Lexploria

Application No. 12574/86

Birgitt and Lars Erik NYBERG

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 15 March 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. 15-96) ............ 3

A. The particular circumstances of the case

(paras. 15-76) ................................... 3

a. The first application to the Commission

(paras. 16-18) ............................... 3

b. The request for extended access

(paras. 19-25) ............................... 3

c. The request that the care be terminated

(paras. 26-29) ............................... 4

d. The prohibition on removal

(paras. 30-33) ............................... 5

e. The first decision of the Parliamentary

Ombudsman (paras. 34-35) ..................... 10

f. The proceedings relating to the transfer of

the legal custody of Björn, the enforcement

proceedings and the new decision to prohibit

the applicants from removing Björn

(paras. 36-53) ............................... 11

g. The incident in the Federal Republic of

Germany (paras. 54-63) ....................... 15

h. The second decision of the Parliamentary

Ombudsman (paras. 64-71) ..................... 16

i. Further particulars concerning the contacts

between the applicants and Björn

(paras. 72-76) ............................... 18

B. Relevant domestic law

(paras. 77-96) ................................... 19

a. The Social Services Act and the 1980 Act

with Special Provisions on the Care of

Young Persons (paras. 77-92) ................. 19

aa. Compulsory care (paras. 78-86) .......... 19

bb. Prohibition on removal (paras. 87-92) ... 21

b. The Parental Code (paras. 93-96) ............. 23

III. OPINION OF THE COMMISSION (paras. 97-172) ........... 25

A. Points at issue

(para. 97) ....................................... 25

B. Article 8 of the Convention

(paras. 98-144) .................................. 25

a. The period when the care order was in force

(paras. 103-109) ............................. 27

b. The period when the prohibition on removal

was in force (paras. 110-142) ................ 28

aa. Whether there has been a lack of respect

for the applicants' family life

(paras. 110-112) ........................ 28

bb. Whether there has been an interference

with the exercise of the applicants'

right to respect for their family life

(paras. 113-116) ........................ 28

cc. Whether the interferences were "in

accordance with the law"

(paras. 117-131) ........................ 29

dd. Whether the interferences pursued a

legitimate aim (paras. 132-135) ......... 31

ee. Whether the interferences were "necessary

in a democratic society"

(paras. 136-142) ........................ 32

c. Summing up (para. 143) ....................... 33

C. Article 3 of the Convention

(paras. 145-149) ................................. 34

D. Article 6 of the Convention (paras. 150-153) ..... 34

E. Article 13 of the Convention

(paras. 154-165) ................................. 35

F. Recapitulation

(para. 166) ...................................... 37

Concurring opinion of MM. J.A. Frowein, S. Trechsel and

Sir Basil Hall ............................................ 38

Partly dissenting opinion of Mr. H. Danelius joined by

Sir Basil Hall ............................................ 39

APPENDIX I: HISTORY OF THE PROCEEDINGS ................... 40

APPENDIX II: DECISION AS TO THE ADMISSIBILITY ............. 42

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 Mr. and Mrs. Nyberg, born in 1944 and 1954,

respectively. Mr. Nyberg is a Swedish citizen and Mrs. Nyberg is a

German citizen. They reside at Neukirchen-Vluyn in the Federal Republic

of Germany. The applicants are represented before the Commission by

Mr. Lennart Hane, a lawyer practising in Stockholm.

3. The Government are represented by their Agent Mr. Hans Corell,

Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.

4. The applicant's son was taken into public care, but the care

order was subsequently lifted and replaced by a prohibition on the

removal of the son from his foster home. The case relates to the

public care and the prohibition on removal as well as to various

measures taken by the social authorities in connection therewith. The

applicants complain that their right to respect for their family life

has been violated. The applicants furthermore complain of lengthy and

unfair proceedings and of absence of effective remedies. They invoke

Articles 3, 6, 8 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 9 June 1986 and registered

on 2 December 1986. The Commission decided on 13 March 1987 not to

take any action under Rule 36 of its Rules of Procedure. On 7 May 1987

the Commission decided, 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.

The Government's observations were dated 4 September 1987 and

the applicants' observations in reply were dated 17 November 1987.

6. On 16 October 1987 the Commission decided that legal aid

should be granted to the applicants.

7. On 6 July 1988 the Commission decided to invite the parties

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

At the hearing, which was held on 4 October 1988, the

applicants were represented by Mr. Lennart Hane assisted by

Mrs. Gunilla Hane. The applicants were also present at the hearing.

The Government were represented by their Agent, Mr. Hans Corell,

Ambassador, Ministry for Foreign Affairs, and as advisers

Mrs. Christina Bergenstrand, legal adviser at the Ministry of Health and

Social Affairs, and Mr. Carl Henrik Ehrenkrona, legal adviser at the

Ministry for Foreign Affairs.

8. Following the hearing the Commission, on 4 October 1988, declared

the application admissible.

9. On 17 January 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 put before

the Commission. On 11 March, 8 July, 7 October and 9 December 1989 the

Commission considered the state of proceedings of the case.

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. Active consultations with the

parties took place between October 1988 and August 1989. 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

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

The text of the Report was adopted by the Commission on

15 March 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, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

15. The applicants have two sons, Björn, born on 16 September 1981,

and Ralf, born on 14 January 1984.

a. The first application to the Commission

16. On 3 December 1981 the Social District Council No. 6 (sociala

distriktsnämnden nr. 6) in Stockholm decided to take Björn into care

pursuant to Sections 25 (a) and 29 of the 1960 Child Welfare Act

(barnavårdslagen). On 23 February 1982 the County Administrative

Court (länsrätten) of Stockholm decided to take Björn into care under

Section 1 para. 2 sub-para. 1 of the 1980 Act with Special Provisions

on the Care of Young Persons (lagen med särskilda bestämmelser om vård

av unga). The main reason for the care order was that the mental

state of the parents was considered to involve a danger to Björn's

development. Björn was placed in a foster home at Skirebo outside

Jönköping on 8 October 1982.

17. On 25 October 1982 the applicants requested that the care of

their son be terminated. The request was rejected by the Social

Council on 16 June 1983. The applicants' appeals to the County

Administrative Court, the Administrative Court of Appeal (kammarrätten)

and the Supreme Administrative Court (regeringsrätten) were

unsuccessful. The Supreme Administrative Court refused leave to

appeal on 12 January 1984.

18. On 5 July 1984 the applicants introduced an application

(No. 11180/84) before the Commission alleging inter alia that the

refusal to return their son to them was a breach of Article 8 of the

Convention. After having obtained the parties' written observations

on the admissibility and merits of the application, the Commission

declared the application inadmissible on 5 March 1986. The Commission

stated in its decision that the refusal to terminate the care order,

although constituting an interference with the applicants' rights

under Article 8 para. 1 of the Convention, was justified under the

terms of paragraph 2 of Article 8 as being necessary in a democratic

society for the protection of health and for the protection of the

rights of others.

b. The request for extended access

19. On 11 September 1984 the applicants requested the Social

District Council to make arrangements in order to establish contacts

on a regular basis between the applicants and their son Björn. They

suggested that meetings should be arranged at least twice a month with

a view to reuniting Björn with his parents.

20. On the same day the County Administrative Board (länsstyrelsen)

of the County of Stockholm asked for the Social Council's opinion on

the applicants' request for an extended right to contact with their

son. On 29 November 1984 the Social Council in its opinion to the

County Administrative Board stated that the applicants should be given

the opportunity to meet their son every five weeks.

21. The applicants complained to the County Administrative Board

which on 7 March 1985 instructed the Social Council to investigate and

decide the matter urgently. The County Administrative Board emphasised

that it was important that the Social Council, in case its opinion

differed from that of the parents as to the frequency of their contact

with the child, make a decision under Section 16 of the 1980 Act. As

the parents can appeal against such a decision it gives them the

opportunity of having the question decided by a court.

22. From the investigation made by the social authorities, which

was completed on 24 September 1985, it appears that in November 1983

the parents complained that they were not allowed to see Björn often

enough. It also appears that attempts at that time were made to reach

the applicants by telephone but with no result since their telephone

had been disconnected. In December 1983 the applicants did not turn

up at a meeting with Björn since Mrs. Nyberg who was pregnant had gone

to the Federal Republic of Germany to give birth to the child. In

July 1984 Björn's foster parents received a post card from the

applicants saying that they had returned to Sweden and wished to meet

Björn as soon as possible. During their stay in the Federal Republic

of Germany they had written a few letters to Björn and had talked to

him over the telephone on a few occasions. The applicants met Björn

in September 1984. It was then decided that they should see him

every five weeks.

23. On 3 October 1985 the Social Council decided that Björn could

meet his parents one day every three weeks at a place chosen by Björn's

parents but not at the foster home, and that a special contact person

(kontaktman) should be present at the meetings.

24. On 19 December 1985 the Social Council reviewed that decision.

A new investigation had been carried out in which it was concluded

that Björn's frequent visits to his parents in Stockholm affected him

negatively. Following the Social Council's decision, Björn had

visited the applicants on three occasions together with a contact

person. The Council now decided that the meetings should take place

every three weeks, alternately at the parents' home and the foster

parents' home.

25. In January 1986 the applicants brought an appeal against that

decision but later withdrew it in view of the Council's decision to

terminate the public care of Björn.

c. The request that the care be terminated

26. In the meantime, on 19 October 1984, the applicants again

requested that the care of the son be terminated. On 23 January 1985

the Social Council requested a child psychiatric opinion which was

received on 23 June 1985. The Council also found it necessary to

supplement the investigation with a psychiatric opinion on the

applicants and requested such an opinion in April 1985. The opinion

was received by the Council in June 1985. It was issued by an

assistant chief doctor at the Enskede Skarpnäck Psychiatric Institute.

27. The child psychiatric opinion, which was issued among others by

a specialist in child psychiatry at the Children's and Juveniles'

Psychiatric Clinic of Jönköping, was criticised by the applicants

and later withdrawn by the doctors who issued it. A new opinion based

on a new investigation was issued by a chief doctor and a certified

psychologist at the Clinic on 9 September 1985. The applicants did

not participate in the latter investigation which focused on Björn's

development. Since the two opinions contained completely different

conclusions, the Social Council asked the National Board of Health and

Welfare (socialstyrelsen) for a new assessment of the child. On

15 November 1985, the National Board replied that it could not make such

assessments. The Social Council then asked the National Board for an

assessment of the child psychiatric opinion of 9 September 1985 in

order to obtain an opinion as to whether further psychiatric

examinations were necessary. On 27 January 1986 the National Board

replied that the investigation which was at the basis of the opinion

was sufficient for an assessment as to what was in the best interest

of the child.

28. The social investigation made after the request that the public

care of Björn should be terminated was completed on 23 January 1986.

The conclusion of the investigation was that there were no longer

sufficient reasons to uphold the public care order. It was found,

however, that there was a considerable risk that Björn's health and

development could be seriously damaged if Björn was separated from his

foster parents.

29. On 6 February 1986 the Social Council decided to terminate the

care of Björn.

d. The prohibition on removal

30. At the same time, the Council prohibited the applicants from

separating Björn from the foster home where he was living. The

prohibition on removal (flyttningsförbud) was valid until further

notice. This decision was taken under Section 28 of the Social

Services Act (socialtjänstlagen). The Council stated that it was

important to create good opportunities for Björn to build up and

develop a relationship of confidence with the applicants.

31. The applicants appealed to the County Administrative Court

against the decision regarding the prohibition on removal. The Court

held a hearing on 28 May 1986 at which the applicants were present and

represented by counsel. In a judgment of 6 June 1986 the Court

confirmed the prohibition on removal, but ordered that it should only

apply until 15 December 1986. The reasons of the Court read as follows:

"On the basis of the investigation in the case, the Court

finds, inter alia, the following facts established. Björn

was placed on 8 October 1982 in the foster home of the

spouses Maud and Göran Henriksson at Skirebo outside

Jönköping. In the home there is, apart from the spouses, a

foster brother who is four years older than Björn. There is

no indication in the case that Björn has received other than

the best possible care in the foster home. As regards the

spouses Nyberg a durable stabilisation appears to have

occurred as regards their mental health. Birgitt Nyberg

works as a home assistant and Lars Erik Nyberg receives

sickness benefits. He has regular contact with a

psychiatric care centre for medication. Björn's younger

brother Ralf, born on 14 January 1984, lives with the

spouses Nyberg. Lars Erik Nyberg takes care of Ralf during

the day while Birgitt Nyberg works. The spouses' ability to

function as parents has been shown by Ralf's favourable

development. It is undisputed in the case that the spouses

would be able to take care of and foster Björn. Birgitt Nyberg

had the responsibility for the care of Björn during his

first eight months. Thereafter the separation from the

mother took place as a result of her sudden sickness. After

the separation the spouses, in particular Birgitt Nyberg,

endeavoured to maintain contact with Björn. A couple of

lengthy interruptions have occurred in the contact when the

spouses Nyberg stayed in the Federal Republic of Germany.

In 1986 some contact occurred between Björn and his parents.

Björn has slept overnight once in his parents' home. No

contact could take place in May.

The Social Council has invoked a statement from the

Children's and Juveniles' Clinic of the Central Hospital of

Jönköping dated 9 September 1985 concerning Björn. In the

statement the investigators, the chief doctor, Ingrid Laurell,

and the certified psychologist, John-Erik Ottosson, consider

that Björn is in all respects a normally developed boy. He

has no child neurotic disturbances. Emotionally he is

secure and settled in his foster family where he has spent

almost three-quarters of his life. As a result of Björn's

young age it is, of course, evident that his security and

identity are attached to the foster parents. According to

the investigators' opinion, there ought to be very strong

reasons for moving him from the foster home, having regard

to the long time he has lived there and the connection he has.

In the investigators' opinion there is a risk which is not

of a minor nature that Björn's mental development will be

jeopardised by his removal from the foster home, if it is

not ascertained in advance that Björn's relationship with

the natural parents is of such a nature that Björn can

identify them as alternative psychological parents along

with the foster parents.

In a statement of 27 January 1986 the National Board of

Health and Welfare expressed its opinion on the position

taken by the Children's and Juveniles' Psychiatric Clinic of

Jönköping that Björn should not be removed from his foster

parents. In the opinion of the National Board this position

is well-founded on the basis of knowledge of children's

development and needs as applied to Björn's special

situation. The National Board has considered that Björn, if

he is moved from the foster home, will be subjected to a

risk of damage to his mental health and development which is

not to be considered as being only of a minor nature. It is

desirable that he should be allowed to stay in the foster

home. The National Board of Health and Welfare considers

that Section 28 of the Social Services Act is applicable.

The spouses Nyberg have invoked a certificate by the

certified psychologist Lars Billing.

In a statement the County Administrative Board of the County

of Stockholm took the view in brief that it is at present

not possible to move Björn to his natural parents and that,

therefore, a prohibition pursuant to Section 28 of the

Social Services Act ought to be maintained but that

preparatory measures ought to be taken in order to reunite

Björn with his parents.

At the request of the spouses Nyberg, evidence has been

given by a psychiatrist in private practice, Olle Björkström,

the certified medical doctor Gunnel Hörnqvist, and the

certified nurse Nancy de Sousa.

Björkström has in essence said the following: As the

situation now is with the defective contacts Björn has had

with Birgitt Nyberg, it is a fact that the foster parents

are Björn's primary and psychological parents. Björn's

solidarity is with them. It would be very strenuous for

Björn if he were to move home to his natural parents.

His primary parent-child relationship would then be broken,

which would imply a great trauma for him.

Hörnqvist has considered that the spouses Nyberg would

manage to take care of Björn and to tackle the problems

which would arise if he moved home. Hörnqvist considers

that Björn has a living contact and a deep relationship

with, in particular, Birgitt Nyberg. It would therefore not

be a serious risk if Björn came home.

Nancy de Sousa met Björn in September 1984 and March 1986

during his visits to the spouses Nyberg. She indicated what

she saw during these visits and stated that they were

favourable and without any problems.

The Deputy Chief Doctor Frank Ståhl at the Sankt Göran's

hospital, who is a specialist in children's and juvenile

psychiatry, has been heard as an expert. Ståhl stated

mainly the following: As a result of the separations during

Björn's first years, he is more sensitive than others to a

break-up from the environment in which he now finds himself,

and it involves as such a considerable risk of damage to his

psychological health, which is not of a minor nature. The

foster parents are the most important persons for Björn in

his life. Birgitt Nyberg does not sufficiently understand

Björn's need of his foster parents. Björn is now settled in

the foster home and to move him would involve strain. Björn

must now get a clear message as to where he belongs. It is

important that he may have a relationship with his natural

parents. What is at present particularly damaging for Björn

is the conflict between the foster parents and the natural

parents.

Under Section 28 of the Social Services Act the Social

Council may, when the child's best interests so require, for

a certain period, or until further notice, prohibit the

person who has the care of the minor from taking the child

away from a foster home if there is a risk which is not

considered to be of a minor nature that the child's physical

or mental health would be jeopardised if he is separated

from the home. Only a temporary disturbance or any other

temporary inconvenience is not a sufficient reason for

issuing a prohibition. When placing a child in a foster

home the normal objective should be the reunification of the

natural parents and the child. A prohibition under Section 28

of the Social Services Act ought to be seen as a temporary

measure, valid until such time as a child, without risk for

any damage which is indicated in the said prohibition, can

be separated from the foster home. The facts which should

be considered in cases concerning prohibitions on removal

are inter alia the child's age, his or her degree of

development, abilities and emotional relationships, the time

the child has been cared for in other places than with the

parents, the present living conditions of the child, and

those which he or she would have after a removal, as well

as the contact between the parents and the child during the

time they have been separated.

The County Administrative Court makes the following assessment.

Björn will be five years old in September. During his first

eight months he stayed with Birgitt Nyberg. As from the age

of one year he has lived in the foster home. The spouses

Nyberg's suitability to take care of Björn is not

questioned. Since the circumstances which led to Björn

being placed in the foster home have ceased to exist, the

aim must be that Björn should be reunited with his parents.

The experts who have submitted their opinions in the case

have by and large jointly expressed themselves against

Björn's removal to the natural parents. They have based

themselves on the emotional bond which has arisen between

Björn and the foster parents and the long time he has lived

in the foster home. The facts of the case show that the

spouses Nyberg have maintained contact with Björn but that

the contact has been made more difficult during recent

times. There is now a situation filled with conflicts

between the spouses Nyberg and the foster parents which is

to Björn's detriment. The Court finds it established in

the case that there is a risk, which is not of a minor

nature, that Björn's mental health would be jeopardised

if he were now separated from the foster home. The

prohibition on removal should therefore at present be

maintained.

Irrespective of whether a prohibition on removal is limited

in time or not, it is the obligation of the Social Council

to see to it that appropriate preparations are made promptly

with a view to the reunification in order that the child

should not become more attached to the family which it

should leave. From the facts of the case it appears that

Björn is a normally developed boy without any disturbances.

If he does not live in the near future with his natural

parents and his brother, the prohibition on removal can, in

the long run, turn out to be in conflict with Björn's best

interests. The County Administrative Court considers that

if Björn receives as soon as possible a clear message that

after a certain time he should move home to his parents and

his brother and that preparations are made with frequent

contacts with his parents, Björn would not run any risk of

more than temporary disturbances when moving. The conflicts

between the foster parents and the spouses Nyberg must not

be an absolute impediment to active measures of preparation

for Björn's removal. Making an overall assessment, the

County Administrative Court finds that there are reasons

to limit the prohibition on removal in time for no longer

than half a year. The Court takes it for granted that the

Social Council will actively further the reunification of

Björn and the natural parents and that the Council will

intensify its work in this respect. Great responsibility is

incumbent upon the foster parents. They must participate

positively and actively and help and support Björn. The

spouses Nyberg and the foster parents must try to reach

agreement and see to the best interests of Björn."

32. Both the applicants and the Social Council appealed to the

Administrative Court of Appeal of Stockholm. The Court held a

hearing in the case on 17 September 1986, at which Birgitt Nyberg was

present and both applicants were represented by counsel, and delivered

judgment on 7 October 1986. The Court ordered that the prohibition on

removal should apply no longer than to 1 March 1987. In the reasons

for its judgment the Court stated inter alia the following:

"The Administrative Court of Appeal finds, as did the

County Administrative Court, that there is a risk which is

not of a minor nature that Björn's health and development

would be jeopardised if he were to move immediately from the

foster home. The County Administrative Court has therefore

had reasons to issue a prohibition on removal.

From the investigation in the case it appears that the

contacts between the parents and the child have been good

most of the time when Björn lived in the foster home. It

furthermore appears from the investigation, inter alia from

the testimony of Dr. Hörnqvist, that it has been possible to

maintain a rather deep emotional contact between Björn and,

in the first place, his mother, during the time he has

stayed in the foster home. In view of this, and having

regard to the other facts of the case, there is reason to

believe that it is possible to arrange for a relatively

quick reunification without there being any risk for Björn's

health.

When deciding on the date until which the prohibition on

removal should be valid, it must be kept in mind that Björn,

on some occasions, has shown that he does not wish to visit

the parents and that two visits in May 1986 could not take

place as a result of his refusal to follow them to

Stockholm. It should further be observed that Björn has not

met his parents since the end of May 1986. On the other

hand, great importance must be attached to the fact that

Björn, according to the medical certificates which have been

invoked in the case, is in all respects a normally developed

child both physically and mentally.

The measures taken by the Social Council so far, in order to

create the basis for a reunification between Björn and his

natural parents, have been insufficient. Thus it must be

considered that the occasions on which there have been

contacts between them have been too few and too short and

that, also in other respects, they have been designed in a

way which has not been favourable to strengthening the links

between Björn and his parents. Nor has sufficient regard

been had to the conflicts which have arisen between, in

particular, Birgitt Nyberg and the foster parents. The

Administrative Court of Appeal takes it for granted that the

Social Council, in pursuing the objective of reuniting Björn

with his natural parents will, through different measures,

intensify its work in this respect. Furthermore, the Court

also takes it for granted that the spouses Nyberg will

completely and fully co-operate in order to make the removal

as smooth as possible for Björn and that the foster parents

will also co-operate for this purpose.

In view of what has been said above, the Court finds that

some further time is necessary for the preparatory measures

before the prohibition on removal can be terminated."

33. The applicants and the Social Council appealed to the Supreme

Administrative Court, which in a decision of 7 November 1986 refused

leave to appeal.

e. The first decision of the Parliamentary Ombudsman

34. Following complaints from the applicants the Parliamentary

Ombudsman (justitieombudsmannen) stated in a decision of 19 June 1986

that the Social Council's examination of the applicants' request for

an extended right of access to Björn had been unduly long (more than

one year). He stated that the Social Council should have taken a

decision under Section 16 of the 1980 Act when giving their opinion to

the County Administrative Board in November 1984. By not doing so the

Social Council deprived the applicants of the right to have their

request examined by a court.

35. The Parliamentary Ombudsman also stated that the fact that the

applicants' request for a termination of the care order had only been

dealt with after almost one and a half years was unacceptable in view

of the Social Council's obligation under Section 5 of the 1980 Act to

monitor carefully the care of a young person who has been taken into

care under the 1980 Act, and Section 9 of that Act which provides

that cases concerning care orders shall be dealt with promptly. He

pointed out that the first delay was caused by the fact that the request

for the child psychiatric opinion was not made until 23 January 1985.

As regards the Social Council's request of September 1985 for a new

psychiatric assessment of Björn, the Parliamentary Ombudsman pointed

out that the Social Council ought to have known that the National

Board of Health and Welfare does not carry out investigations.

f. The proceedings relating to the transfer of the legal

custody of Björn, the enforcement proceedings and the

new decision to prohibit the applicants from removing Björn

36. On 18 December 1986 the Social Council decided to institute

civil proceedings before the Stockholm District Court (tingsrätt)

requesting that the legal custody of Björn be transferred from the

applicants to the foster parents in accordance with Chapter 6 Section 8

of the Parental Code (föräldrabalken). The Social Council invoked

an investigation, made by a welfare officer, of 5 December 1986 and the

written consent of the foster parents. In the Social Council's

application for a summons, dated 25 November 1986, it is stated that

there was a risk that Björn's mental health would be harmed if he was

separated from his foster parents and that it would obviously be in

his best interests to stay with them.

37. In the social investigation it is stated inter alia that

Björn, during the period January 1986 to May 1986, by strong emotional

reactions in connection with the meetings with his parents, showed

that he did not wish to see them. The conclusion was reached that

Björn had lost an essential part of his emotional attachment to his

mother and that he identified himself with his foster parents and felt

that he belonged in his foster family.

38. On 26 January 1987 the applicants applied to the County

Administrative Court of Jönköping for the enforcement of the return to

them of their son Björn in accordance with the provisions of Chapter 21

of the Parental Code.

39. On 30 January 1987 the County Administrative Court ordered

that the Head of Section at the social authorities of Jönköping,

Mrs. Ingrid Westerlund-Henja, should try to achieve a voluntary

transfer of the child from his foster parents to the applicants.

40. On 9 February 1987 the Social Council requested the District

Court to transfer, by a provisional decision, the legal custody of

Björn to the foster parents. The reasons given for the request was

the applicants' application of 26 January 1987 for the enforcement of

the return to them of Björn and the fact that according to the Social

Council the applicants had not co-operated sufficiently in order to

make the removal as smooth as possible for Björn.

41. On 23 February 1987 the Social Council requested a medical

opinion from the Children's and Juveniles' Psychiatric Clinic of

Jönköping as to whether Björn would be able to endure the meetings

with his parents without becoming mentally injured. In the opinion,

which was issued on 25 February 1987 by the doctors who had issued the

opinion of 9 September 1985, the following was stated:

"Since measures to create contact have not been brought

about until 3 February 1987, in spite of the judgment of

the Administrative Court of Appeal of 7 October 1986, it has

been necessary under considerable lack of time and in a

doubtful manner to try to create contact between Björn and

his natural parents in such a way that, in our opinion,

it has not facilitated Björn's attachment to his natural

parents. To continue trying to create contact in the

same manner is considered by the under-signed to be

directly harmful to Björn's mental health and development...

It is our unambiguous opinion that until a functioning

contact and a favourable attachment can be brought about

between Björn and his natural parents and all those

involved have done what is possible to help Björn with the

separation from the foster parents, who naturally are his

psychological parents, a transfer of Björn to his natural

parents will bring about an apparent risk that Björn's

mental health and development will be seriously harmed."

42. In view of this opinion the Chairman of the Social Council

decided on 26 February 1987 to issue a new prohibition on removal, this

time valid until further notice.

43. On 5 March 1987 the Social Council provisionally upheld the

Chairman's decision.

44. On 10 March 1987 the County Administrative Court held a

hearing in the case concerning enforcement under Chapter 21 of the

Parental Code and on 16 March 1987 it delivered judgment. The

applicants' request for enforcement was granted. The Court ordered

that the child be temporarily placed for a maximum period of five days

at the Children's and Juveniles' Psychiatric Clinic of Jönköping and

that thereafter the child should be transferred to the applicants.

The foster parents were ordered to leave the child with the Clinic not

later than 24 March at 10.00 hours. In the judgment the following

reasons are indicated:

"In the situation which is at hand in the present case, the

Court, under Chapter 21 Section 7 second paragraph of the

Parental Code, may refuse enforcement if, in view of the child's

best interest, it is necessary that the question of the

legal custody of the child be examined by an ordinary court.

It appears from the investigation that (the applicants),

with some exceptions, have had continuous and good contact

with Björn and that they have all the time had the intention

of taking care of him themselves. In view of this and of the

other facts, there is no obstacle to the enforcement on the

ground that it would be necessary to re-examine the question

of the legal custody of Björn. The fact that proceedings

concerning this question are now pending does not affect this

conclusion.

It can be established that the preparatory measures which

according to the judgment of the Administrative Court of

Appeal were necessary in order to terminate the prohibition

on removal have not been implemented to the extent or in the

manner envisaged. The Social Council's action to request

before the District Court a transfer of the custody of Björn

within a rather short time after the judgment of the

Administrative Court of Appeal appears remarkable and has not

been designed to facilitate the preparatory measures. The

manner in which contacts took place between Björn and his

natural parents during the month of February did not

facilitate his relations to them either.

At least during the last year there has been a conflict

between the natural parents and the foster parents. The

conflict has become worse recently. In the opinion of the

Court the result is that it will presumably be very

difficult to achieve Björn's gradual adaptation to his

natural parents as intended in the judgments concerning the

prohibition on removal.

The issue in the case is therefore whether nevertheless the

conditions for enforcement are fulfilled. According to

Chapter 21 Section 6 second paragraph of the Parental Code,

the County Administrative Court may refuse enforcement if

there is a risk, which is not of a minor character, that the

child's bodily or mental health may be harmed. In that

context not only should the risks of the actual transfer and

the resulting problems of adaptation be taken into account,

but also what in the long run must be considered to be in

the best interest of the child. In view of the statements

of Mrs. Ingrid Laurell and Mr. John Erik Ottosson and the

other facts, it appears clear that there is a risk that

Björn's mental health might be harmed by a transfer. In the

case before the County Administrative Court of Stockholm

concerning prohibition on removal, the expert on child and

juvenile psychiatry, Mr. Frank Ståhl, stated inter alia that

Björn must receive a clear message as to where he belongs and

that what is most harmful to him is the conflict between the

foster parents and the natural parents. The Court concurs

with this opinion. There is thus also a risk that Björn's

mental health may be harmed if the conflict and the

uncertainty as to where he belongs continue.

Björn, who is not yet six years old, is a normally developed

boy. It is established that there were previously good

contacts between him and his natural parents. The certified

doctor Mrs. Gunnel Hörnqvist stated in the case concerning

the prohibition on removal that Björn had close contact and

deep relations, in particular with Mrs. Nyberg. Even if the

contact between them has not been so good in the special

circumstances which have prevailed recently, there is good

reason to believe that the previous good relations will be

restored. The numerous proceedings which have been instituted

and which are still going on concerning Björn have resulted in

great strain for all the parties involved, and have evidently

aggravated the conflict between the natural parents and the

foster parents. This, of course, affects Björn. It must,

from his point of view, be important to terminate the 'fight'

over him. As long as he stays in the foster home it is likely

that the 'fight' will continue.

The natural parents have, of course, a justified claim to

have their child back. As has been said above, it appears

impossible to achieve Björn's gradual adaptation to them.

Making an overall assessment of the risk to him which a

transfer would involve compared to the risks which continued

uncertainty and continued conflicts would involve, the Court

finds that the most weighty arguments are in favour of

enforcement now."

45. On 19 March 1987 the Social District Council decided to

prohibit the applicants from moving Björn from the foster home since

there was a risk which was not of a minor character that Björn's

mental health and development would be harmed if he was separated from

the foster home. The decision was based on an investigation made by

the Social District Council and completed on 9 March 1987. The

investigation contains a report on the different occasions in February

1987 when Björn met his parents. In the investigation it is stated

inter alia that when the meetings started Björn had not seen his

parents since June 1986, that the conditions during the meetings had

been strained particularly for Björn, that Birgitt Nyberg had stated

that she found it hard to establish a good contact with Björn when

the welfare officers were present and that the scheduled meetings

were interrupted on 25 February 1987 after a recommendation from the

Children's and Juveniles' Psychiatric Clinic in Jönköping.

46. Both the applicants and the foster parents appealed to the

Administrative Court of Appeal against the judgment of the County

Administrative Court of 16 March 1987. Before the Administrative

Court of Appeal preparatory sessions were held in order to try to

solve the dispute on a voluntary basis. In the course of these

sessions the parties agreed to co-operate for the purpose of

transferring Björn to the applicants. The foster parents promised to

endeavour to have the case on legal custody before the District Court

withdrawn. Mrs. Nyberg promised to endeavour to have a police report

in the Federal Republic of Germany against the foster father

withdrawn. Following these sessions the Administrative Court of

Appeal of Jönköping decided on 1 April 1987 to adjourn its examination

of the case.

47. On 2 April 1987 the Social Council decided to maintain its

action before the District Court of Stockholm concerning the transfer

of the legal custody of Björn from the applicants to the foster

parents and to maintain the prohibition on removal under Section 28 of

the Social Services Act.

48. On 3 April 1987 the foster parents wrote a letter to the

District Court repeating the agreement reached with the natural

parents before the Administrative Court of Appeal and expressed their

surprise over the Social Council's decision.

49. On 15 April 1987 the Social Council decided to withdraw its

action before the District Court concerning the transfer of the legal

custody and to revoke the prohibition on removal. The application

before the District Court was withdrawn by the Social Council on

21 April 1987 and removed from the Court's case list on 13 July 1987.

50. The applicants claimed that the District Court should oblige

the Council to pay their legal costs on the ground that the Council

intentionally or by neglect had caused unnecessary legal proceedings.

The Court rejected the applicants' claim. The applicants appealed to

the Svea Court of Appeal (Svea hovrätt), which found that there were

special reasons to oblige the Council to pay their legal costs since

the Council withdrew its action after a considerable delay.

51. The social authority covered the foster parents' costs for

legal aid in the custody proceedings. This was decided on 26 March

and 26 May 1987 by two social welfare officers.

52. On 21 April 1987 the foster parents and Björn arrived at the

applicants' home at Neukirchen. On 23 April the foster parents left

Björn with the applicants and the family is since then re-united.

53. On 14 May 1987 the Administrative Court of Appeal removed the

case concerning the enforcement of the return of Björn to his parents

from its list of cases.

g. The incident in the Federal Republic of Germany

54. On 29 May 1986, the applicants had been allowed to meet Björn

for the day in order to have some contact with him. In view of the

fact that Björn's grandmother had not had the opportunity of meeting

him for a long time, the applicants decided, thereby violating the

conditions for the right of access to Björn, to travel with him to the

Federal Republic of Germany on a visit to his grandmother.

55. When the foster mother came to fetch Björn from his parents'

home in the evening nobody was there. She informed the social

authorities.

56. On 29 May 1986 the Deputy Chairman of the Social Council

decided to take Björn into public care and to ask for assistance from

the police authority in order to have the decision enforced. The

applicants were reported to the police for having taken Björn away

without permission.

57. The social authorities contacted the Ministry for Foreign

Affairs in order to find out whether there was any possibility to have

Björn returned to Sweden and were informed that there were no treaties

or conventions between Sweden and the Federal Republic of Germany

regarding a situation like the one in question.

58. On 30 May 1986 the foster parents talked to Björn's father

over the telephone. They were informed that Björn's parents intended

to spend some time in the Federal Republic of Germany.

59. On 31 May 1986 the foster father went to the Federal Republic

of Germany with a friend. Before he left he had contact with one of

the social welfare officers dealing with the case of Björn. The

welfare officer ordered air tickets, in the social authority's name,

for the foster father and his brother. She also ordered return

tickets, including one for Björn. She booked tickets on a flight to

Amsterdam. The bill was sent to the social authority but forwarded to

the foster parents. The reason why the social welfare officer helped

to book the tickets was that it was Saturday and the foster father

could not raise the money required for the trip. She also understood

that the foster parents were concerned about Björn.

60. The foster father arrived at Neukirchen-Vluyn, where Björn

was staying with the applicants, on 31 May 1986. On the following day,

late in the afternoon, the applicants took a walk with their two sons.

The foster father approached them from behind in a car. At a certain

moment, the foster father got out of the car, apprehended Björn and took

him into the car, and then drove off quickly. Thereafter the foster

father went with Björn to Sweden via Amsterdam.

61. This incident was reported to the police. On 1 August 1986

the Regional Prosecutor (regionåklagaren) of Jönköping decided not to

institute criminal proceedings against the foster father since it was

considered that his action was founded on his care for Björn and that

criminal proceedings were not required in the general interest. In

view of this decision no investigation was initiated by the prosecutor

regarding the officials at the Social District Council. Upon appeal

the Prosecutor-General (riksåklagaren) upheld the decision of the

Regional Prosecutor and decided, on 27 October 1986, not to take any

action.

62. When Björn had returned to Sweden the foster parents reimbursed

the social authorities for the air ticket.

63. On 10 June 1986 a social welfare officer decided to grant the

foster parents an allowance of 5,825 SEK. The only note made about the

allowance was that it was a special measure of support. When asked

about the allowance by the Parliamentary Ombudsman, in the course of

her investigation, the social welfare officer said that it was a

special measure of support in view of the difficulties the foster

parents experienced when Björn had returned to them. In an application

for compensation to the foster parents for their travel expenses,

submitted by the social authority to the Berg-Rolanska Foundation, it

appears that the entire cost for the travel, including air tickets,

hotel and a rented car, was 12,825 SEK and that the social authority

had granted an allowance of 5,825 SEK. The foster parents had their

expenses fully covered by financial contributions from the Swedish

Save the Children Federation and from the Berg-Rolanska Foundation.

h. The second decision of the Parliamentary Ombudsman

64. On 24 May 1988 the Parliamentary Ombudsman took a decision

concerning the social welfare officers' and the Social District

Council's handling of Björn's case from 29 May 1986 onwards.

65. The Ombudsman considered that the foster father, when bringing

Björn back to Sweden from the Federal Republic of Germany, had acted

in conflict with the applicable enforcement rules in the Parental Code

and the Social Services Act. She further considered that the assistance

by the social welfare officer was crucial when Björn was returned to

Sweden. She stated that it cannot be accepted that the social

authorities facilitate illegal actions. However, she found that she

could not, against the social welfare officer's denial, conclude that

it had been agreed between the social welfare officer and the foster

father that he should try to take Björn back to Sweden even without

the applicants' consent. The Ombudsman strongly criticised the action

of the social authorities.

66. The Ombudsman further considered that, whether the contribution

of 5,825 SEK to the foster parents was supposed to cover their travel

expenses or not, the social authority had shown through its actions,

after the foster father had brought Björn back, that it supported his

action. The Ombudsman found this inappropriate.

67. From the Ombudsman's investigation it appears that the reasons

the social authorities had given for the decision of the Deputy

Chairman of 29 May 1986 to take Björn into care on a provisional basis

were, inter alia, that the social authorities wished to make it

possible to ask for assistance from the police to bring Björn back to

Sweden, that Björn's parents, by abruptly separating him from the

foster parents, had shown that they lacked understanding for his

needs, that they had prevented the preparation for their reunification

with Björn as it had been envisaged by the County Administrative Court

in its judgment on prohibition on removal and, finally, that Björn's

strong reactions when he met his parents in spring 1986 might be

detrimental to his health and development.

68. In this respect the Ombudsman pointed out that only the last

reason was valid and that it was not likely that the provisional care

decision would have been upheld by the County Administrative Court.

She did not pursue the issue as the decision was never enforced. She

added that the decision ought to have been brought before the Council

for re-examination when it had a meeting a few days later and Björn

was back in Sweden. This was never done.

69. As for the remaining part of the examination the Ombudsman

pointed out that the Social District Council, in view of the judgments

of the Courts on 6 June and 7 October 1986, was under a special

obligation - besides what normally rests with a social authority in

this regard - to be active in seeing to it that contacts were created

between the child and his natural parents. She found no indication

that serious efforts were made in order to improve the relations to

the natural parents. On the contrary, she said, the application of

December 1986, for having the custody of Björn transferred to the

foster parents, proved that the Social District Council had taken the

view that Björn was not to be reunited with his parents. For this she

expressed strong criticism.

70. She further found that the decision on a new prohibition on

removal concerning Björn, taken a few days before he should be

returned to his parents according to the judgment of the

Administrative Court of Appeal of 7 October 1986, was clearly in

conflict with the intentions of the legislator as no new circumstances

had emerged since the delivery of the judgment. Furthermore, the

social authority covered the foster parents' costs for legal aid in

the custody proceedings thereby showing its support for the foster

parents' refusal to abide by that judgment. Finally, the decision of

the Social Council of 2 April 1987 to maintain the action on transfer

of custody and the prohibition on removal was taken in disregard of

the judgment of the County Administrative Court of 16 March 1987,

according to which Björn should be returned to his parents.

71. Summing up the Ombudsman observed that the social welfare

officers had engaged themselves strongly in the case for the benefit

of the foster parents, which had led to a serious conflict with the

natural parents. She did not find any reason to assume other than

that the Social Council and its employees were acting in what they

considered to be the best interest of the child. She found it

doubtful whether the Social District Council and the social welfare

officers realised that respect for court decisions is a fundamental

and indispensable requirement of legal security.

i. Further particulars concerning the contacts between

the applicants and Björn

72. During Björn's first year in the foster home, Mrs. Nyberg

visited him once a month. Every second time she visited him she was

accompanied by Lars Erik Nyberg and the visit lasted for a day, and

every second time she came alone and the visit lasted two days. After

some time the spouses Nyberg visited Björn together every sixth week.

73. During the period 4 November 1983 to 23 September 1984 the

applicants did not meet Björn as they had gone to the Federal Republic

of Germany in order for Mrs. Nyberg to give birth to their second

child. They met Björn again on 23 September 1984.

74. In the period between their request of 19 October 1984 that

the care of Björn be terminated, and the decision of the Social

Council of 6 February 1986 to terminate the care, the applicants met

Björn on the following occasions, alternately in their home and in

the foster parents' home:

4 November 1984 14 August 1985

22-23 December 1984 19 October 1985

2 February 1985 7 November 1985

13 March 1985 1 December 1985

22 April 1985 21 December 1985

2 June 1985 12 January 1986

12-13 July 1985

75. After the care had been terminated and during the spring of

1986, until the time when Björn was brought to the Federal Republic of

Germany by the applicants, they met him on the following occasions:

8-9 February 1986 16 May 1986

22-23 March 1986 29 May-1 June 1986

76. The applicants returned to Sweden from the Federal Republic of

Germany in January 1987. A plan was made by the social authorities, in

co-operation with the applicants and the foster parents, according to

which the applicants were to meet Björn 17 times in February. The

first meeting took place on 3 February 1987 and the last one on

24 February 1987. The meetings were interrupted by the social

authorities on 25 February 1987 due to a medical opinion of the same

date. There were in total 13 meetings between Björn and his parents

in February 1987. Björn further met his parents on a number of

occasions in March and April 1987.

B. Relevant domestic law

a. The Social Services Act and the 1980 Act with

Special Provisions on the Care of Young Persons

77. 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 and consent of the individuals concerned. Decisions

which had been taken under the 1960 Child Welfare 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.

aa. Compulsory care

78. The 1980 Act is concerned only with cases where the parents do

not give their consent to the necessary measures.

Section 1 paras. 1 and 2 of the 1980 Act read:

(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."

79. It is the responsibility of each municipality to promote a

favourable development for the young. Each municipality has a Social

Council, composed of lay members assisted by a staff of professional

social workers, which exercises this function.

80. If the Social Council deems it necessary to take a child into

care, the Council has to apply to the County Administrative Court for

a decision to this effect. According to Section 9 of the 1980 Act a

case concerning a care order should be dealt with promptly.

81. The procedure before the court is oral. Parents, witnesses

and experts are present. The parents and the child are represented

each by free legal counsel.

82. Decisions by the County Administrative Court may be appealed

to the Administrative Court of Appeal and a further appeal to the

Supreme Administrative Court is possible. The Supreme Administrative

Court will only examine the merits of the case if it first grants

leave to appeal.

83. 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.

84. The Social Council may, under Section 16 of the 1980 Act,

regulate visits to and by parents. It may 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.

85. Section 41 of the Social Services Ordinance (socialtjänst-

förordningen) provides that a care decision must be reconsidered by

the Social Council regularly, at least once a year, if the original

decision was based on unsatisfactory conditions in the child's home.

The Social Council must also reconsider a care decision at the request

of the child's parents.

86. 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. The second sentence of the first paragraph of

Section 5 reads:

(Swedish)

"När vård enligt lagen inte längre behövs, skall nämnden

besluta att vården skall upphöra."

(English translation)

"The Council shall decide to terminate care under

the Act when such care is no longer necessary."

bb. Prohibition on removal

87. The Social Council may issue a prohibition on removal under

Section 28 of the Social Services Act, which reads as follows:

(Swedish)

"Socialnämnden får för viss tid eller tills vidare förbjuda

den som har vårdnaden om en underårig att ta denne från ett

hem som avses i 25 §, om det finns risk som inte är ringa för

att barnets kroppsliga eller själsliga hälsa skadas om det

skiljs från hemmet.

Om det finns sannolika skäl för att en sådan risk föreligger

men den behövliga utredningen inte har kunnat slutföras,

får ett tillfälligt förbud meddelas att gälla i avvaktan

på att ärendet kan slutligt avgöras, dock högst fyra veckor.

Ett förbud enligt denna paragraf hindrar inte att barnet

skiljs från hemmet på grund av ett beslut enligt 21 kap.

föräldrabalken."

(English translation)

"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 physical or mental

health if separated from that home.

If there are reasonable grounds to assume 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."

88. Section 28 of the Act does not apply to children who are being

cared for in foster homes under Section 1 of the 1980 Act with Special

Provisions on the Care of Young Persons. As long as such care

continues, the right of the guardian to determine the domicile of the

child is suspended. The right, however, is in principle returned to

the guardian if the care of the child in a foster home is terminated,

but may be further suspended by an application of Section 28 by the

social authorities.

89. In the travaux préparatoires of the Act (Government Bill 1979/

80:1, p. 541) it is mentioned that only a passing disturbance or other

occasional disadvantage to the child is not a sufficient ground for

issuing a prohibition on removal. It is further stated that among

the factors which shall be considered are 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 must also be taken into

account as well as the living conditions the child has and the

conditions it will come to. The parents' contacts with the child

during the period they have been separated must also be taken into

account. An important factor which must be considered in connection

with a possible decision on the 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. The child's

preferences can be of importance in considering the risk of harm to

the child as a result of a removal.

90. 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 damage to the child's

physical or mental health, thus even if no serious objections exist

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 conflict with the

guardian's interest in deciding the domicile of the child. The

Committee pointed out that a separation generally involves a risk of

harm to the child. Repeated transfers and transfers which take place

after a long time, when the child has 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 must be decisive

in any decision on these questions.

91. 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 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.

92. In a decision (No. 2377 of 18 July 1988), the Supreme

Administrative Court held that a decision by the Social Council to

restrict the access rights of the appellants, 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. 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."

b. The Parental Code

93. Provisions concerning the enforcement of judgments and

decisions concerning the custody of children are laid down in

Chapter 21 of the Parental Code. According to Section 1 of this

Chapter the County Administrative Court decides on questions

concerning the enforcement of judgments or decisions taken by the

ordinary courts on questions concerning custody or the right of access

to children. According to Section 7 the County Administrative Court

may also take similar decisions at the request of the guardian even in

cases where there is no judgment or decision taken by an ordinary

court. This section reads:

(Swedish)

"Även om dom eller beslut som avses i 1 § inte föreligger,

kan barnets vårdnadshavare, när barnet vistas hos någon

annan, begära att länsrätten beslutar om åtgärd för att

barnet skall överflyttas till vårdnadshavaren.

Länsrätten kan vägra att vidta den begärda åtgärden, om det

av hänsyn till barnets bästa är påkallat att frågan om

vårdnaden prövas av allmän domstol."

(English translation)

"Even when no judgment or decision as described in Section 1

exists (i.e. judgments by ordinary courts concerning custody,

access to, or surrender of children), the child's guardian

may, when the child is staying with someone else, request

the County Administrative Court to have the child transferred

to the guardian.

The County Administrative Court may refuse to take the

measure requested if the best interests of the child require

that the question of custody be examined by a general

court."

94. In case a smooth transfer of the child to its parents is

impossible in view of the interest of the child, Chapter 6 Section 8

of the Code may be applied. This provision reads:

(Swedish)

"Har ett barn stadigvarande vårdats och fostrats i annat

enskilt hem än föräldrahemmet och är det uppenbart bäst för

barnet att det rådande förhållandet får bestå och att

vårdnaden flyttas över till den eller dem som har tagit emot

barnet eller någon av dem, skall rätten utse denne eller

dessa att såsom särskilt förordnade förmyndare utöva

vårdnaden om barnet.

Frågor om överflyttning av vårdnaden enligt första stycket

prövas på talan av socialnämnden."

(English translation)

"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.

Questions concerning the transfer of custody under para. 1

are to be examined at the request of the Social Council."

95. A decision according to this provision can only be made by

an ordinary court and not by an administrative court. A transfer of

the custody, apart from adoption, is the most severe measure towards

the parents. It means that the legal position of the natural parents

as guardians is definitely transferred to the foster parents,

although the natural parents retain certain rights and obligations,

such as the right of access and the obligation to pay maintenance.

96. In a Government Bill (1989/90:28) a new Act with Special

Provisions on the Care of Young Persons is proposed to enter into

force on 1 July 1990. According to the proposal the provisions

relating to prohibitions on removal should be transferred from the

Social Services Act to the new Act. As the basis for a decision to

terminate a care order is different from that of a decision to issue a

prohibition on removal, it is proposed that these issues will be kept

apart in the future. However, there should be a better co-ordination

between the two kinds of decision. The County Administrative Court

shall, at the request of the Social Council, decide on issues

concerning a prohibition on removal. The conditions for issuing a

prohibition remain the same. The Social Council shall reconsider the

prohibition at least every three months and may decide on the

questions of the parents' access to the child during the prohibition

on removal. An appeal against a decision on access may be made to the

County Administrative Court.

III. OPINION OF THE COMMISSION

A. Points at issue

97. 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 3 (Art. 3)

of the Convention;

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

(Art. 6-1) of the Convention;

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

of the Convention.

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

98. 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."

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

breach of Article 8 (Art. 8) of the Convention because of the refusal

until April 1987 to allow them to take Björn home. They also complain

of the delay in the proceedings regarding the reunification of their

family, partly through administrative slowness, partly through

successive delays by different authorities. They refer in this

context to delays in the proceedings concerning their request for

extended access as well as their requests for the termination of the

care and the prohibition on removal. Although the prohibition on

removal is formally a decision aiming at a smooth transfer of a child

from the foster parents to the natural parents, the applicants

consider that it has in this case been used for the opposite purpose,

namely to obstruct Björn's return to his natural parents. The social

authorities did nothing to reunite them with their son and their

access to him was not sufficient to promote the aim of reunification.

The social authorities even went so far as to institute proceedings

regarding transfer of custody to the foster parents, an action which

clearly went against the purpose of the applicants' reunification with

their son. The applicants further complain that the kidnapping of

Björn in the Federal Republic of Germany shows disrespect for their

family life in breach of Article 8 (Art. 8) of the Convention.

100. The Government contest that there has been any undue delay in

the various proceedings. They admit that a prohibition on removal

issued when a care order is lifted constitutes an interference with

the right to respect for family life. In view of the opinion

expressed by the Parliamentary Ombudsman the Government admit that the

social authorities have not been able to fulfil their task of

arranging a smooth transfer of Björn to his parents. They submit,

however, that the entire responsibility for this cannot be placed on

the social authorities. The Government further submit that the

measures and decisions taken up to and including 6 February 1986 - the

date when the care order was lifted and the prohibition on removal

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

Convention. The Government assert the same as regards the decisions

which have been taken by the courts after that date. As regards the

measures taken by the Social Council after the care order was lifted

the Government, with reference to the criticism of the Parliamentary

Ombudsman, leave it to the Commission to decide whether they were

lawful and necessary within the meaning of Article 8 para. 2 (Art.

8-2). As to the complaint concerning Björn's return to Sweden the

Government submit that the actions of the foster father were neither

initiated nor authorised by Swedish authorities.

101. A previous application to the Commission introduced by the

applicants on 5 July 1984 dealt with the proceedings relating to the

initial care order concerning Björn, which ended on 12 January 1984

with the Supreme Administrative Court's decision. The Commission, which

by a decision of 5 March 1986 declared the application inadmissible,

found that although the refusal to terminate the care order constituted

an interference with the applicants' rights under Article 8 para. 1

(Art. 8-1) of the Convention, the interference was justified under the

terms of the second paragraph of that provision. In the present case

the Commission's examination relates to the period following the

Supreme Administrative Court's decision of 12 January 1984.

102. The Commission considers that a number of different issues

arise under Article 8 (Art. 8) of the Convention. It considers that

its examination should focus on the following points:

(a) the delay in dealing with the applicants' request for extended

access and their request that the care be terminated;

(b) the justification of the care order and the restrictions on

access applied until 6 February 1986;

(c) the length of the proceedings relating to the prohibition on

removal;

(d) the justification of the prohibition on removal up to

1 March 1987;

(e) certain actions taken by the Social Council after the

termination of the care order, in particular the imposition of

restrictions on access during that period, the prolongation of

the prohibition on removal beyond 1 March 1987, the institution

of court proceedings for the purpose of transferring custody

to the foster parents and the alleged involvement of these

authorities in the foster father's action to bring Björn back

to Sweden from the Federal Republic of Germany.

The issues indicated under (a) and (b) relate to the period

when the care order was in force whereas the other issues relate to

the period after the care order had been lifted and the prohibition on

removal had been issued. The Commission will examine successively

whether the facts relating to those two periods were such as to

constitute a violation of the applicants' right to respect for their

family life under Article 8 (Art. 8) of the Convention.

a. The period when the care order was in force

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 (see

e.g. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130,

p. 29, para. 59, and Eriksson judgment of 22 June 1989, Series A no. 156,

p. 24, para. 58).

104. The Commission further recalls that 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).

105. In the present case, the delay in dealing with the applicants'

request for extended access and their request for the care to be

terminated (complaint under point (a) in para. 102) raises an issue as

to whether the applicants' family life was effectively respected.

106. The Commission recalls that, at the time when Björn was three

years old, the applicants introduced before the Social Council - on

11 September 1984 - a request for an extended right of access to him

and - on 19 October 1984 - a request that the public care be

terminated. The first request was only decided after more than one

year, on 3 October 1985, and the other request was only decided more

than 15 months after it had been made, i.e. on 6 February 1986.

107. The Commission observes that Section 9 of the 1980 Act provides

that cases concerning public care should be dealt with promptly. It

recalls that on 7 March 1985 the County Administrative Board had

instructed the Social Council to decide the question of access

urgently (cf. para. 21). It further observes that the Parliamentary

Ombudsman has strongly criticised the Social Council for the delay in

deciding on these requests (cf. paras. 34-35).

108. The Commission is of the opinion that access of the natural

parents to their child taken into public care is part of the very

essence of the guarantee in Article 8 (Art. 8). In particular in view

of Björn's age at the time, the delay in ruling on these requests

disclosed a lack of respect for the applicants' family life as

protected by Article 8 para. 1 (Art. 8-1) of the Convention.

109. Having found that the procedural delays during the period when

the care order was in force violated Article 8 para. 1 (Art. 8-1) of the

Convention, the Commission does not find it necessary to determine

whether there was, during that period, a sufficient substantive basis

for the care order and the restrictions on access to satisfy the

requirements of Article 8 (Art. 8) (complaint under point (b) in

para. 102).

b. The period when the prohibition on removal was in force

aa. Whether there has been a lack of respect for the applicants'

family life

110. The Commission recalls that, after the prohibition on removal

had been issued, the applicants brought appeals against this

prohibition to the Administrative Courts. The Commission has to

consider whether the length of the proceedings before these courts

was such as to disclose a lack of respect for the applicants' family

life contrary to Article 8 para. 1 (Art. 8-1) of the Convention

(complaint under point (c) in para. 102).

111. The Commission recalls that the prohibition on removal was

issued on 6 February 1986 and, after the applicants' appeal to three

Administrative Courts, the issue was finally settled on 7 November 1986

when the Supreme Administrative Court refused leave to appeal. These

proceedings, which took altogether nine months, cannot be considered

to have been unduly delayed.

112. The Commission finds that the length of proceedings concerning

the prohibition on removal does not constitute a lack of respect for

the applicants' family life as guaranteed by Article 8 (Art. 8) of the

Convention.

bb. Whether there has been an interference with the exercise

of the applicants' right to respect for their family life

113. The Commission recalls that, when the care order was lifted on

6 February 1986 by a decision of the Social Council, the applicants'

son Björn was four years old. In the same decision the Council

decided to prohibit the applicants from removing Björn from the foster

home until further notice. The prohibition on removal was confirmed by

the County Administrative Court and by the Administrative Court.

However, these courts decided that the prohibition should be limited

in time, the County Administrative Court to 15 December 1986 and the

Administrative Court of Appeal to 1 March 1987. The Commission

considers that this prohibition (complaint under point (d) in para. 102)

constituted an interference with the exercise of the applicants' right

to respect for their family life as guaranteed by Article 8 para. 1

(Art. 8-1) of the Convention (cf. Eriksson judgment, loc. cit., p. 24,

para. 58).

114. The Commission further notes that the Social Council which, once

the care order had been lifted, was under the obligation to take

appropriate measures to promote Björn's reunification with the

applicants acted in general in a way which was not conducive to that

result but would rather make reunification more difficult. In this

respect, the Commission notes the applicants' restricted access to

Björn during this period and also the decision of the Chairman of the

Social Council to prolong the prohibition on removal beyond the limit

of 1 March 1987 which had been determined by the Administrative Court

of Appeal. A further example of the Social Council's general attitude

is the court action which it initiated in December 1986 for the

transfer of the custody of Björn from the applicants to the foster

parents.

115. The Commission further considers in this context the incident

on 1 June 1986, when the foster father, against the applicants' will,

took Björn away from them in the Federal Republic of Germany and

brought him back to Sweden. The question arises whether the Swedish

authorities can be held responsible for this incident. It is true

that their involvement has not been fully clarified (para. 65).

Nevertheless, the fact that the social authorities actively assisted

the foster father in having his travel expenses reimbursed (para. 63)

would seem to indicate at least an implicit acceptance by these

authorities of the foster father's action. Some responsibility must

therefore rest on the authorities.

116. The Commission considers that these actions taken by the Social

Council during the period when the prohibition on removal was in force

(complaint under point (e) in para. 102) constituted a further

interference with the applicants' rights under Article 8 para. 1

(Art. 8-1).

cc. Whether the interferences were "in accordance with the law"

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

the Convention organs on several occasions. The Commission recalls

the following general principles.

118. 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 (Eriksson judgment, loc. cit., p. 24,

para. 59).

119. The applicants submit that the prohibition on removal was not

"in accordance with the law". They submit that the measures taken by

the social authorities show that the legal conditions in the law, as

well as the courts' judgments and decisions, are without importance as

they are not respected by the social authorities. The Government

submit that the decision to issue a prohibition on removal was in

accordance with Swedish law. In the Government's view the decisions

of the courts after that date were also in accordance with the law

within the meaning of the Convention. As regards the measures taken

by the social authorities after the care order had been lifted the

Government leave it to the Commission to decide whether they were

lawful.

120. The Commission first notes that under the case-law of the

Convention organs the relevant provisions of the Social Services Act

(para. 87) regarding the issuing of a prohibition on removal must be

considered to satisfy the requirements under Article 8 para. 2

(Art. 8-2) of the Convention as to accessibility and foreseeability

(see Eriksson judgment, loc. cit., p. 24, paras. 59-60).

121. Consequently, the issues which arise regarding conformity with

the law do not concern the quality of the applicable Swedish law but

are limited to the question whether certain measures taken by the

Swedish authorities were consistent with that law.

122. As regards the the prohibition on removal from 6 February 1986

to 1 March 1987 (complaint under point (d) in para. 102), the

Commission notes that it was first imposed by the Social Council

without any limitation in time. However, on the applicants' appeal,

its duration was subsequently limited by the County Administrative

Court until 15 December 1986 and by the Administrative Court of Appeal

until 1 March 1987.

123. The decisions to prohibit removal were taken after a full

examination carried out successively by the Social Council, the County

Administrative Court and the Administrative Court of Appeal. Hearings

were held before both courts. The applicants were present,

Birgitt Nyberg during both hearings and Lars Erik Nyberg during the

hearing before the County Administrative Court. The applicants were

represented by legal counsel and were able to submit all the arguments

and evidence they wished to invoke. The Supreme Administrative Court

refused leave to appeal.

124. Having examined, in particular, the judgments of the County

Administrative Court and the Administrative Court of Appeal, the

Commission finds no indication that the issuing of the prohibition on

removal and the maintenance in force of that prohibition until

1 March 1987 was contrary to Swedish law. The Commission is satisfied,

therefore, that the prohibition was "in accordance with the law".

125. As then regards the various actions of the Social Council

(complaint under point (e) in para. 102), the Commission recalls that

the prohibition on removal was meant to be a temporary measure and the

Social Council was therefore required to take adequate measures to

facilitate Björn's return to his parents at as early a time as

possible. Such measures should have included appropriate arrangements

for the applicants' access to Björn. However, the Commission considers

that the Social Council failed in its duty in this regard. In fact,

the Administrative Court of Appeal, in its judgment of 7 October 1986,

found that the measures taken by the Social Council had been

insufficient (para. 32) and the Parliamentary Ombudsman strongly

criticised the Social Council's inactivity (para. 69). In the

Commission's view, the access arrangements in the spring of 1986

(para. 75) were wholly insufficient to prepare for a quick transfer of

Björn. Moreover, it appears that under Swedish law the Social Council

did not even have any power to restrict the applicants' access to

Björn during the time when the prohibition on removal was in force

(para. 92).

126. It is a remarkable feature of the case that the Social Council,

while being under an obligation according to the judgment of the

Administrative Court of Appeal of 7 October 1986 to promote the

reunification of Björn with his parents, instituted proceedings before

the Stockholm District Court in December 1986 in order to have the

legal custody of Björn transferred to the foster parents and thus to

make Björn's return to his parents more difficult, if not impossible.

The Council persisted in this attitude on 9 February 1987 by asking

for a provisional transfer of the custody to the foster parents and on

2 April 1987 when it decided to maintain the action before the

District Court. It was not until 15 April 1987 that the court action

was withdrawn. This action regarding transfer of custody must be

interpreted as clear obstruction in the implementation of the judgment

of the Administrative Court of Appeal.

127. As regards the foster father's action to bring Björn back by

force from the Federal Republic of Germany to Sweden, the Commission

notes that the action itself was clearly illegal. It follows, in

the Commission's opinion, that the Social Council's involvement in the

action by assisting the foster father in obtaining reimbursement of

his expenses must be seen as an expression of the Council's support

for a highly objectionable action whose aim was to make it more

difficult to effect the reunification which it was the Social Council's

duty to promote.

128. The prohibition on removal was, according to the Administrative

Court of Appeal, to apply no longer than to 1 March 1987. However, on

26 February 1987 the Chairman of the Social Council issued a new

prohibition on removal. This decision was upheld by the Social

Council on 5 March 1987 and subsequently maintained in new decisions

by the Social Council on 19 March and 2 April 1987. On 15 April 1987

the prohibition on removal was revoked.

129. The Commission notes that the Chairman of the Social Council

took his decision on 26 February 1987, only a few days before the time

limit for the prohibition on removal set by the Administrative Court

of Appeal was to expire. The Chairman did not set any new date for

the termination of the prohibition on removal. The practical effect

of his decision was therefore to frustrate the efforts made by the

courts to ensure that the prohibition on removal was not prolonged

beyond a limited period. It would seem to follow from general

principles inherent in the rule of law that a decision in which the

Chairman of the Social Council in effect set aside an important part

of the judgment of the Administrative Court of Appeal could only be

accepted if there were important new circumstances which had not been

taken into account by the court. However, no such circumstances were

referred to. The Parliamentary Ombudsman also found (para. 70) that

the Chairman's decision was clearly in conflict with the intentions of

the legislation, as no new circumstances had emerged since the

delivery of the judgment.

130. An overall view of the actions of the Social Council during the

relevant time shows that the Council failed to fulfil its duty to work

for the reunification of Björn and the applicants. The Council's

actions included measures which constituted direct obstruction of the

courts' judgments and even support of the foster father's illegal

removal of Björn.

131. The Social Council's actions were therefore an interference

with the exercise of the applicants' right to respect for their family

life, which cannot be considered to have been "in accordance with the

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

dd. Whether the interferences pursued a legitimate aim

132. The Commission recalls that it has found the Social Council's

actions (complaint under point (e) in para. 102) which interfered with

the exercise of the applicants' right to respect for their family life

not to have been taken "in accordance with the law". This means that

one of the criteria in Article 8 para. 2 (Art. 8-2) was not fulfilled,

and in such circumstances, a further examination of whether these

interferences pursued a legitimate aim under that paragraph is not

required.

133. It remains to be examined whether the prohibition on removal

from 6 February 1986 to 1 March 1987 (complaint under point (d) in

para. 102) was ordered in pursuit of one or more of the aims indicated

in Article 8 para. 2 (Art. 8-2).

134. The applicants consider that the aim pursued by the social

auhorities was not a legitimate one, since they worked against the

reunification of Björn with his parents. The Government, on the other

hand, submit that the whole legislation at issue aims at protecting

the interests of the child and that this was also the purpose of the

actions taken by the courts and the social authorities in the present

case.

135. The Commission finds that the prohibition on removal was aimed

at protecting the interests of the child, which interests fall within

the expressions "the protection of health and morals" and "the

protection of the rights and freedoms of others", which are both

legitimate aims under Article 8 para. 2 (Art. 8-2).

ee. Whether the interferences were "necessary in a democratic society"

136. For the same reasons as indicated in para. 132, the Commission

does not find an examination required of whether the interferences

constituted by the Social Council's actions (complaint under point (e)

in para. 102) could be regarded as "necessary in a democratic society"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

137. It remains, however, to be examined whether the prohibition on

removal from 6 February 1986 to 1 March 1987 (complaint under point (d)

in para. 102) fulfilled this requirement of necessity.

138. "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. In the Court's view 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).

139. 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. Olsson judgment, loc.

cit., 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

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).

140. The Commission has already noted (para. 123) that the

prohibition on removal was based on successive examinations by the

Social Council, the County Administrative Court and the Administrative

Court of Appeal. The applicants were continuously involved in the

decision-making process. The Commission observes the courts' finding

that there was a risk which was not of a minor nature that Björn's

health and development would be jeopardised if he were to move from

the foster home immediately. The County Administrative Court found,

however, that the prohibition on removal in the long run could be in

conflict with Björn's best interests. The Court pointed out that

Björn should receive as soon as possible a clear message that after a

certain time he should move home to his natural parents and set a time

limit on the prohibition on removal. The Administrative Court of

Appeal extended the time limit as the Court found the measures taken

by the Social Council until then to create an insufficient basis for a

reunification between Björn and the applicants.

141. The above reason for the decision to prohibit the applicants

from removing Björn from the foster home was, in the Commission's

opinion, clearly "relevant" and, having regard to the margin of

appreciation of the Contracting States and to the procedures followed,

the Commission finds that the courts had "sufficient" reasons for

considering that it was necessary to maintain the prohibition on

removal until 1 March 1987, although this decision was made necessary

by the behaviour of the social authorities.

142. Consequently, with regard to the decision concerning the

prohibition on removal during the period from 6 February 1986 to

1 March 1987, the conditions in Article 8 para. 2 (Art. 8-2) for a

restriction of the right to respect for family life were satisfied.

c. Summing up

143. The Commission considers:

(a) that the delay in dealing with the applicants' request for

extended access and their request that the care be

terminated disclosed a lack of respect for the applicants'

family life as protected by Article 8 para. 1 (Art. 8-1)

(see para. 108);

(b) that it is not necessary to determine whether there was a

sufficient substantive basis for the care order and for the

restrictions on access before 6 February 1986 (see para. 109);

(c) that the length of the proceedings relating to the prohibition

on removal did not disclose a lack of respect for the applicants'

family life as protected by Article 8 para. 1 (Art. 8-1)

(see para. 112);

(d) that the prohibition on removal from 6 February 1986 to

1 March 1987 was an interference with the exercise of the

applicants' right to respect for their family life, which was

in accordance with the law and necessary for the protection of

health and morals and for the protection of the rights and

freedom of others within the meaning of Article 8 para. 2

(Art. 8-2) (see paras. 113, 124, 135, 141);

(e) that the Social Council's actions after the termination of the

care order were interferences with the exercise of the

applicants' right to respect for their family life, which were

not in accordance with the law within the meaning of Article 8

para. 2 (Art. 8-2) (see paras. 116, 131).

Conclusion

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

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

C. Article 3 (Art. 3) of the Convention

145. The applicants allege that Björn was kidnapped in the Federal

Republic of Germany in breach of Article 3 (Art. 3) of the Convention.

They contend that the social authorities condoned the kidnapping.

Article 3 (Art. 3) reads:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

146. The Government submit that there has been no violation of

Article 3 (Art. 3) of the Convention.

147. According to the case-law of the European Court of Human

Rights, treatment will be considered inhuman only if it reaches a

certain degree of severity, causing considerable mental or physical

suffering. Furthermore, as for the criterion "degrading treatment",

the treatment itself will not be degrading unless the person concerned

has undergone humiliation or debasement attaining a minimum level of

severity. That level has to be assessed with regard to the

circumstances of the concrete case (cf. Eur. Court H.R., Ireland v.

United Kingdom judgment of 18 January 1978, Series A No. 25).

148. The Commission finds that, although the involvement of the

social authorities was such as to engage some responsibility of

the Swedish Government under the Convention (cf. para. 115), the

circumstances surrounding the incident were not of such gravity as to

constitute a violation of Article 3 (Art. 3) of the Convention.

Conclusion

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

been no violation of Article 3 (Art. 3) of the Convention.

D. Article 6 (Art. 6) of the Convention

150. The applicants allege that the delay in the reunification of

their family, partly through administrative slowness, partly through

successive delays by different authorities, constitutes a breach of

Article 6 para. 1 (Art. 6-1) of the Convention, 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."

151. The Government admit that this provision is applicable but

contest that there has been any violation of Article 6 para. 1

(Art. 6-1) of the Convention.

152. The Commission recalls that it has examined the delay in the

proceedings under Article 8 (Art. 8) of the Convention (cf. paras. 105-108

and 110-112). It considers that it is superfluous to examine the same

questions also under Article 6 para. 1 (Art. 6-1) of the Convention.

Conclusion

153. The Commission concludes, by 11 votes to 2, that no separate

issue arises under Article 6 para. 1 (Art. 6-1) of the Convention.

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

154. The applicants submit that they had no effective remedy in

respect of the alleged violations of the Convention. They invoke

Article 13 (Art. 13) of the Convention which provides:

"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."

155. The Government submit that the court proceedings as such

constitute an effective remedy in respect of the applicants'

complaints under Articles 3 (Art. 3) and 8 (Art. 8) of the Convention.

They submit that there has been no violation of Article 13 (Art. 13)

of the Convention.

156. As to the interpretation of Article 13 (Art. 13), the Commission

recalls that according to the case-law an individual who has an

arguable claim to be the victim of a violation of the rights set

forth in the Convention, should have a remedy before a national

authority in order both to have his claim decided and, if appropriate,

obtain redress. The authority referred to in Article 13 (Art. 13)

need not be a judicial authority but, if it is not, the powers and

the guarantees which it affords are relevant in determining whether

the remedy before it is effective. Article 13 (Art. 13) does not

guarantee a remedy allowing a Contracting State's laws as such to be

challenged before a national authority on the ground of being contrary

to the Convention or equivalent domestic norms (see Eur. Court H.R.,

James and Others judgment of 21 February 1986, Series A no. 98,

p. 47, para. 85).

157. The Commission first notes that Article 13 (Art. 13) does not give a

right to a remedy against legislation as such. It follows that,

insofar as the applicants may be considered to allege that the Act on

the Care of Young Persons and the Social Services Act are too general

and vague to satisfy the requirements of Article 8 (Art. 8) of the

Convention, there can be no right to a remedy under Article 13

(Art. 13) of the Convention.

158. The applicants' complaints of the absence of effective remedies

must be understood to apply to all the issues enumerated in para. 102,

i.e.:

(a) the delay in dealing with the applicants' request for extended

access and their request that the care be terminated;

(b) the justification of the care order and the restrictions on

access applied until 6 February 1986;

(c) the length of the proceedings relating to the prohibition on

removal up to 1 March 1987;

(d) the justification of the prohibition on removal up to 1 March 1987;

(e) certain actions taken by the Social Council after the

termination of the care order, in particular the imposition of

restrictions on access during that period, the prolongation of

the prohibition on removal beyond 1 March 1987, the institution

of court proceedings for the purpose of transferring custody to

the foster parents and the alleged involvement of these

authorities in the foster father's action to bring Björn back

to Sweden from the Federal Republic of Germany.

159. As regards the applicants' complaints of delays in the

proceedings regarding access and the termination of the care order,

the Commission recalls that it has found these delays to constitute a

violation of Article 8 para. 1 (Art. 8-1) (para. 108). In considering

this matter under Article 8 (Art. 8), the Commission had regard to

elements similar to those which would also be relevant under Article

13 (Art. 13). In these circumstances, the Commission does not find

it necessary to examine separately whether there has also been in this

respect a violation of Article 13 (Art. 13).

160. In respect of the care order and the restrictions on access

which were in force until 6 February 1986, the Commission considers that

the applicants had at their disposal the remedies provided for in

Swedish law against such decisions. These remedies included

proceedings before both the Social Council and the Administrative

Courts. The Commission further notes that the applicants made use of

these remedies and obtained the termination of the care order on

6 February 1986.

161. As regards the length of the proceedings relating to the

prohibition on removal, the Commission notes that these proceedings,

which were conducted before three different Administrative Courts,

only lasted for nine months (cf. para. 111). Consequently, the

Commission considers that in this respect the applicants had no

"arguable claim" of a violation of Article 8 and were therefore not

entitled to a remedy under Article 13 (Art. 13).

162. Insofar as the justification of the prohibition on removal up

to 1 March 1987 is concerned, the applicants were entitled to use the

remedies provided for by Swedish law. These remedies included

proceedings before the Social Council and the Administrative Courts.

163. As regards the actions of the Social Council, the Commission

has found that these actions were not in accordance with the law since

they did not promote the aim of reunification which the Social Council

was under a duty to work for in accordance with the relevant court

judgments. The Commission notes that the applicants were entitled to

institute court proceedings in order to have the prohibition on

removal withdrawn and also enforcement proceedings under Chapter 21

Section 7 of the Parental Code on the basis that the care order had been

revoked and that, in view of the Social Council's actions, the

prohibition on removal should not prevent their reunification with their

son. The Commission considers that these various proceedings were an

effective remedy with regard to the actions of the Social Council.

164. Finally, as regards the applicants' allegation of a violation of

Article 13 in conjunction with Article 3 (Art. 13+3) of the Convention

(paras. 145-149), the Commission also finds that the applicants cannot

be said to have an "arguable claim" of a violation of the

last-mentioned Article.

Conclusion

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

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

F. Recapitulation

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

been a violation of Article 8 (Art. 8) of the Convention (para. 144).

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

been no violation of Article 3 (Art. 3) of the Convention (para. 149).

The Commission concludes, by 11 votes to 2, that no

separate issue arises under Article 6 para. 1 (Art. 6-1) of the

Convention (para. 153).

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

been no violation of Article 13 (Art. 13) of the Convention (para. 165).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

CONCURRING OPINION BY MM. J.A. FROWEIN, S. TRECHSEL AND SIR BASIL HALL

In para. 142 the Commission finds that the decision concerning

the prohibition on removal during the period from 6 February 1986 to

1 March 1987 was justified under Article 8 para. 2. We are unable to

come to that conclusion because, as the Commission correctly states in

para. 131, the activities of the Social Council which had decided on

the prohibition on removal were already in 1986 and until April 1987

in violation of Article 8 because they in fact obstructed the

reunification of Björn and his parents. The Administrative Court of

Appeal's decision to extend the period of the prohibition was

necessitated by that violation. Under those circumstances we cannot

find that the prohibition as such is justified under Article 8 para. 2.

PARTLY DISSENTING OPINION BY MR. H. DANELIUS JOINED BY SIR BASIL HALL

In the present case, two issues of length of proceedings arise,

i.e., on the one hand, with regard to the proceedings regarding the

applicants' requests for extended access to their son and for the

termination of public care (paras. 105-108 of the Report) and, on the

other hand, with regard to the proceedings relating to the prohibition

on removal (paras. 110-112 of the Report).

The proceedings regarding access and the termination of care

were conducted before the Social Council, an administrative authority,

but if the Council's decisions had been unfavourable to the applicants,

they would have been able to appeal to the Administrative Courts. The

delays in the proceedings before the Social Council, therefore, also had

an effect on the applicants' right to have their claims determined by

a court.

The proceedings regarding the prohibition on removal were

conducted before the Administrative Courts at three different levels.

Questions of delays in court proceedings, or in administrative

proceedings which in their turn delay the institution of court

proceedings, should normally be examined in relation to the right to

have a court hearing within a reasonable time guaranteeed by Article 6

para. 1 of the Convention. It is true that in certain cases regarding

public care of children the length of the proceedings has been

considered "a relevant, though subsidiary, factor" in the examination

relating to Article 8 of the Convention, in particular where the

length of the proceedings had created an irreversible situation and

made it virtually impossible to return the children to their parents

(Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987,

Series A no. 121-A, p. 31, para. 69 and R. v. the United Kingdom

judgment of 8 July 1987, Series A no. 121-C, p. 121, para. 74).

In the present case, these elements are not present. The time

element in the proceedings raised, according to the Commission's

analysis of the case, separate issues of respect for the applicants'

family life (paras. 105-108 and 110-112 of the Report) and was not a

subsidiary factor to be dealt with together with other more important

factors. Nor did the length of the proceedings cause an irreversible

situation, since the applicants' son was in fact returned to them in

the end.

I therefore consider that the said issues should be examined

under Article 6 para. 1 of the Convention. My conclusions are that

the delays in the proceedings regarding extended access and the

termination of public care were a breach of Article 6 para. 1,

whereas the proceedings regarding the prohibition on removal did not

constitute such a breach. My reasons for reaching these conclusions

are the same as those upon which the Commission based its conclusions

that in regard to the first proceedings there had been a lack of

respect for the applicants' family life, whereas with regard to the

second proceedings there had been no such lack of respect.

Having considered these issues under Article 6 para. 1, I

find no separate issue arising under Article 8 of the Convention with

regard to the length of the said proceedings.

For the said reason, I voted against the conclusion in para. 153

of the Report.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

__________________________________________________________________________

9 June 1986 Introduction of the application.

2 December 1986 Registration of the application.

13 March 1987 Commission's decision not to take any action

under Rule 36 of the Rules of Procedure.

Examination of the admissibility

7 May 1987 Commission's deliberations and decision to

invite the Government to submit observations

in writing.

4 September 1987 Government's observations.

17 November 1987 Applicants' observations in reply.

16 October 1987 Commission's decision to grant legal aid.

6 July 1988 Commission's deliberations and decision to

invite the parties to a hearing on the

admissibility and merits of the application.

4 October 1988 Hearing on admissibility and merits. The

parties were represented as follows:

Government: Mr. Hans Corell

Mrs. Christina Bergenstrand

Mr. Carl Henrik Ehrenkrona

Applicants: Mr. Lennart Hane

Mrs. Gunilla Hane

The applicants were also present.

4 October 1988 Decision to declare the application

admissible.

Examination of the merits

4 October 1988 Commission's deliberations on the merits.

11 March, 8 July, Commission's consideration of the state of

7 October and proceedings.

9 December 1989

6 and 12 March 1990 Commission's deliberations on the merits.

15 March 1990 Commission's further deliberations on the

merits, final votes and adoption of the Report.

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NYBERG v. SWEDEN

NYBERG v. SWEDEN