevent the young

person from running away. Like the parents the Council may

also take decisions on matters concerning the child's

private conditions. This might relate to medical care or

treatment, permission for the young person to travel or to

take a job. In accordance with the principles which in regard to

the carrying out of the public care govern co-operation

between the social authorities and the individual, the

Council should consult the parents in such matters, provided

that the circumstances allow it. The fact that the Council

has taken over the responsibility for the care of the young

person must thus not result in parents being deprived of

all influence. The parents and the young person himself

should as far as possible take part in working out the care.

Thus, it is only insofar as it is necessary for carrying

out the public care that the Council, through the decision

of the County Administrative Court, takes over the parents'

right of determination over the young person."

68. Section 15 of the 1980 Act - which deals with a category of

young persons in public care to which Roger Andersson did not belong -

reads:

(Swedish)

"Den för vilken bestämmelserna i 13 § gäller får underkastas

övervakning av sina brev och andra försändelser, om detta är

påkallat med hänsyn till ordningen vid hemmet eller den

unges särskilda förhållanden. För detta ändamål får den som

förestår vården vid hemmet öppna och ta del av försändelser

som ankommer till eller avsänds från den unge. Om en

ankommande försändelse innehåller något som den unge inte

får inneha, skall detta omhändertas.

Brev mellan den unge och en svensk myndighet eller advokat

eller hans offentliga biträde skall vidarebefordras utan

föregående granskning."

(English translation)

"Letters and other mail sent or received by a person to whom

the provisions of Section 13 apply may be subjected to

examination if this is justified by considerations of order

in the home or by the particular circumstances of the young

person concerned. To this end the person in charge of the care

at the home may open and examine mail arriving for or sent

by the young person. If incoming mail contains any material

which the young person is not allowed to possess, it shall

be sequestrated.

Letters passing between the young person and a Swedish

authority or lawyer or his public counsel shall be

transmitted without prior examination."

69. Section 16 of the 1980 Act reads:

(Swedish)

"Om det är nödvändigt med hänsyn till ändamålet med vård

eller omhändertagande med stöd av denna lag, får

socialnämnden

1. bestämma hur den rätt till umgänge med den unge

som kan tillkomma en förälder eller någon annan som har

vårdnaden om honom skall utövas eller

2. bestämma att den unges vistelseort inte skall röjas för

föräldern eller vårdnadshavaren."

(English translation)

"If it is necessary with regard to the purpose of the care

provided under this Act, the Social Council may

1. decide how the right of access to the young person which

may be enjoyed by a parent or other person who has custody

of him shall be exercised, or

2. decide that the young person's whereabouts may not be

disclosed to the parent or custodian."

70. The following is an extract from the Minister's statement in

the Government Bill concerning Section 16 of the 1980 Act (Government

Bill No. 1979/80:1, Part A, p. 601):

"The Social Council should, when carrying out the care, as

far as possible co-operate with the parents and assist in

maintaining contacts between the parents and the child. As

stated previously, a care decision should not give rise to

other restrictions of the parents' right of access to the

child than those which are necessary in order to carry out

the care. The circumstances might, however, be such that the

parents during the care period ought not to meet the child.

There might for example be a risk that the parents without

authorisation interfere with the care. The parents'

personal circumstances might also, for example after severe

abuse of alcohol or drugs or if they are mentally ill, be

such that they should not at all meet the child.

.... The proposed provisions concerning restrictions of the

right of access should be applied restrictively. The Social

Council should only in exceptional cases keep the child's

residence secret to the parents."

71. It is further stated in the Government Bill (p. 503) that when

the County Administrative Court has decided that a child should be

taken into care the responsibility for the care is passed on to the

Social Council. If the child has been taken into care due to lack of

care for him the Social Council takes over the responsibility for the

care that otherwise falls upon the parents according to the Parental

Code (föräldrabalken).

72. The Standing Social Committee of the Parliament stated in its

report (SoU 1979/80:44, p. 116), inter alia, that it followed from the

Social Council's general competence to decide on the child's

conditions during the care that, in principle, it decided about all

the visits to the child. However, the parents had a special right of

access to the child. It was important that the parents maintained

regular contact with the child. The Committee further said that:

"the circumstances may however be such that the parents

during a certain time or until further notice should not

meet the child".

73. According to general advice (1981:2, LVU, p. 112) from the

National Board for Health and Social Welfare (socialstyrelsen) the

Social Council is empowered under Section 16 to restrict and

completely cut off the parent's access to the child.

74. There exists no decision of the Supreme Administrative Court

concerning the question whether restrictions on correspondence and

telephone communications are possible under Section 16 of the 1980

Act. However, there exists one case reported in the Supreme

Administrative Court's annual report (Regeringsrättens Årsbok, RÅ

1971, p. 283), which relates to the corresponding provision in the

1960 Child Welfare Act (barnavårdslagen) and in which the parents had

been prohibited from enjoying access to their daughter for one year.

The prohibition covered both visits and telephone contacts. In that

case the Supreme Administrative Court rejected an appeal from the

father without giving any specific reasons for the rejection of the

appeal.

75. In cases under the 1980 Act, the child is in principle a party

to the proceedings (talerätt) irrespective of age. Similarly, the

child has a right to appeal against decisions concerning regulations

of the parents' access to the child. However, in order to have the

capacity to conduct proceedings before the courts (processbehörighet)

the child must have attained the age of 15 years. For a child who is

less than 15 years old, the capacity to conduct proceedings on behalf

of the child is vested in the legal guardian (cf. Statens Offentliga

Utredningar, SOU 1987:7 pp. 66-70).

76. Section 19 of the 1980 Act reads:

(Swedish)

"Har den unge fyllt 15 år, har han rätt att själv föra sin

talan i mål och ärenden enligt denna lag.

Barn som är yngre bör höras, om det kan vara till nytta för

utredningen och barnet inte kan antas ta skada av det."

(English translation)

"A young person aged 15 or over is entitled to represent

himself in judicial proceedings and other business under

this Act.

Children below this age should be heard if this may help

the investigation and may not be presumed harmful to them."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

77. The Commission has declared admissible the complaints relating

to the prohibition on access, including contacts by telephone and

correspondence, and the absence of an effective remedy with regard to

those restrictions.

B. Points at issue

78. The principal issues to be determined are :

- whether there has been a violation of Article 8 (Art. 8) of the

Convention;

- whether there has been a violation of Article 13 (Art. 13) of the

Convention with regard to Margareta Andersson;

- whether there has been a violation of Article 13 (Art. 13) of the

Convention with regard to Roger Andersson.

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

79. Article 8 (Art. 8) of the Convention reads:

"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."

80. In accordance with its decision on admissibility (cf. Appendix

II, pp. 33-54) the Commission's examination of the merits of the

present case is limited to the complaints regarding the restrictions

on access which applied from 6 August 1986 to 27 April 1988.

81. The applicants complain that they have been victims of a

breach of Article 8 (Art. 8) of the Convention as their right of access,

including contacts by telephone and correspondence, was restricted.

They allege that this was unlawful since restrictions on

correspondence may only be imposed on children taken into care under

Section 1 second paragraph 2 and third paragraph of the 1980 Act and

only under special circumstances, whereas Roger was taken into care

under Section 1 second paragraph 1 of the 1980 Act.

82. The applicants observe that Chapter 2 Section 6 of the

Instrument of Government protects the individual from interference

with his private correspondence. Consequently the Social Council's

decision cannot be interpreted as including correspondence and

telephone communications. These restrictions did not satisfy the

conditions of foreseeability and accessibility and had no basis in

Swedish law. Moreover, Section 16 of the 1980 Act only empowers the

authorities to regulate access. They may not cut it off completely.

83. The Government submit that the restrictions on access were

justified under Article 8 para. 2 (Art. 8-2) of the Convention.

Section 16 of the 1980 Act authorises the social authorities to

determine on what conditions the custodian's right of access shall be

exercised. In special circumstances it may be necessary to prohibit

all access in order to carry out the care properly. With reference to

the judgment of the Administrative Court of Appeal of 11 November 1986

in the present case, the Government contend that Section 16 covers

total prohibition. This is supported by the fact that under Section

16 (2) the social authorities may even order that the child's

whereabouts should not be disclosed.

84. The Government further submit that under Section 11

of the 1980 Act the social authorities may decide on questions

concerning the child's personal conditions to the extent necessary for

carrying out the public care. As to the nature of this authority the

Government refer to p. 596 of the Government Bill (para. 67). No

mention has however been made in the preparatory works as to whether

there may be restrictions on correspondence and telephone

communications. Moreover, no clear case-law exists. The Government

refer however to a decision of the Supreme Administrative Court taken

under the 1960 Child Welfare Act (para. 74) and to the Supreme

Administrative Court's refusal to grant leave to appeal in the present

case, which must been seen as an indication that it accepted the

interpretation by the Administrative Court of Appeal. The Government

submit that the law and its application must have been clear to the

applicants. They can therefore not be regarded as "victims", within

the meaning of Article 25 (Art. 25), in respect of the requirements of

"foreseeability" and "accessibility" under Article 8 para. 2

(Art. 8-2) of the Convention (cf. para. 89 below).

a. Whether there was an interference with the applicants'

right to respect for their family life

85. The Commission recalls that the mutual enjoyment by parent and

child of each other's company constitutes a fundamental element of

family life. The family relationship is not terminated by reason of

the fact that the child has been taken into public care. When a child

is in public care, Article 8 (Art. 8) in principle guarantees the parent and

the child a right of mutual contact. A decision which denies or

regulates the parent's contacts with the child normally constitutes an

interference with the parent's and the child's right under Article 8

para. 1 (Art. 8-1) (cf. Eur. Court H.R., Olsson judgment of 24 March

1988, Series A no. 130 p. 29, para. 59).

86. The restrictions on access to be examined in the present case

concern the period from 6 August 1986 until 27 April 1988 (cf. paras

29 and 50 above), i.e. a period of more than one year and eight months.

The restrictions included telephone communications and correspondence.

87. The Commission finds, and this is not disputed, that the

restrictions of Margareta Andersson's access to Roger constituted

an interference with their right to respect for family life.

88. 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"

89. The phrase "in accordance with the law" has been analysed by

the Convention organs on several occasions. The Commission recalls

the following general principles.

90. 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, and be in conformity with, such law.

However, the phrase includes 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, the law must be

compatible with "the rule of law". 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., Eriksson judgment of 22 June 1989, Series A no 156, p. 24,

para. 59 and Huvig judgment of 24 April 1990, Series A no. 176, para. 26).

91. The Convention organs' 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).

92. As regards the question whether the interference was "in

accordance with the law", the Commission is called upon to examine

both whether the restrictions were lawful under Swedish law and

whether the Convention requirements as to the quality of the law were

satisfied.

93. The Commission recalls that the Administrative Court of Appeal

found that Section 11 of the 1980 Act was not applicable to the

restrictions at issue and that Section 16 was the relevant provision.

94. The wording of Section 16 suggests that it only authorises the

social authorities to regulate the access but that it does not

entitle them to prohibit access altogether. The Government,

however, consider such a reading of the provision not to be correct

and refer in this respect to Section 16 (2), which authorises the

social authorities to decide not to disclose the whereabouts of the

child. According to the Government, this is a more far-reaching

decision than a prohibition of access, which supports the view that

such a prohibition can also be issued under Section 16. Moreover, the

Government find in the judgment of the Administrative Court of Appeal

of 11 November 1986 a further confirmation of the interpretation

according to which Section 16 makes it possible to prohibit access

altogether when this is required in order to carry out the public care

properly.

95. The Commission cannot find the Government's first argument

convincing. The fact that the social authorities may decide not to

disclose the place where the child is living while in public care does

not mean that it must also be possible to exclude access to the child

since it may well be possible to arrange meetings between parent and

child without revealing the child's normal whereabouts to the parent.

Nor does such a decision necessarily prevent communications by

telephone or correspondence.

96. In the present case, the Swedish courts have interpreted

Section 16 so as to cover also a prohibition of access at least for a

limited period. Such an interpretation is supported by the statement

of the Standing Social Committee that the circumstances may be such

that the parents, for a certain period or until further notice, should

not meet the child (para. 72). In the Commission's view, an

interpretation according to which regulation of access can include a

prohibition of access which, as in the present case, lasted for a

period of two months, can be considered consistent with the wording of

Section 16 and cannot therefore be regarded as unreasonable or

unforeseeable.

97. As to the question whether Section 16 also authorises the

Social Council to restrict telephone communications and

correspondence, the Commission first points out the specific character

of these kinds of contacts compared to access in the form of a meeting

between parent and child. The Commission also finds a considerable

difference between contact by telephone and contact by mail. It would

appear that different considerations would apply in respect of whether

or to what extent it is desirable to regulate one or the other of

these forms of contact.

98. The Commission notes that Section 16 does not expressly

mention telephone communications or correspondence. As the Government

confirm, there seems to be no indication in the preparatory works that

Section 16 of the 1980 Act was intended to empower the social

authorities to regulate telephone communications and correspondence.

Moreover, the Commission has not found, in the corresponding

provisions on access to children in the Parental Code, any support for

the view that telephone communications and correspondence form part of

the legal concept of access (umgänge). One further argument against

the view that Section 16 also deals with correspondence is the fact

that, in respect of a different category of young persons in public

care, Section 15 of the 1980 Act provides for specific restrictions

on correspondence (para. 68).

99. The Government refer to a case in which the Supreme

Administrative Court, in the application of the 1960 Child Welfare

Act, had rejected an appeal against a decision to prohibit a father's

contacts with his daughter by personal visits as well as by telephone

(para. 74). However, the Commission notes that in that case the

Supreme Administrative Court did not give any specific reasons for the

rejection of the appeal. In particular, it does not appear from the

Court's decision that the question of the applicability of the

corresponding provision of the Child Welfare Act to telephone contacts

had been examined in any depth by the Court. In these circumstances,

the Commission does not find it justified to draw any specific

conclusions from that decision. Similarly, no specific conclusion can

be drawn from the fact that in the present case the Supreme

Administrative Court refused leave to appeal against the judgment of

the Administrative Court of Appeal (para. 35).

100. In the present case, the uncertainty about the contents of the

law was combined with a lack of clarity about the scope of the

prohibition which was actually issued by the social authorities. In

the decisions of 6 and 21 August 1986 (paras. 29 and 30), access was

prohibited, but there was no indication that this included telephone

communications and correspondence. According to the judgment of the

County Administrative Court, the Social Council had stated before that

Court that the prohibition included telephone conversations. The

Court, in its judgment of 12 September 1986, accepted this but

considered that the basis for the prohibition against telephone

conversations was Section 11 of the Act. The Administrative Court of

Appeal, in its judgment of 11 November 1986, referred not only to

telephone contacts but also to correspondence which had not been

mentioned in the judgment of the lower court. It referred to a

statement made by the Social Council before the County Administrative

Court to the effect that the Council's decision concerned not only

access but also telephone contacts and correspondence. Unlike the

County Administrative Court, the Administrative Court of Appeal

considered that the prohibition was, also in these parts, founded on

Section 16 of the Act.

101. In the Commission's opinion there can be doubts as to whether

Section 16 of the Act should be regarded as authorising restrictions

in regard to telephone communications and correspondence and, in any

event, whether the requirement of foreseeability is satisfied in this

regard. An important additional element in the present case is the

fact that the social authorities did not make it clear, in their

decisions of 6 and 21 August 1986, that the prohibition of access also

concerned contacts by telephone and correspondence, although they

subsequently declared that their decisions should be so understood.

Even at that later stage it was not clear on what legal basis a

prohibition against such contacts had been issued, which appears from

the fact that the County Administrative Court and the Administrative

Court of Appeal interpreted the legal situation differently.

102. In view of the lack of precision both of the law itself and of

the decisions taken on the basis of that law, the Commission

considers that the restrictions on Margareta Andersson's telephone

contacts and correspondence with Roger were not ordered "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

c. The purpose and necessity of the interference

103. Having regard to the above, the Commission does not find it

necessary to examine whether these two conditions of Article 8 para. 2

(Art. 8-2) were satisfied. The Commission notes in this regard that the

interference in the present case consisted of restrictions both on

access and on telephone communications and correspondence. In these

circumstances it would not be appropriate to examine separately the

necessity of only those restrictions which the Commission has found to

have had a sufficient basis in law (para. 96).

Conclusion

104. The Commission concludes, by a unanimous vote, that there has

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

D. Article 13 (Art. 13) of the Convention

105. 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."

106. The applicants complain that they did not have an effective

remedy in respect of the restrictions on access. The Government

submit that the applicant could have requested before the Social

Council and the Administrative Courts that the restrictions be

discontinued.

107. 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 (Eur. Court H.R., Boyle and Rice judgment of 27

April 1988, Series A no 131, p. 23, para. 52). The word "remedy" does

not mean that the applicant's claim must be vindicated and that the

applicant must be successful if he avails himself of the remedy. It

is sufficient that he has an opportunity for his claim to be examined

(cf. No. 9276/81, Dec. 17.11.83, D.R. 35 p. 13 at p. 21).

a. Margareta Andersson

108. The Commission recalls that Margareta Andersson appealed

against the Social Council's decision of 21 August 1986 arguing inter

alia that she should at least be able to speak to Roger over the

telephone. The County Administrative Court found that is was not

competent to examine the first applicant's appeal insofar as it

related to the prohibition on telephone communications. However, the

Administrative Court of Appeal found that the County Administrative

Court had erred when it refused to examine the appeal against the

prohibition on telephone communications. The Administrative Court of

Appeal therefore examined the full appeal, including the prohibition

of correspondence and telephone communications, and found that the

Social Council's decision should be upheld.

109. The Commission is of the opinion that the appeal which was

thus open to Margareta Andersson before the Administrative Court of

Appeal satisfies the conditions of Article 13 (Art. 13) of the Convention.

Conclusion

110. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 (Art. 13) of the Convention with regard to

Margareta Andersson.

b. Roger Andersson

111. The Commission considers that Article 13 (Art. 13) of the

Convention guarantees to Roger the right to an effective remedy in

respect of the decision to prohibit his mother from having access to

him and from having contacts with him by telephone and correspondence.

The question is whether he had such a remedy under Swedish law.

112. The Commission finds it established that in principle the child

has the right under Swedish law to appeal against a decision under

Section 16 of the 1980 Act prohibiting the parents' access to the

child (para. 75). However, by reason of the fact that he was below 15

years of age, Roger was prevented under Section 19 of the 1980 Act

from lodging, on his own, an appeal before the Administrative Courts.

113. The Commission accepts that a child who is only 12 years of

age, as Roger was at the relevant time, does not have a right under

Article 13 (Art. 13) of the Convention to initiate and conduct

proceedings on his own without a representative.

114. When a child is, or may be, a party to proceedings but has no

right to conduct his own case, because of his age, the child is

normally represented in the proceedings by his legal guardian.

115. It follows that Margareta Andersson, who was and is the legal

guardian of Roger, could have appealed against the prohibition on

access also on behalf of Roger. Consequently, Roger had available a

remedy, which, in view of the Commission's considerations above

(paras. 108 et seq.), satisfied Article 13 (Art. 13) of the Convention.

116. The applicants have objected that Roger had received an

official counsel in the proceedings before the courts, a counsel who

refused to act in accordance with his wishes but instead supported the

line taken by the social authorities. The applicants submit that in

these circumstances Roger had no effective remedy.

117. The Commission observes, however, that the official counsel

did not represent Roger in the proceedings which concerned the

prohibition on access. The fact that in the proceedings regarding

the public care, an official counsel had been appointed could not

prevent Margareta Andersson from representing Roger in the proceedings

now at issue.

Conclusion

118. The Commission concludes, by 10 votes to 2, that there has

been no violation of Article 13 (Art. 13) of the Convention with

regard to Roger Andersson.

E. Recapitulation

119. The Commission concludes, by a unanimous vote, that there has

been a violation of Article 8 (Art. 8) of the Convention (para. 104).

The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 (Art. 13) of the Convention with regard to

Margareta Andersson (para. 110).

The Commission concludes, by 10 votes to 2, that there has

been no violation of Article 13 (Art. 13) of the Convention with

regard to Roger Andersson (para. 118).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Partly dissenting opinion of Mr. H.G. Schermers

joined by Mrs. G.H. Thune

I agree with the Commission's Report on Article 8 and on

Article 13 with respect to Margareta Andersson, but I cannot accept

the conclusion that there has been no violation of Article 13 with

regard to Roger Andersson.

Roger's claim under Article 13 is not entirely clear. As far

as he complains that he had no effective remedy in respect of the

decision to prohibit his mother from having access to him his claim

seems identical to the one of his mother and it may be submitted that

his mother was not only entitled but also able to bring the claim on

his behalf.

However, his claim is not necessarily identical. He may have

other arguments and the effect of the prohibition on him may differ

considerably from the effect on the mother. With respect to his own

claim Roger did not have an effective remedy for the following reason.

As described in paras. 113 and 114 of the Report it must be

accepted that a child of 12 years old must be represented by his legal

guardian in proceedings under Article 13.

An essential element of any representation is contact or at

least a possibility of mutual communication. One cannot lawfully

represent another person with whom one cannot communicate. In the

present case Roger's legal guardian had no possibility to communicate

with him. She might not know possible infringements of human rights

against him and for that reason she was preventd from properly acting

as his legal representative.

As Roger could not contact a representative who could act on

his behalf he had no effective remedy before a national authority

against any infringement of any human right committed against him.

With regard to him Article 13 of the Convention has been violated.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

-------------------------------------------------------------------

13 February 1987 Introduction of the application.

25 May 1987 Registration of the application.

Examination of the admissibility

12 October 1988 Commission's decision to invite the

Government to submit observations

in writing.

8 February 1989 Government's observations.

31 March 1989 Applicants' observations in reply.

10 July 1989 Commission's decision to invite the

parties to a hearing on the admissibility

and merits of the application.

8 September 1989 Commission's decision to grant legal aid.

10 October 1989 Hearing on admissibility and merits. The

parties were represented as follows:

Government: Mr. Carl Henrik Ehrenkrona

Mrs. Birgitta Ganting

Applicants: Ms. Siv Westerberg

The applicants were also present

10 October 1989 Decision to declare the application partly

admissible and partly inadmissible.

Examination of the merits

10 October 1989 Commission's deliberations on the merits

20 November 1989 Transmission to the parties of the text of

the decision on admissibility

22 December 1989 Applicants' further observations

11 January 1990 Government's further observations

10 February and Commission's consideration of the state of

7 July 1990 proceedings

3 October 1990 Commission's deliberations on the

merits, final votes and adoption of the Report.

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ANDERSSON v. SWEDEN

ANDERSSON v. SWEDEN