ERIKSSON v. SWEDEN
Doc ref: 11373/85 • ECHR ID: 001-45421
Document date: July 14, 1988
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Application No. 11373/85
Cecilia and Lisa ERIKSSON
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 14 July 1988)
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. 15-84) ........... 4
A. The particular circumstances of the case
(paras. 15-59) ..................................... 4
B. Relevant domestic law
(paras. 60-84) .................................... 19
a. The 1960 Child Welfare Act (paras. 60-61)....... 19
b. The Social Services Act and the 1980 Act
with Special Provisions on the Care of
Young Persons (paras. 62-79) ................... 20
aa. Compulsory care (paras. 63-71) ............ 20
bb. Prohibition on removal (paras. 72-79) ..... 22
c. The Parental Code (paras. 80-83) ............... 23
III. SUBMISSIONS OF THE PARTIES (paras. 85-180) ............ 26
A. The applicants
(paras. 85-119) ................................... 26
a. Article 8 of the Convention (paras. 85-103)..... 26
b. Article 2 of Protocol No. 1 to the Convention
(paras. 104-106)................................ 29
c. Article 6 of the Convention (paras. 107-116) ... 30
aa. The proceedings concerning the prohibition
on removal (paras. 107-109) ................ 30
bb. The request concerning access to the child
(paras. 110-113) ........................... 30
cc. The withdrawal of the appeal (paras. 114 -
116) ....................................... 31
d. Article 13 of the Convention (para. 117-119) ... 32
B. The Government
(paras. 120-180) .................................. 32
a. The facts (paras. 120-129) ..................... 32
b. Article 8 of the Convention (paras. 130-151) ... 35
c. Article 2 of Protocol No. 1 to the Convention
(paras. 152-155) ............................... 42
d. Article 6 of the Convention (paras. 156-175) ... 42
aa. The proceedings concerning the
prohibition on removal (paras. 156-158) .... 42
bb. The request concerning access to the
child (paras. 159-168) ..................... 43
cc. The withdrawal of the appeal
(paras. 169-175)............................ 45
e. Article 13 of the Convention (paras. 176-180) .. 47
IV. OPINION OF THE COMMISSION (paras. 181-263)............. 48
A. Points at issue
(paras. 181-182) .................................. 48
B. The first applicant (the mother)
(paras. 183-262) .................................. 48
a. Article 8 of the Convention
(paras. 183-222) ............................... 48
aa. Whether there was an interference with the
mother's right to respect for family life
(paras. 186-191) ........................... 49
bb. Whether the interference was "in accordance
with the law" (paras. 192-201) ............. 50
cc. The aim of the interference (para. 202) .... 52
dd. The necessity of the interference
(paras. 203-222) ........................... 52
b. Article 2 of Protocol No. 1 to the Convention
(paras. 223-227) ............................... 55
c. Article 6 of the Convention (paras. 228-258) ... 56
aa. The proceedings concerning the prohibition
on removal (paras. 231-239) ................ 57
i. The applicability of Article 6 para. 1
(paras. 231-233) ........................ 57
ii.The compliance with Article 6 para. 1
(paras. 234-239) ........................ 57
bb. The request concerning access to the child
(paras. 240-253) ........................... 58
i. The applicability of Article 6 para. 1
(paras. 241-248) ........................ 59
ii.The compliance with Article 6 para. 1
(paras. 249-253) ........................ 60
cc. The withdrawal of the appeal
(paras. 254-258) .......................... 61
i. The applicability of Article 6 para. 1
(para. 254) ............................ 61
ii.The compliance with Article 6 para. 1
(paras. 255-258) ....................... 61
d. Article 13 of the Convention (paras. 259-262) .. 62
C. The second applicant (Lisa)
(paras. 263-267) .................................. 62
D. Recapitulation
(para. 268) ....................................... 63
Dissenting opinion of Mr. H.G. Schermers ................... 64
Concurring opinion of Mrs G.H. Thune ....................... 68
APPENDIX I HISTORY OF THE PROCEEDINGS ................. 69
APPENDIX II DECISION AS TO THE ADMISSIBILITY ........... 71
APPENDIX III MEDICAL CERTIFICATES ...................... 109
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The first applicant, Mrs. Cecilia Eriksson, is a Swedish
citizen, born in 1942 and residing at Ulricehamn. She is a
child-minder (dagbarnvårdare) paid by the municipality. The second
applicant, Lisa Eriksson, is the first applicant's child and a Swedish
citizen. Lisa was born on 24 February 1978 and has, since March 1978,
been living in a foster home at Oskarström. The applicants are
represented before the Commission by Mrs. Siv Westerberg, a lawyer
practising in Gothenburg.
3. The Government are represented by their Agent Mr. Hans Corell,
Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.
4. The case relates to the prohibition for the first applicant
(the mother) to take the second applicant (her child) from the foster
home after the public care had been terminated. The applicants
complain that their right to respect for their family life has been
violated. The applicants furthermore complain of lengthy and unfair
proceedings, absence of effective remedies as well as of not having
had access to court. They invoke Articles 6, 8 and 13 of the
Convention as well as Article 2 of Protocol No. 1.
B. The proceedings
5. The application was introduced on 7 December 1984 and
registered on 31 January 1985. On 16 May 1985 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 present before 6 September 1985 their observations in
writing on the admissibility and merits of the application.
The Government's observations were dated 5 September 1985 and
the applicants' observations in reply were dated 25 October 1985.
On 11 December 1985 the Commission decided to invite the
Government to submit before 14 February 1986 supplementary written
observations on certain questions relating to Articles 6 and 13 of the
Convention.
The Government's supplementary observations were dated
12 February 1986 and the applicants' observations in reply were dated
21 March 1986.
6. On 16 May 1986 the Commission decided that legal aid should be
granted to the applicants.
7. On 5 March 1987 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 11 May 1987, the applicants
were represented by Mrs. Siv Westerberg. The first applicant was also
present at the hearing.
The Government were represented by their Agent, Mr. Hans
Corell, and as advisers Mr. Leif Lindgren, 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 11 May 1987, declared
the application admissible.
9. On 23 July 1987 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. The Government submitted further observations on
22 September 1987, and the applicants' further observations were dated
12 June 1987 and 24 September 1987.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. J. A. FROWEIN, Acting President
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
The text of the Report was adopted by the Commission on 14 July
1988 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 Government of their 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.
Appendix III contains various medical certificates.
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. Particular circumstances of the case
15. The first applicant, Mrs. Cecilia Eriksson, is a Swedish
citizen born in 1942. At the time of the introduction of the
application she lived at Köttkulla near Ulricehamn. She is now
residing at Köping. The second applicant, Lisa Eriksson, is the first
applicant's daughter. Lisa was born on 24 February 1978 and has, since
March 1978, been living in a foster home at Oskarström. The foster home
is situated approximately 160 kilometres from the first applicant's
previous home at Köttkulla.
The first applicant was married to Lisa's father, Mr. E, until
February 1986 when they were divorced. They also have a son, Jonas,
born in 1981. The first applicant was entrusted with the custody of
the son after the divorce.
16. On 23 March 1978 the Southern Social District Council (södra
sociala distriktsnämnden) of Lidingö decided that Lisa should be taken
into care pursuant to Sections 25 (a) and 29 of the 1960 Child Welfare
Act (barnavårdslagen) on the ground that the conditions in the home
were unsatisfactory. She was placed in the foster home at Oskarström.
At that time the first applicant had personal difficulties.
She had been convicted for dealing with stolen goods and for
possession of narcotics and sentenced to 14 months imprisonment. Later
during her stay in prison, the first applicant went through a
religious conversion and she is now a member of the Philadelphia
congregation (Pentecostal movement).
17. In May 1980 the first applicant applied to the Social District
Council that the care of her daughter be terminated. On 8 May 1981 the
Council rejected the application. The first applicant appealed to the
County Administrative Court (länsrätten) of Stockholm, which on
22 October 1981 rejected the appeal. The first applicant submitted a
further appeal to the Administrative Court of Appeal (kammarrätten) of
Stockholm which, on 11 March 1982, rejected the further appeal.
18. On 1 January 1982 the public care of Lisa under the 1960 Act
was transformed into care pursuant to Section 1 (1) of the 1980 Act
with Special Provisions on the Care of Young Persons (lagen med särskilda
bestämmelser om vård av unga) as a result of the new legislation which
entered into force on that date.
19. In March 1982 the first applicant again applied to the Social
District Council requesting that the care be terminated. She also
applied for permission to meet Lisa in the first applicant's home. Both
requests were rejected by the Council. The first applicant appealed
to the County Administrative Court.
On 3 November 1982 the Court decided, as regards the question
of care, to reject the appeal since preparatory contacts between Lisa
and her natural parents had not taken place to a sufficent extent. As
regards the question of contact with Lisa, the Court referred the case
back to the Social District Council for reconsideration.
20. The first applicant appealed to the Administrative Court of Appeal.
21. In the meantime, on 21 January 1983, the Social District
Council, considering that there were no longer any reasons for care
under the 1980 Act, decided that the care of Lisa should be
terminated. In these circumstances the Administrative Court of Appeal
found no reason to examine the further appeal.
22. In its decision of 21 January 1983 the Social District Council
decided:
- that the care of Lisa should terminate in accordance with
Section 5 para. 1 (a) of the 1980 Act and that the decision
should be effective on 15 February 1983;
- to prohibit the natural parents Mr. E and the first applicant,
until further notice, from taking Lisa from the foster home.
This decision was made pursuant to Section 28 of the Social
Services Act (socialtjänstlagen);
- to request from the Children's and Juveniles' Psychiatric
Clinic (barn- och ungdomspsykiatriska kliniken) of Halmstad
recommendations as to the contacts between Lisa and the
natural parents against the background that the long term
aim of the Social District Council is that Lisa should return
to her natural parents' home;
- that the said recommendations should also contain the Clinic's
view on a possible stay for Lisa with her natural parents
during the holiday period in the summer;
- that the contacts between the natural parents and Lisa should
consist of one meeting before 1 March 1983, that at least one
of the foster parents should be present at that meeting and
that one other person should also be present.
23. The decision of the Social District Council was taken on the
basis of a report on an investigation dated 17 January 1983 in which
it was stated that the reasons for continued care under the 1980 Act
with Special Provisions on the Care of Young Persons no longer
existed. The order pursuant to Section 28 of the Social Services Act
concerning a prohibition on removal (flyttningsförbud) until further
notice implied that the first applicant and her husband were not
allowed to move Lisa from the foster home. This decision was based on
inter alia five medical certificates, all issued by the chief doctor
Mrs. EL and a curator, Mrs. GT of the Children's and Juveniles'
Psychiatric Clinic of Halmstad. The certificates were dated 8 April
1981, 24 June, 4 October, 6 and 16 December 1982. In these certificates
it was stated, inter alia, that Lisa was deeply rooted in the foster
home and that her transfer to her natural parents' home would
jeopardise her mental health and development. Further details on the
contents of these certificates appear in Appendix III.
24. A further medical certificate dated 24 February 1983 and signed by
the same persons was obtained by the Social District Council. It read
inter alia as follows:
"As regards the question of how Lisa's access contact with
her natural parents should be designed in view of your
long-term aim that the girl should be returned to her
natural parents we submit the following: Our previous
recommendation of access once every second month remains.
The reasons for this position are indicated in our
certificate of 6 December 1982 where we have also indicated
the form of access. We want to add that as long as Lisa,
after these meetings, reacts with such clear nervous
symptoms as so far, the contacts ought to take place in the
foster home. Length of time 3-4 hours per meeting. - We
advise against a possible stay of Lisa with her natural
parents during the holiday period this summer. Our
recommendation about the access is made having regard to
what Lisa can manage at present. Therefore we consider that
it is too early for Lisa to stay with her natural parents
this summer. Even if our aims differ from yours we find
it important that Lisa has contact with her natural parents.
If this contact is reinforced we fear that Lisa's reaction
can become so serious that the contact with the natural
parents can be spoilt for a long time."
25. On 31 March 1983 the Social District Council decided that the
first applicant had a right of access to Lisa in the foster home every
second month.
26. The first applicant, represented by legal counsel, appealed to
the County Administrative Court of Stockholm against the Social
District Council's decision to issue a prohibition on removal. She
claimed, in the first place, that the prohibition on removal be
quashed and, in the second place, that the prohibition be limited in
time. The Court held a hearing in the case on 13 September 1983. It
heard chief doctor EL at the Children's and Juveniles' Psychiatric
Clinic of Halmstad and Lisa's natural father. The Court also heard an
expert from the County Administrative Board (länsstyrelsen). The
County Administrative Board had also submitted a written opinion to
the County Administrative Court. This opinion read inter alia as
follows:
"The mother appears to be an unreasonable woman who at any
price wishes to gather around herself the children which she
has borne without having regard to the children's emotions
or feelings. It is said that she has never admitted that
the children needed care and fostering outside the home
despite considerable criminality and misuse of drugs by
the parents, which to the County Administrative Board seems
to be an unlikely high tolerance of misuse and criminality
in connection with the care of children. In line with this
is her hostility towards the foster home and the authorities
which have taken care of Lisa while the mother herself has
been uncapable of caring for the child - and which still
prevents her from establishing contact with the child. ...
- The mother's unreasonable attitude appears to the County
Administrative Board as an important element in this context.
Lisa would, if she were moved to her home, need therapy against
problems of separation. She would also need continued contact
with the foster home. The experience which has been gathered
of the first applicant until today shows that she cannot be
induced to co-operate. The co-existence between the natural
parents seems to be on the woman's conditions. The natural
father does not play any role in this context but can
according to the woman leave if he jeopardises the removal
of Lisa. - All available experts advise against a removal
in this case. The child's feelings towards its parents
have nothing to do directly with the conditions at the
birth. The emotional ties come from the daily satisfaction
of the child's need of physical care, nourishment, love and
stimulation. - The first applicant's home is obviously
physically rehabilitated but there still remain a lot of
more subtle values to restore, such as warmth, harmony and
reasonable attitudes in order to create a better functioning
contact between Lisa and the first applicant. - The County
Administrative Board considers that Lisa should remain in
the foster home. This proposal is, in the Board's opinion,
in line with the intentions of Section 28 of the Social
Services Act concerning prohibition on removal. Lisa has at
present enough difficulty to live with the knowledge that
she is not the foster parents' own child or with the threat
that at any time she may be forced to leave the only
security she knows. When Lisa grows older, experience tells
that the curiosity for the natural parents and her own
origin will come. Only then is she ripe to take the first
steps towards a reunification. Until then the County
Administrative Board considers that a removal to the natural
parents is in conflict with the child's best interest."
27. At this stage a further medical certificate, dated 7 September
1983, had been issued by the Children's and Juveniles' Psychiatric
Clinic. It stated inter alia the following:
"For our part it is self-evident that Lisa must stay in the
foster home. The research during the last decades in the
area of child psychology and psychiatry has been
comprehensive. It has shown that the child-parent
relationship is of an enormous importance to the child and
what it can mean to break it up. A breaking up of this
relationship always implies a psychological trauma for the
child. One of our tasks at the children's psychiatric clinic
is to take a stand as to whether a child should be placed in
a foster home or not. In these cases the decisive question
is what has the least detrimental effects for the child, to
remain in an unsatisfactory environment or to come to a new
home. In the case of Lisa it is another matter. She lives
in a good home environment which well satisfies her needs.
It is accordingly in this case not a question of moving Lisa
for her own best. Our assessment is still that a removal of
Lisa would imply a risk for her mental health which is not
of a minor nature."
28. On 10 October 1983 the County Administrative Court granted
the appeal insofar as it set a time-limit until 31 March 1984 for the
prohibition on removal. The reasons of the Court read as follows:
"Under Section 28 of the Social Services Act the Social
Council may for a certain period or until further notice
prohibit the guardian of a child from taking the child from
a foster home if there is a risk which is not of a minor
nature that the child's physical and mental health will be
damaged if it is separated from the foster home. Among the
circumstances which should be taken into consideration the
preparatory works relating to this provision refer first and
foremost to the age of the child, its degree of development,
abilities and emotional ties. Furthermore, it is taken for
granted that account is taken of the time the child has been
taken care of in a place other than with its natural
parents, the living conditions which the child has and which
it will receive if moved. It is furthermore said that the
parents' contacts with the child during the time they have
been separated should be taken into account.
As regards first of all the conditions in the foster home
there is no indication other than that Lisa has received ...
... the best possible care in the foster home. Lisa's foster
brother Jimmy, who is one year younger than Lisa, also lives
in the foster home. As regards the spouses Eriksson's home,
it is, since a couple of years, situated at Köttkulla near
Ulricehamn. There is no information other than that the
conditions in the home have continued to develop favourably.
The first applicant stays at home and her husband works
outside the home. In this home lives Lisa's younger brother
Jonas, born in 1981, and a sister who is a teenager.
The natural parents' contacts with Lisa have become more
regular only during the last two years, under the assistance
of among others Mrs. HS. Thus until 1982 there have been
meetings between Lisa and the parents in June and in August
at Halmstad, in September at Köttkulla and in November at
Oskarström. Lisa has met her mother on some occasions
during 1983, the latest being on 25 August when the brother
Jonas also accompanied them to Oskarström. From what has
been established about the circumstances surrounding the
meetings, it is probable that (the first applicant's)
behaviour is not the only reason for the meetings not having
been more frequent. The foster parents and also the
attitudes of other persons involved in the question of the
removal of Lisa have probably had an important influence.
Mrs. EL has in several written opinions and at the Court's
oral hearing expressed the opinion that the child
psychiatric treatment of Lisa has had, as its main
objective, not to promote an immediate removal of Lisa but
instead to improve the contacts between Lisa and the
parents. At the same time it has been clarified that the
psychiatric treatment of Lisa takes as its starting point
Mrs. EL's opinion that Lisa should stay forever in the
foster home. Finally, it should be mentioned that the Social
District Council, in connection with the appealed decision,
stated that the removal of Lisa should be the long term aim
for the work of the Council in the matter.
Lisa has stayed in the foster home since shortly after her
birth. Obviously she is now, at the age of five years,
strongly rooted in this home. She has met her natural
parents only to a small extent. A removal of Lisa to the
natural parents must therefore be presumed to imply
considerable risks for Lisa's health. However, it has been
established, inter alia, through Mrs. EL's testimony that
Lisa is a normally developed five year old girl who
intellectually is rather over than under the average level.
This and the other circumstances make it sufficiently
probable that a removal of Lisa - in any case after certain
further preparatory contacts with the natural parents - will
imply only a passing disturbance in her development. The
County Administrative Court has therefore finally concluded
in the case that the appealed decision should be limited in
accordance with the first applicant's second motion. As a
result the prohibition on removal may, during a clearly
limited period, be used in order to further build up the
relations between Lisa and her parents."
29. The Social District Council appealed to the Administrative
Court of Appeal of Stockholm requesting that the prohibition be
unlimited in time. The first applicant, represented by legal counsel,
requested in the first place that the prohibition be quashed and in
the second place that the judgment of the County Administrative Court
be confirmed.
30. The Administrative Court of Appeal held a hearing in the case.
It heard the chief doctor Mrs. EL and Lisa's foster mother. The National
Board of Health and Welfare (socialstyrelsen) submitted, on 13 February
1984, an opinion to the Court. This opinion read inter alia as follows:
"As regards the assessment from a child psychiatric point of
view it is noted that the Children's and Juveniles' Psychiatric
Clinic of Halmstad has clearly expressed the opinion that a
removal of Lisa from the foster home ought not to take place.
This view is, in the opinion of the National Health and Welfare
Board, well-founded as based on knowledge of the development and
need of children applied to the special situation of Lisa.
It is the opinion of the National Board of Health and Welfare
that a change of foster parent is always a serious interference
for a child and should not take place unless there are strong
reasons for it, for instance that the child is badly cared for
where it is staying. Through child psychological research and
clinical experience it is known that separations can imply a
risk of serious mental damage to the child.
In this case the now six year old Lisa has, since a very young
age, been staying in the present foster home, where she has
developed well together with the adults to whom she is attached.
She is in an important phase of development and has not yet
attained the age and maturity where she can decide for herself.
She ought not to be placed in such a situation of choice. There
are no established contacts with the natural parents despite
efforts which have been made. From the documents it appears that
the father has not participated in the meetings with the foster
parents which were arranged during 1983. He has not seen Lisa
since 1982.
In this case new facts have been added which change the picture
of the parents' home. From (the documents received from the
court) it only appears that the rehabilitation of the parents has
developed well. From a telephone contact with the social
director of Ulricehamn on 17 January 1984 it appeared that the
father had lost his temporary job and had started to drink
alcohol again. He has been convicted of drunken driving and
lost his driving licence. The mother's post as a child-minder
for a child is a temporary post while the ordinary employee is on
maternity leave. There is however no criticism levelled against
the mother in her work.
...
Against the background of the facts of this case, it is the
assessment of the National Board of Health and Welfare that
Lisa, if she is moved from the foster family, will be
subjected to a risk, which is not of a minor nature, of harm
to her psychological health and development. It is
therefore important that she can stay in the foster home
..."
31. By judgment of 6 March 1984 the Administrative Court of Appeal
amended the judgment of the County Administrative Court to the effect
that the time-limit for the prohibition on removal was set at 30 June
1984. The Court's reasons read as follows:
"A placement of a child in a foster home should in principle
aim at a reunification of the child and the parents. The
care should terminate when the circumstances which were at
the basis for the care decision no longer exist. A
prohibition on removal under Section 28 of the Social
Services Act is mainly supposed to be a temporary measure to
prevent that the parents immediately take the child home at
an unsuitable time or in abrupt forms. The efforts to
reunite may however take time in order not to result in
persistent damage as a result of the removal.
On 21 January 1983 the Social District Council terminated
the previous decision on the care of Lisa under the Act with
Special Provisions on the Care of Young Persons and in
connection therewith it declared that the long term aim
of the Council was that Lisa should be reunited with her
natural parents.
From the investigation in the case nothing has appeared
which gives reason to doubt that the first applicant is well
suited to take care of children. In the home lives Lisa's
younger brother Jonas. In addition (the first applicant)
has, as municipal child-minder, the care of a further child
in the home.
In its decision of 31 March 1983 the Social District Council
has decided that (the first applicant) should have a right to
access to Lisa every second month in the foster home. At
the hearing before the Administrative Court of Appeal it
appeared that one or more representatives of the Social
District Council had been present on these sporadic
occasions of contact decided by the Council, that on these
occasions (the first applicant) had never been given the
opportunity to be together with Lisa alone and that the
foster mother had not considered that the time was yet ripe
to inform Lisa that it is Lisa's mother who visits the
foster home. (The first applicant) has not yet been allowed
to meet Lisa in her own home.
The Administrative Court of Appeal makes the following
assessment. More than one year has elapsed since the Social
District Council decided that the care under the Act with
Special Provisions on the Care of Young Persons should
terminate and that the Council should promote the
reunification of Lisa and her natural parents. From the
investigation of the case, there is no appearance of (the
first applicant) not having accepted what the Social District
Council has prescribed as regards her access to Lisa during
this period.
The Administrative Court of Appeal finds that what the
Social District Council has done so far, as preparatory
measures for the removal of Lisa, has obviously not been
calculated to promote the conditions for such a
reunification to any measurable extent. The situation today
as regards the removal of the child to the parents can be
assessed not to be different from what it was one year ago.
Lisa still does not even know that it is her mother who
visits her in the foster home. The antagonism which the
County Administrative Court found to exist between the
foster mother and (the first applicant) still prevails
according to what has appeared before the Administrative
Court of Appeal at the hearing. This antagonism is however,
in the opinion of the Administrative Court of Appeal, not
necessarily an absolute obstacle to active preparatory
measures for the transfer of the child.
It is undisputed in the case that the transfer of Lisa to the
parents' home without preparatory measures must be presumed
to imply considerable risks to the child's health. (The
first applicant) has declared that she is well aware of these
risks and she has said that she does not wish to take the
child home finally until this can be done without any risk
of harming the child. Making an overall assessment of what
has been established in the case the Administrative Court of
Appeal finds nevertheless that there are reasons for a
temporary prohibition on removal. In view of what has been
established it is reasonable to limit the prohibition on
removal in time. The preparatory measures which have so far
been taken have, as far as it appears from the case, not
been such that a removal of the child can take place
within the time-limit prescribed by the County Administrative
Court. The Administrative Court of Appeal, which assumes that
the Social District Council, in pursuing its aim to reunite
the child and the natural parents, will as soon as possible
try new possibilities and intensify its work in this respect,
finds that some more time for preparatory work is necessary
before the prohibition on removal can be lifted."
32. Both the first applicant, with the assistance of legal counsel,
and the Social District Council appealed to the Supreme Administrative
Court (regeringsrätten). The first applicant later withdrew her
appeal.
33. In its judgment of 11 October 1984 the Supreme Administrative
Court granted the appeal of the Council by confirming the Council's
decision of 21 January 1983 to the effect that the prohibition should
be valid until further notice.
The Court gave the following reasons for its judgment:
"Under Section 28 of the Social Services Act, the Social
District Council may, where the interests of the child so
require, prohibit the guardian from removing a child from a
foster home provided there is a risk, which is not of a minor
nature, of harming the child's physical or mental health if it
is moved from the home. When a child is placed in a foster home,
the aim should normally be to bring the child and its parents
together again. A prohibition under Section 28 of the Social
Services Act ought to be regarded as a temporary measure while
awaiting an appropriate time for moving the child from the foster
home without the risk of such detrimental effects as indicated
in the said section.
The following circumstances should inter alia be taken into
consideration when deciding on a prohibition on removal: the
child's age; stage of development; character and emotional
relations; the time the child has been taken care of by someone
else than its natural parents; the present living conditions
of the child and those it will have as well as the contact
between the parents and the child during the time they have been
separated.
Since (the first applicant) has withdrawn her appeal against the
judgment of the Administrative Court of Appeal, the Supreme
Administrative Court must examine whether the prohibition on
removal shall be in force until further notice, as claimed by the
Social District Council, or limited in time, in accordance with
the position adopted by the first applicant.
The examination of the question of the duration of a prohibition
on removal must be made in the light of the existing risk to the
child's physical or mental health if separated from its home.
If, already at the time of the issue of the prohibition, it is
considered, with sufficient certainty, that such a risk will
not be at hand after a certain date - when certain actions may
have been taken or the effects thereof have occurred - the
prohibition ought to be limited until that date. However, if it
is uncertain when the child could be transferred to the parents,
without this involving a risk which is not of a minor nature,
the prohibition ought to be in force until further notice and
the question of a transfer raised again at a later stage
when the risk of harming the child's health could be better
assessed. Irrespective of the duration of the prohibition,
the Social District Council is obliged to see to it that
appropriate actions aiming at a reunification are taken
without delay. Such actions are required in particular
when the Council, in accordance with what has been said, has
found reasons to order a prohibition until further notice.
Otherwise there is a great risk that, in the meantime, the
child will become more closely linked to the family it is
about to leave.
The efforts to establish a contact between Lisa and her
natural parents, which began already some three years ago,
have as far as can be seen from the documents not progressed
any further than to the point that Lisa occasionally has seen
them together with her present family and generally - as a
result of the orders given by the Social District Council -
also in the presence of an adult outsider. The meetings have
been coloured by the antagonism between the adults of the two
families, and Lisa, who appears only at a late stage to have
realised who her natural parents were, has reacted before and
after these meetings with anxiety and with a psychological
state of strain. What has appeared concerning the intensity
of Lisa's reactions clearly shows that a longer period of time
than decided by the lower courts is required before a transfer
could be made. Since appropriate measures aiming at the
reunification have not yet been taken there is, at the moment,
no basis for setting a date on which the transfer could be
made without jeopardising Lisa's mental health. The
prohibition on removal shall therefore be in force until
further notice."
34. On 28 November 1984 the first applicant requested the Social
District Council of Lidingö that her child be returned to her custody.
This request was dismissed by the Council on 18 January 1985. The
Council found that the risk for the child's mental health resulting
from a removal from the foster home would be the same as when the
Supreme Administrative Court rendered its judgment of 11 October 1984.
35. The first applicant appealed to the County Administrative
Court. She requested that the prohibition on removal be quashed and
that the child be returned to her in accordance with the rules laid
down in Chapter 21 of the Parental Code (föräldrabalken). On 8 October
1985 the first applicant withdrew her appeal and, as a result, the
Court struck the case off its list on 23 October 1985.
36. Prior to the withdrawal of the appeal, on 6 August 1985, the
first applicant lodged with the Social District Council of Lidingö a
request for access to the child every second weekend. The request was
dealt with by the Council on 16 August 1985. It decided "not to decide
at present on the access and the frequency of access". Since there
was no legal provision on which a decision on access could be based
the Council noted that it could not give any notice of appeal.
37. On 15 January 1987 the first applicant made a fresh request to
the Social District Council that the prohibition on removal be lifted.
On 13 March 1987 the Council decided to investigate the consequences
for Lisa if the prohibition on removal was lifted.
38. By letter of 21 May 1987 the Children's and Juveniles'
Psychiatric Clinic of Halmstad sent a letter to the Social District
Council of Lidingö. The letter was signed by Mrs. EL and by a
certified psychologist Mrs. AC The report referred to previous
certificates, in particular the certificate of 6 December 1982
(see Appendix III at p. 111). The letter read inter alia as follows:
"The years 1983 and 1984 were very restless for Lisa. From
there, curator Mrs. GT and Dr. EL continued the contact
with the foster home and Lisa and participated sometimes in
Lisa's contacts with (the first applicant) up to 1984.
During these years the relation between the two pairs of
parents deteriorated mainly because of (the first applicant's)
activities in connection with the judicial proceedings which
then took place.
Child therapy with Lisa started in January 1985 and
terminated in December 1986 with the exception of the
summers. In 1985 Lisa came once a week and during 1986 she
came each fortnight. It was the foster home which wished to
have help for Lisa since she showed a number of symptoms
that she did not feel well. She was anxious, did not dare
to leave her foster mother and was provocative towards her
foster brother who is of the same age. Mrs. AC, the psycho-
therapist, took care of Lisa's therapy. The therapy showed
a psychologically disturbed girl. Lisa was difficult to
reach, she was suspicious and looked upon the therapist as a
threatening person. When Lisa subsequently could trust the
therapist she brought forward her inner feelings. She was
dominated by sudden sadistic and destructive feelings. Her
fantasies were dominated by children who were exterminated,
killed, destroyed or buried. She also wanted herself to
destroy and exterminate. Her emotional state was dark,
depressive, without hope. She stated that she was powerless,
her needs and wishes were not listened to. Eventually she
started to speak about her contact with (the first applicant),
her natural mother. She then said that she was terribly
frightened that (the first applicant) should take her as she
wanted to live with her (foster) mother and father. On one
occasion in November 1985 Lisa said that the first applicant
had said that she never would need to move from her mother and
father, 'I was damned, damned happy', Lisa commented.
In March 1986 Lisa said that she had again been frightened
by (the first applicant). When Lisa was alone with the first
applicant she asked Lisa to stay with her for some days during
the Easter holiday. When Lisa refused, (the first applicant)
reacted by becoming angry and threatening Lisa that she would
see to it that Lisa would live with her for good. On 21 April
1986 (the first applicant) met the psychologist Mrs. AC at the
place of Mrs. HS and Mrs. WAG at Borås. (The first applicant)
said that she had never threatened Lisa. Although the
statements are contradictory, it is obvious that Lisa has been
frightened by the first applicant.
This spring Lisa has met Mrs. AC twice after Lisa's visits to
(the first applicant) in accordance with the wishes of the
foster parents. On both these occasions Lisa declared that she
felt forced to visit (the first applicant). She is afraid and
has made a detailed plan on how she should be able to escape
from (the first applicant). - On 29 April 1987 Mrs. EL meets
Lisa together with the foster parents at the Clinic for the
first time since June 1984. Lisa is a nine year old school
girl who now in speech and in writing can account for what she
thinks and feels. It is shocking to hear how insecure she
still is. She is still deeply afraid that the first applicant
shall come and fetch her one day, afraid that (the first
applicant) should take her away from her mother and father.
She tells that she has a hiding place to which she intends to
go if it should become necessary. She is glad of two small
dogs which Jimmy and she have. However, she dreams about a
Newfoundland dog which is big (a watch-dog). Lisa spends the
summers with her family in Gotland. There she is not afraid of
being taken by (the first applicant) as she does not know
where she is, 'when we go there, I become glad', she says.
Also that she will take her life if she shall live with (the
first applicant). The foster father and Lisa speak about the
visit to (the first applicant) in January 1987. Lisa did not
want to accept (the first applicant's) wishes to have her
photographed by a photographer together with Jonas. The
foster father then heard that the first applicant said to Lisa
that she would see to it that Lisa would live with her within
a year. After this Lisa visited (the first applicant) twice.
The latest visit was again disturbing for Lisa. Lisa here
says that the first applicant dragged her in through the door.
When Lisa was sad (the first applicant) said to the girl that
she had to choose between living with (the first applicant) or
visiting her once a month. Lisa says she kept her outdoor
clothes on during the visit. Lisa tells that (the first
applicant) on some occasions had said to her that if she is
angry when she is with (the first applicant) she must live
there. Lisa gives the impression of being hurt and humiliated
over the fact that (the first applicant) does not listen to
her and is through the conversation unfavourable in her
attitude towards (the first applicant). Lisa is also
unfavourable towards (the first applicant) in her diary which
she has brought along. In it, she has written down her
thoughts and feelings after the latest visit. We also
received a copy of a letter Lisa has written to her friend
Camilla this spring. From this Lisa's feelings, despair and
powerlessness clearly appear, inter alia it is said: 'I will
kill myself if I shall live with her'. Lisa still feels that
the first applicant is a threat, the person who wants to
separate her from her mother and father. The contact between
Lisa and (the first applicant) has been prevented by the fact
that (the first applicant), over and over again, has
threatened to take Lisa away from her family and by the fact
that (the first applicant) is unable to listen to the wishes
and feelings of Lisa. In the description of Lisa (the first
applicant) cannot control her disappointment when Lisa rejects
her. - How will Lisa react to a possible removal to (the first
applicant) in our opinion? She will regress. There is a
great risk that the regression will go so far that she
loses contact with reality i.e. becomes psychotic. A state
which is incredibly difficult to treat and which involves a
great risk of becoming permanent. Inter alia she will
withdraw within herself and will not adapt herself to the
world around her. She will not be able to go to school since
she is occupied by her inner anxieties and chaos. She will
perceive her removal from her foster parents as deep
treachery on their behalf. In this pessimistic assessment
we base ourselves on material and the reaction which came
forward during Lisa's therapy. Lisa is weak, lacks
integrity and she has less psychic resources to manage
separation. The conversations that we have had with Lisa
this year have had a horrifying nature. She says that she
does not want to live if she has to move to (the first
applicant). For many years she has lived in despair of
being taken away from her home by (the first applicant).
In our opinion Lisa must be able to stay in her foster home
for good. If Lisa is to be separated from her home and move
to (the first applicant), there is a risk, which is not of a
minor nature, that Lisa's mental health will irrevocably be
damaged, in addition there is a risk for the life of the
girl."
39. On 5 June 1987 the Social District Council rejected the first
applicant's request that the prohibition on removal be lifted. The
first applicant has appealed against this decision to the County
Administrative Court of Stockholm.
40. The first applicant has also lodged an application with the
County Administrative Court of Stockholm requesting that Lisa be
transferred to her immediately in application of Chapter 21 Section 7
of the Parental Code (föräldrabalken). The Court held a hearing on
26 August 1987.
The Court heard, among others, Dr. E as a witness. After the
hearing the Court decided to appoint a psychological expert as the
Court's expert (sakkunnig). The Court stated that this expert would
be somebody who has not taken part in earlier investigations regarding
Lisa. The decision of the Court contains, after a summary of the
information submitted by the witnesses, the following:
"The Court's problem is that the law in force does not quite
reflect these latest fundamental principles which are
generally recognised within medical and behavioural sciences,
that is that a child in Lisa's situation should never be
transferred to its parent even if that parent is the child's
guardian. The true meaning of the law is, especially as
it has been interpreted by certain courts of appeal, that
there is a very high level of tolerance regarding the pain
and suffering to which a child can be exposed when being
transferred to its parent in order to let the parent have
access to the child or definitely be transferred to it.
This level can be made higher or lower considering the
assessments made as to the seriousness and length of the
risks for the child's future health and development after
the period when a reunification is carried out. When making a
legal assessment the child's state of health also before a
reunification is carried out shall be taken into account. The
Court feels that it would be correct to say that the law in
force still recognises the parents' right to bring up and take
care of their children themselves to a larger extent than is
the case in modern medical and behavioural sciences within
which the concern for the child's well-being is the only
guideline.
When examining the case the Court therefore has to strike a
balance between Cecilia Eriksson's right to be with Lisa and
to bring her up and the risks involved regarding Lisa's future
health and development if Cecilia Eriksson's legitimate demands
are met."
41. The appeal against the prohibition on removal (para. 39) and
the application under the Parental Code were rejected by the County
Administrative Court on 15 June 1988.
In this judgment the Court stated inter alia the following:
"In the opinion of the Court it is evident that high demands
must be placed on the Social District Council when it comes to
taking measures to facilitate meetings between (the
applicants) in order to prepare the ground for a
reunification. It is therefore no excuse that the contacts
between the persons involved, the authorities and the
personnel giving treatment have been strained. The passivity
is, by way of example, shown by the fact that the Council has
taken no measure in view of the deteriorating relations
between (the first applicant) and Söderling-Gard (the family
consultant engaged by the Social District Council).
Söderling-Gard has expressed the opinion that (the first
applicant) would never get Lisa back and has treated her on
the basis of this opinion...
It is remarkable that the Council, in these circumstances
which must have been obvious to the Council during a long
time, did not take any measures to ensure that Söderling-Gard
would either act in accordance with the judgment of the
Supreme Administrative Court or engage someone else in order
to ensure that this was effectively done.
The Council has not taken active measures, as intended, to
promote access and reunification effectively. By not doing so
the Council has, on the contrary, contributed to reducing the
possibilities of lifting the prohibition on removal. The
Council has rather, by its relative passivity, achieved that
the prohibition on removal becomes self-fulfilling."
42. The Social District Council has recently introduced an action
before the District Court (tingsrätten) of Sjuhäradsbygden requesting
that the civil custody of Lisa be transferred to the foster parents in
application of Chapter 6 Section 8 of the Parental Code. The Court
held a hearing on 10 October 1987 after which it ordered that the
competent Social Council should submit an opinion. The Court also
rejected the Social Council's request for an interim order, pending
the final judgment, that the custody of the child be transferred to
the foster parents.
Further particulars concerning the contacts between the
applicants
43. The number of meetings that have taken place between the first
applicant and Lisa since 1978, when Lisa was taken into public care,
until 1983, when the care was terminated, was eight altogether.
43. During the period after the care order terminated and up to
September 1987 the first applicant has met Lisa on 29 (according to
the Government) or 25 (according to the first applicant) different
occasions. The following occasions have been indicated.
44. On 17 February 1983 the first applicant visited Lisa at the
foster parents' home. She also brought her son Jonas with her on this
occasion. A welfare officer from the social authorities attended the
meeting which lasted for about four hours.
45. On 31 March 1983 the Social District Council decided that
meetings should take place every two months at the foster parents'
home and that one of the foster parents as well as a person not
involved in the conflict should be present during the meeting.
46. The next meeting was planned to take place in April 1983 but
at that time the first applicant was ill and the visit was postponed.
On 9 May 1983 the first applicant and Jonas visited Lisa at the foster
parents' home. A welfare officer from the social authorities
attended. The first applicant played with the children without
anybody else being with them and she went to visit a toy shop with
them. The visit lasted four hours.
47. On 28 August 1983 the first applicant visited Lisa at the
foster parents' home together with her son Jonas and her son Tony.
The meeting lasted somewhat more than four hours. A welfare officer
from the social authorities attended the meeting.
48. The next visit took place on 2 November 1983 also at the
foster parents' home. Two welfare officers attended. The visit
lasted about four hours.
49. The next meeting took place on 14 December 1983. The visit was
carried out at the Children's and Juveniles' Psychiatric Clinic in
Halmstad. A social welfare officer from the social authorities and
from the Clinic attended. The visit lasted four hours.
50. On 14 March 1984 a new meeting took place at the Clinic in
Halmstad. The foster parents attended as did a social welfare officer
and Doctor EL who has issued a number of medical certificates in the
case.
51. On 12 May 1984 the foster parents brought Lisa to visit the
first applicant in Köttkulla. The first applicant played alone with
Lisa while the foster parents were talking to Lisa's natural father.
52. On 26 June and in August 1984 the two families met alone
without anyone else being present.
53. On 2 November 1984 the first applicant visited Lisa at the
foster parents' home together with Lisa's father and Jonas. Two
welfare officers were present during the visit which lasted four hours.
54. In December 1984 two meetings were planned to take place.
Both meetings had to be postponed due to illness in the families.
55. In January 1985 the foster parents visited the first applicant
at Köttkulla with Lisa. Two welfare officers attended. Since the
first applicant and the foster mother started to quarrel in Lisa's
presence the meeting was terminated earlier than planned.
56. When Mrs. HS and Mrs. WAG, the team of psychologists to which
the Social District Council had turned in January 1985, had started
their work they made a plan for how and when meetings should take
place in the future. The meetings in 1985 took place mostly under
their supervision.
There is no official record regarding the meetings in 1985 and
1986. There seem to have been meetings in 1985, apart from the
meeting in January 1985, on 26 March 1985 at the first applicant's
home, on 2 August 1985 at the first applicant's home, on 6 October
1985 at the foster parents' home and on 10 November 1985 at the foster
parents' home.
57. Mrs. HS made a report to the Social District Council in
November 1985 where she stated inter alia that the first applicant
had realised more and more that Lisa had reacted emotionally upon her
insecure situation and that the first applicant had concluded that it
was better for Lisa to remain with her foster parents.
58. In 1986 the first applicant seems to have met with Lisa on the
following occasions: on 9 February at the first applicant's home, on
2 March at the foster parents' home, on 23 March at the foster
parents' home, on 8 May at the foster parents' home, on 23 August at
the first applicant's home, on 5 October at the foster parents' home,
on 26 October at the first applicant's home, on 30 November at the
foster parents' home and on 17 December at the foster parents' home.
59. In 1987 the applicants met once in January and then on
15 March, 12 April and 24 May. On the three last-mentioned occasions
Lisa was left alone with the first applicant in her home.
B. Relevant domestic law
a. The 1960 Child Welfare Act
60. Under the 1960 Child Welfare Act (barnavårdslagen) a child
could be taken into care by a decision of a Child Welfare Board
(barnavårdsnämnd) pursuant to Section 25 (a) in conjunction with
Section 29.
Section 25 (a) read as follows:
(Swedish)
"Barnavårdsnämnd har att vidtaga åtgärder enligt 26-29 §§
om någon, som ej fyllt aderton år, misshandlas i hemmet
eller eljest där behandlas på sådant sätt, att hans
kroppsliga eller själsliga hälsa utsättes för fara, eller
om hans utveckling äventyras på grund av föräldrarnas eller
annan fostrares olämplighet som fostrare eller bristande
förmåga att fostra honom."
(English translation)
"The Child Welfare Board shall take measures as provided for
by Sections 26 - 29
if a person, not yet eighteen years of age, is maltreated in
his home or otherwise treated in a manner endangering his
bodily or mental health, or if his development is jeopardised
by the unfitness of his parents or other guardians responsible
for his upbringing, or by their inability to raise the child."
61. Before resorting to care the Child Welfare Board had to try to
remedy the situation by taking preventive peasures (förebyggande
åtgärder). Four such preventive measures were enumerated in the 1960
Act: 1) support (advice, economic support, etc.), 2) admonition or
warning, 3) orders pertaining to the living conditions of the child,
and 4) supervision. Only if such measures did not suffice, could the
Board place the child in care under Section 29 which read as follows:
(Swedish)
"Om förebyggande åtgärder bedömas vara gagnlösa eller om sådana
åtgärder vidtagits utan att medföra rättelse, skall den unge
omhändertagas för samhällsvård."
(English translation)
"The young person shall be taken into care, if preventive
measures are considered to be useless or if such measures
have been tried without success."
b. The Social Services Act and the 1980 Act with Special
Provisions on the Care of Young Persons
62. From 1 January 1982 the basic rules on public responsibility
for young persons are laid down in the Social Services Act
(socialtjänstlagen). 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 Act, and which were still in force on 31 December 1981, were
considered to be decisions taken under the new Act, whether it be the
Social Services Act or the 1980 Act with Special Provisions on the
Care of Young Persons (lagen med särskilda bestämmelser om vård av
unga).
aa. Compulsory care
63. The 1980 Act is concerned only with cases where the parents do
not give their consent to the necessary care.
Section 1 paras. 1 and 2 of the 1980 Act reads:
(Swedish)
"Den som är under 18 år skall beredas vård med stöd
av denna lag, om det kan antas att behövlig vård inte
kan ges den unge med samtycke av den eller dem som har
vårdnaden om honom och, när den unge har fyllt 15 år, av
honom själv.
VÃ¥rd skall beredas den unge om
1. brister i omsorgen om honom eller något annat
förhållande i hemmet medför fara för hans hälsa eller
utveckling eller
2. den unge utsätter sin hälsa eller utveckling för
allvarlig fara genom missbruk av beroendeframkallande
medel, brottslig verksamhet eller något annat därmed
jämförbart beteende."
(English translation)
"Care is to be provided pursuant to this Act for persons
under eighteen years of age if it may be presumed that the
necessary care cannot be given to the young person with the
consent of the person or persons having custody of him and,
in the case of a young person aged fifteen or more, with the
consent of the young person.
Care is to be provided for a young person if
1. lack of care for him or any other condition in the
home entails a danger to his health or development, or
2. the young person is seriously endangering his health
or development by abuse of habit-forming agents, criminal
activity or any other comparable behaviour."
64. In general terms it is the responsibility of each municipality
to promote a positive development for the young. Each municipality
has a Social District Council (socialnämnd) which exercises this
function. These Councils consist of lay members assisted by a staff
of professional social workers.
65. If the Social District Council deems it necessary to take a
child into care, the Council has to apply to the County Administrative
Court for a decision.
66. 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. The Council must present the entire
contents of its investigation (including medical and other reports)
and also a plan for the treatment of the child.
67. 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.
68. Once a decision on public care has been taken, the Social
District Council has to execute the decision, take care of the
practical details of where to place the child, what education and
other treatment to give him, etc. The law requires the care of the
child to be carried out in such a way as to enable him to have close
contact with his relatives and to be able to visit his home. This
requirement may mean that the child may return to his home, after a
period, to live there, although he is still formally under public
care.
69. Section 41 of the Social Services Ordinance (socialtjänst-
förordningen) provides that a care decision must be reconsidered by the
Social District Council regularly, at least once a year, if the original
decision was based on unsatisfactory conditions in the child's home.
The Social District Council must also reconsider a care decision at
the request of the child's parents.
70. The Social District 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 are subject to
appeal to the Administrative Courts.
71. According to Section 5 of the 1980 Act, the Social District
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
72. The Social District Council may issue a prohibition on removal
under Section 28 first paragraph 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."
(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."
73. 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 if the social authorities find that there is a risk to the health
of the child, it is possible to suspend the guardian's right to
determine the child's domicile by applying Section 28 of the Social
Services Act.
74. 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. But even the
preferences of younger children must be considered. The child's
preferences can be of importance in considering the risk of damage to
the child as a result of a removal. In this connection it should be
noted that a prohibition on removal can be issued until the child is
18 years old.
75. When the Standing Social Committee of the Parliament submitted
its opinion on the above provisions it said 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. The provision is applicable in cases where separation
or removal is detrimental to the child. This can be the case 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. It said that the interest of the guardian in
determining the domicile of the child must give way when it conflicts
with what is in the best interests of the child. The Committee also
pointed out that a separation generally involves a risk of damage to
the child. Repeated transfers and transfers which take place after a
long time when the child has managed to develop strong links with the
home where it lives should thus not be accepted without good reasons.
The child's need for secure relations and living conditions must be
decisive in any decision on these questions.
76. The main rule in Section 28 first paragraph of the Social
Services Act is supplemented by a second paragraph which gives the
Social District Council the right to issue a temporary prohibition on
removal until the question is finally decided. A temporary prohibition
may not be in force for more than four weeks.
77. A Social Council cannot enforce a decision on prohibition
on removal against the judgment of an ordinary court or an administrative
court. A council decision is not enforceable if a court decides
otherwise.
78. Section 73 of the Social Services Act provides that appeals
against decisions taken by a Social Council under Section 28 of the
Act can be lodged with the County Administrative Court. Appeals against
the judgments of this court can be lodged with the Administrative
Court of Appeal and further with the Supreme Administrative Court.
79. When a care order is terminated and the Social Council has
issued a prohibition on removal there exists no legal provision under
which the Council can regulate the natural parents' access to the
child except by means of a decision to terminate the prohibition on
removal.
c. The Parental Code
80. Provisions concerning the enforcement of judgments and
decisions concerning the custody of children are laid down in Chapter
21 of the Parental Code (föräldrabalken). 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 6 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.
81. 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."
82. 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.
83. Chapter 21 of the Parental Code contains provisions on the
enforcement of judgments or decisions concerning the custody or access
to a child. Section 7 of that Chapter of the Code 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 himself or herself.
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."
84. In a report (SOU 1986:20) from the Social Commission
(socialberedningen), appointed by the Government, it is proposed that
there be a co-ordination between compulsory care and prohibition on
removal in order to avoid a double procedure. A similar proposal has
been made by a special investigator appointed by the Government in a
report (Ds S 1987:3) submitted in April 1987.
III. SUBMISSIONS OF THE PARTIES
A. The applicants
a. Article 8 of the Convention
85. The applicants submit that the right to respect for family
life and private life must be considered to include also the most
important part, namely the right to live together with your family and
to be able to do so privately, i.e. without interference from others
or imposed presence of others. When a State, by different acts,
decisions and judgments, prevents two members of the same family from
living together this constitutes a serious interference with the right
to family life.
86. The second applicant, Lisa, was placed in a foster home at
Oskarström, 160 kilometres from the first applicant's home at
Köttkulla near Ulricehamn. The applicants observe that during the
whole period (up to June 1987), during which Lisa has lived in the
foster home, there have only been four meetings lasting two hours each
which have not been supervised. The first time was in spring 1986
when the first applicant was permitted to stay two hours with Lisa and
Jonas in the foster home. They were allowed to travel to Halmstad, a
nearby town. In April 1987 the applicants were on two occasions
permitted to be alone two hours in the first applicant's home.
87. The prohibition on removal was introduced in 1983. Up to the
judgment of the Supreme Administrative Court it was the welfare officers
of the Social District Council who decided on the meetings between
the applicants. Thereafter, a team of psychologists took over, the
result being that the foster parents have alone decided when the first
applicant could meet Lisa. The team of psychologists has invited the
first applicant to agree directly with the foster parents on meetings.
However, the foster parents have been impossible to deal with, and
have only allowed a few visits. The first applicant has urged the
welfare officers of the Social District Council to assist her in
arranging meetings but they have refused to do so. Instead they have,
through the team of psychologists, said that it is in the first
applicant's interest to try to persuade the foster parents. It is not
possible under Swedish law to appeal against the refusal of the foster
parents to permit meetings with Lisa.
88. It follows that the first applicant has been permitted to meet
Lisa without supervision for a total of eight hours over a period of
more than nine years. On all other occasions the contact between
the applicants has taken place under supervision of the foster parents
and often in the presence of some social workers. The contacts have
been few and they have been limited normally to two or three hours.
Not once has Lisa been permitted to stay overnight with the first
applicant and not even one night has the first applicant been
permitted to stay overnight in the foster home.
89. There has been no reason for supervising the meetings. The
supervision has been arranged by the foster parents for the purpose of
preventing Lisa from becoming more attached to her mother, and thereby
risking losing her and the high remuneration they receive, a remuneration
which enables them to live in a luxury house.
90. During the last five or six years the foster mother has, in
addition, travelled with Lisa and her own child for three months every
summer to Gotland, a holiday island in Sweden. The foster mother has
then refused to disclose the address and the telephone number. The
result of this substantial restriction of the right of contact between
the applicants has been that they have been deprived of what must be
considered to be part of normal family and private life, namely the
right to live together. Consequently, the prohibition on removal and
the restrictions on the right of access have involved serious
interferences with both applicants' right to family life and private
life.
91. The fact that the Swedish authorities do not consider the
right to be together as a self-evident right is shown by the
submissions of the Government. The applicants refer in particular to
the statement made by the County Administrative Board to the County
Administrative Court of Stockholm on 21 March 1983, that "the mother
appears to be an unreasonable woman who at any price wishes to
gather around herself the children which she has borne without having
regard to the children's emotions or feelings". The fact that the
Government invoke this statement in this case can only be understood
as meaning that the Swedish State does not consider it to be a natural
thing, protected by Article 8 of the Convention, that a mother wishes
to gather around her the children which she has borne. The wish of
the first applicant, living in fully acceptable conditions, to gather
around her the children she has borne is thus questioned by the
Government.
92. As regards the question whether the interference with the
applicants' right under Article 8 para. 1 of the Convention is
justified under para. 2 of that Article, the applicants submit the
following:
93. The possibility of issuing and maintaining a prohibition on
removal is provided for in Section 28 of the Social Services Act. This
provision gives the Social District Council the possibility of
prohibiting the removal of a child from a foster home either for a
limited time or until further notice, that is to say for an indefinite
time. The fact that this possibility exists under Swedish law, i.e.
to prohibit for an indefinite time the natural parent from taking her
child away from her foster home although there is no criticism against
the home of the natural parents, violates Article 8 of the Convention.
The existence of this provision implies that the Swedish State has
abolished the parents' right to their children, as well as the
children's right to their parents, and replaced these rights by a
right for the child to be taken care of by alien people designated by
the social authorities.
94. Section 28 of the Social Services Act sets out as a condition
for a prohibition on removal that there is a risk which is not of a
minor nature that the child's physical and mental health would be
jeopardised if he or she were separated from the foster home.
Acordingly, it must be established under Swedish law that there is a
risk to the child's physical or mental health. The applicants submit
that in their case it has not been substantiated that there exists any
real risk which is not of a minor nature to Lisa's physical and mental
health. The Swedish courts have simply accepted unsubstantiated
allegations to this effect. The applicants find it remarkable that
the courts have not appointed any impartial expert to examine these
medical questions. They also find it remarkable that the child
psychiatrist, Dr. EL, whose opinion has been the most important one
in the case, has not even talked to Lisa alone. She has only examined
Lisa in the presence of the foster parents.
95. The applicants also note that before the County Administrative
Court Dr. EL expressed the general opinion that children who had
once been placed in a foster home should never be returned to their
natural parents provided the foster home was a good one.
96. The applicants note, moreover, that no psychiatric diagnosis
has been made in respect of Lisa. The foster parents have alleged
that she is a sensitive child. The first applicant has contacted
Lisa's teacher in order to ascertain her abilities at school and she
also asked whether Lisa has shown any sign of a psychological
disturbance or other anxiety or insecurity at school. The teacher was
incredibly surprised to hear what had been alleged, namely that Lisa
had some sort of psychological disturbance. The teacher had never
noticed any sensitivity. She rather characterised Lisa as a normal
child who showed no signs of psychological disturbances. On the basis
of the above, the applicants find it incorrect that the Swedish courts
accepted the allegation of the social authorities that there exists a
danger which is not of a minor nature to Lisa's mental and physical
health if she is moved. Consequently, they submit that the
prohibition on removal has not been issued in accordance with Swedish
law.
97. As no medical expert has been heard in the case, the
applicants have the impression that the courts have in fact made a
judgment on the basis of what is most suitable and the happiest
solution for Lisa, i.e. whether it would be better for her to stay in
the foster home or whether it would be better for her to move to her
natural parents. However, such an approach is not in conformity with
Section 28 of the Social Services Act. Accordingly the courts have
not made their judgment according to Swedish law.
98. When the courts make their assessment on the basis of which
family could be considered to be the best family for the child, the
courts embark upon a dangerous road which violates parents' and
children's rights under Article 8 of the Convention.
99. In addition, all the courts, including the Supreme
Administrative Court, have expressed the opinion that, while the
prohibition on removal is in force, the social authorities should see
to it that the appropriate preparatory measures are taken with a view
to re-uniting the applicants. However, the social authorities have
not complied with this order of the Supreme Administrative Court.
Instead, they have used the time to further strenghten the bonds
between Lisa and her foster parents and they have even blackmailed the
first applicant in order to persuade her not to request that her child
be returned to her.
100. Since the Social District Council of Lidingö has failed to
comply with the judgment of the Supreme Administrative Court, it
follows that the prohibition on removal has not been applied in
accordance with Swedish law. The exercise of public power can only be
considered to be in accordance with Swedish law if it complies with
the judgments of Swedish courts which have acquired legal force. This
has not been the case here.
101. As regards the question of whether the issue and maintenance
of the prohibition on removal was necessary in a democratic society
for the protection of health and morals, the applicants admit that
there may be situations where a child has been staying in a foster
home for many years and has not met its natural parents during these
years. In order to avoid mental damage to a sensitive and sick child
by a sudden removal, it may then be necessary to issue a prohibition
on removal which is limited to one or two months. In such a
situation these months must be used so as to give the child an
opportunity of meeting its natural parents often in order to get to
know them. The applicants submit that Section 28 of the Social
Services Act contains a limitation implying that a prohibition on
removal can only be issued for a very limited time. However, as the
prohibition on removal has been used in the present case, it cannot
be considered to be necessary in a democratic society. On the
contrary, the social authorities and the foster parents have used the
prohibition on removal for the purpose of convincing Lisa that she
should stay in the foster home. No measures whatsoever have been
taken by the social authorities or the foster parents for the purpose
of increasing the contact between the applicants.
102. In the applicants' view it appears from the submissions and
the accompanying documents submitted by the Government, in particular
from several child psychiatric certificates, that Lisa is physically
and psychologically a healthy girl who has developed normally for her
age and who has developed normally through her growing-up period.
Nowhere in the certificates is there any indication of psychological
disturbances or of psychological disease of any kind.
103. It is a fact that the Swedish authorities have first
protracted the removal of Lisa to her home for a couple of years.
Then they declare that in view of the fact that she has spent such a
long time in the foster home it may be to her detriment to move her.
It is to be observed in that context that it is the Swedish
authorities and the foster parents, paid by the Swedish authorities,
who have made it difficult to establish a regular contact between the
applicants. The information which has been submitted concerning the
worry of Lisa, after having met the first applicant, is information
coming from the foster parents. The first applicant herself says that
Lisa clearly shows a favourable attitude towards the first applicant.
The worry which Lisa may have shown afterwards can also be due to
disappointment over the fact that she could not stay with her natural
mother.
b. Article 2 of Protocol No. 1 to the Convention
104. The first applicant is an active member of a religious
congregation called Philadelphia. The foster parents belong to the
Swedish church. There is a link between the Swedish church and the
State in the sense that a Swede who does not resign from the Swedish
church is automatically a member of that church. Individuals who are
religiously indifferent or against the Swedish church do not care to
declare their resignation from the church. The applicants submit that
the foster parents seem to despise christianity, an attitude which is
allegedly shown inter alia by the fact that the religious picture
which the first applicant has given to Lisa has been torn down from
her room.
105. The practice in Sweden when placing children in foster homes
is that the social authorities do not even ask about the religious
belief of the natural or foster parents. This indicates that the
Government do not intend to comply with their obligations under
Article 2 of Protocol No. 1. The first applicant has for a long time
told both the foster parents and the social authorities that her wish
is that Lisa be brought up in the same christian belief as she has.
It is wrong to say that this is something new. The first applicant
has made this point long ago.
106. The Government submit that Lisa receives religious education
in the foster home. However, the foster parents are members of the
Swedish church. The belief and religious convictions of the Swedish
church are not at all identical to those of the Philadelphia
congregation and the first applicant's convictions. It therefore
follows that there has been a violation of the Convention since Lisa
has not been brought up in the religious belief to which the first
applicant adheres. Nor does the first applicant have any possibility
of having this effectively examined by any Swedish authority.
c. Article 6 of the Convention
aa. The proceedings concerning the prohibition on removal
107. The first applicant complains that in the proceedings
concerning the prohibition on removal she has not had a fair
hearing and that, accordingly, Article 6 of the Convention has been
violated.
108. She submits that the foster parents and the social authorities
can control Lisa and influence her attitudes. The observations
allegedly made by the foster parents and the social authorities as
regards Lisa's attitudes, for instance with respect to her willingness
to move to her natural parents, seem to be accepted by the courts. As
a result of this control, Lisa is prejudiced by the authorities and
the foster parents. Furthermore, by being prevented from seeing Lisa
alone the first applicant is prevented from ascertaining Lisa's
attitude towards her natural parents and the first applicant is
therefore prevented from submitting such information to the courts.
109. The first applicant also complains about the length of these
court proceedings, lasting for a total of seven years. She considers
this to be unreasonable.
bb. The request concerning access to the child
110. The first applicant complains that she has not had the right
to a court examination of her claim for more access to her child
during the time when the prohibition on removal has been in force.
111. The Social District Council's decision of 16 August 1985
concerning access to Lisa constituted a "determination" within
the meaning of Article 6 of the Convention. The right of access and
contact between the parents and their children belongs to "civil
rights". There is no possibility of appealing against this decision
under Swedish law.
112. The fact that the Social District Council refused to decide
is precisely a "decision". One of the aims of Article 13 of the
Convention (referred to below), which expressly provides
"notwithstanding that the violation has been committed by persons
acting in an official capacity", must reasonably be to prevent a State
from having a system by which important decisions for the individual
are called "practical measures" instead of "decisions" in order to
impair the right of appealing against violations of human rights.
113. As regards the question whether the issue of access between
the applicants could have been included in a request for termination
of the prohibition on removal, the applicants submit that the Swedish
authorities and the courts have put the applicants in the following
impossible situation. The reason for issuing the prohibition on
removal until further notice is that, before that prohibition can be
lifted, the applicants must have had more contact with one another.
When the first applicant asks the social authorities to be allowed to
meet her child more often and alone she is refused to do so. When she
then asks for a formal decision on access to the child the Social
District Council decides not to decide on the question of access. In
such a situation both applicants' civil right to contact has been
violated and there has been a breach of Article 8 without any
possibility, as required by Articles 6 and 13 of the Convention, of
bringing this before a Swedish court. In this deadlock it will not be
possible to terminate the prohibition on removal since contact is
refused through decisions which cannot be challenged.
cc. The withdrawal of the appeal
114. The first applicant complains that she has been denied access
to court in respect of the Social District Council's decision of
18 January 1985 to refuse to terminate the prohibition on removal.
115. The first applicant appealed to the County Administrative
Court against the said decision. While the case was pending before
the Court, the social authorities informed her through the private
team of psychologists that as long as the first applicant continued to
bring proceedings in the matter she would not be able to meet her
daughter alone. However, if she withdrew her action she would be
allowed to meet her daughter alone during some weekends. The first
applicant knew that one condition for being reunited with her child
was that they got to know each other and that in order to get to know
one another it was necessary to meet alone. Consequently, she was
exposed to blackmail, and was therefore forced to withdraw her appeal
before the County Administrative Court. She has in practice been
denied access to court. The applicants refute the Government's
allegation that there is a difference of opinion between the first
applicant and her representative. In respect of the fact that the
applicant withdrew her action before the County Administrative Court,
the social authorities have done nothing to keep their promise. Only
occasionally has the applicant been permitted to meet her daughter
alone.
It is added that the employees of the Social District Council
of Lidingö have confirmed that they set up the same conditions as the
team of psychologists.
116. The applicants submit that the above is a form of blackmail
which prevents the first applicant from bringing proceedings
concerning her child before Swedish courts. It is alleged that this
is a breach of Article 6 of the Convention.
d. Article 13 of the Convention
117. The applicants submit that the Parliamentary Ombudsman and the
County Administrative Board are not instances of appeal. They cannot
amend a decision of the Social District Council. It is rare that the
Ombudsman reports an official for prosecution, and even if he does
it does not mean that the individual, whose human rights have been
infringed, will have the decision on the substance amended. The fact
that supervisory authorities exist does not mean that there is an
effective remedy.
118. Moreover, as indicated above, the right to request that the
prohibition on removal be discontinued does not involve any
possibility to appeal in respect of the right of access.
119. Finally, the first applicant cannot have the alleged
violation of Article 2 of Protocol No. 1 effectively examined by any
Swedish authority.
Accordingly, there has been a violation of Article 13 of the
Convention.
B. The Government
a. The facts
120. The Government point out that when the Social District Council
decided on 21 January 1983 to order a prohibition on removal it stated
that the long-term goal was that the child should eventually be moved
back home to her natural parents. This decision was based on five
medical certificates which dealt with the reactions of the child during
attempts in 1982 to accustom her to her natural parents. The
Government refer to the contents of these certificates. The Government
also refer to two further certificates by the same persons, dated 24
February and 7 September 1983 respectively.
In addition the Government refer to the contents of a letter
of 21 March 1983 from the County Administrative Board of Stockholm
to the County Administrative Court, and the letter of 13 February 1984
from the National Board of Health and Welfare to the Administrative
Court of Appeal.
121. In the spring of 1987 the situation was as follows: Lisa was
nine years old and still living with her foster parents. She saw her
mother regularly once a month and was left alone with her during the
visits. It was not yet possible to make an arrangement which would
permit Lisa to stay overnight with her mother. All efforts made
in order to create a relationship between Lisa and her mother trustful
enough to make such an arrangement possible have been unsuccessful.
The conflict between Lisa's mother and the foster parents is
still very serious. The Social District Council of Lidingö has, with
the assistance of a team of psychologists, tried to see to it that
a better relationship between Lisa's mother and her foster parents is
created. Lisa is aware that the first applicant is her mother and she
is now torn between her loyalty to her foster parents and to her
mother. The efforts which have been made by the social authorities to
solve the situation have aimed at finding the best solution for Lisa.
122. According to the social authorities, the first applicant
earlier accepted that it was in Lisa's best interests to remain with
her foster parents but to see her mother on a more regular basis.
This was clearly declared by her at a meeting with the foster parents
on 12 September 1985. Since Lisa had shown anxiety when meeting her
mother, the first applicant was aware that it was necessary to move
slowly so that Lisa got to know her mother better. The aim should be
to create such a relation between Lisa and her mother that Lisa could
stay overnight with her mother over a weekend and perhaps spend a few
days with her during a holiday. It has been important to the first
applicant that Lisa got over her sense of fear of her mother.
Lisa's father has moved out and the first applicant is now
living alone with her second child, her son Jonas.
123. In the opinion of the Social District Council of Lidingö the
basis for the measures taken by the social authorities regarding the
possibilities of a reunification between Lisa and her mother should be
that a trustful relation between Lisa and her mother must be created.
If such a relationship cannot be obtained a reunification cannot be
effected without harming Lisa's mental health. Such a relationship
could be created only by letting Lisa meet her mother more and more
often if Lisa's mental reactions do not prevent such meetings. The
Government agree on these principles as guidelines when dealing with
the matter.
The situation is very complex due to the existing conflict
between Lisa's mother and Lisa's foster parents.
In order to reach a solution officials of the Social District
Council have talked to Lisa's mother and the foster parents regularly
in order to reconcile them. The social authorities have also turned
to the Children's and Juveniles' Psychiatric Clinic in Halmstad in
order to get some advice on how meetings between Lisa and her mother
should be arranged in order not to harm Lisa's mental health. This
was done since Lisa had shown strong emotional reactions after having
met her mother.
124. In February 1983 the Clinic gave an opinion to the Social
District Council stating that the meetings between Lisa and her mother
should be arranged with regard to what Lisa was capable of accepting.
It was said that if the contact between Lisa and her mother was too
intensified there was a risk that Lisa might react so strongly that the
possibility of arranging meetings between Lisa and her mother could be
spoiled for a long time. The Social District Council has relied upon
this opinion.
125. After the judgment of the Supreme Administrative Court on
11 October 1984 the Council in January 1985 turned to a team of
psychologists, Mrs. HS and Mrs. WAG, who were given the task of seeing
to it that Lisa could meet her mother on a more regular basis. Mrs.
HS has had a therapheutic contact with Lisa's mother the result of
which is described in her report to the Social District Council of 9
August 1987. It appears from the report that this work is now
terminated, as it seems, due to the first applicant's lack of
confidence in Mrs. HS. Mrs. WAG has had contact with the foster
parents for the same purpose. Her task was taken over by another
psychologist, Mr. BS, in September 1986. Mr. BS has made the
assessment that it does not seem possible to create such a contact
between Lisa and her mother that meetings on a more regular basis
between them can take place within a foreseeable period of time.
According to his opinion such meetings must be based upon the free
will of the parties involved and on a mutual wish that such meetings
should take place.
126. As regards the meetings between the applicants in 1987 the
Government observe that in January the first applicant wanted to meet
Lisa in Ulricehamn in order to go to a photographer and have pictures
taken of Lisa and her brother Jonas. When Lisa heard of this she did
not want to go but her foster father brought her to the first
applicant. The first applicant and the foster father disagreed and
according to the information submitted by the Social District Council
the first applicant said to Lisa that she should see to it that Lisa
should move over to the first applicant.
The Social District Council then again tried to persuade the
first applicant and the foster parents to reach an agreement regarding
meetings between the first applicant and Lisa but without success.
The foster father, however, suggested that they could try to leave
Lisa alone with her mother at the first applicant's home. This was
done on 15 March, 12 April and 24 May.
Regarding the first visit the first applicant has said that
Lisa cried when her foster father left her, but when he had left she
stopped crying, started to play and seemed happy and fit. According
to the foster father he had left Lisa crying and she was very silent
when he picked her up two hours later. When they arrived home Lisa
became very aggressive and protested loudly against seeing her mother
again saying to the foster parents that they were only forcing her all
the time. She refused to obey them at all. After a few hours when
she had relieved her feelings she calmed herself.
The second visit has been described as terrible by the first
applicant. Lisa did not want to enter the house but remained outside
crying. She cried for an hour. When they talked to each other Lisa
said that she did not like the first applicant nor Jonas. When the
first applicant asked her if she did not realise that they became very
sad when she said such things she answered that her foster parents had
told her to say this. According to the foster father as well Lisa did
not want to enter the house. He left her crying outside. When he
picked her up two hours later she was sitting waiting for him already
dressed. On their way home she told him that the first applicant had
pulled her arm when she did not want to enter the house and that the
first applicant had told her that if she did not want to come and
visit her she had to move to the first applicant. Lisa was very
unhappy and said that if she had to she would rather visit the first
applicant than move to her place.
According to the first applicant the third visit turned out
without problems. Lisa's foster father has said that Lisa was unhappy
after the visit but not to the same extent as on the previous occasion.
127. The assessments lying behind the measures taken by the social
authorities appear from the certificate issued by the Children's and
Juveniles' Psychiatric Clinic signed by Dr. EL and Mrs. AC on 21 May
1987.
128. The social authorities have done what in their opinion has
been possible in order to create a better contact between Lisa and her
mother. The Social District Council has acted in view of what is in
Lisa's best interests and relied upon information submitted by
psychiatric and psychological experts. Since Lisa has feared that her
mother would separate her from her foster parents, whom she
emotionally since long looks upon as her own parents, it has not been
deemed possible to leave her alone with the first applicant. When
this was done she reacted aggressively with anger and despair.
129. According to the social authorities the first applicant's own
behaviour has prevented the enforcement of a reunification and a better
contact between Lisa and herself from being reached. By acting in an
unforeseeable way she has undermined the kind of co-operation between
the foster family and the child's natural parents which is necessary in
order to solve a situation like the present one. In the autumn 1985
she twice promised Lisa that she could remain with her foster parents
but she has later at least twice in anger told her that she had to
move over to the first applicant. This has made Lisa afraid and
worried that she would be kidnapped and separated from her foster
parents.
b. Article 8 of the Convention
130. The applicants' complaints under Article 8 refer both to the
legislation as such and to the particulars of the specific case.
131. As to the legislation, the Government recall that the right to
respect for private life and family life as set forth in Article 8 is
not absolute. Certain restrictions may be permitted according to
paragraph 2 of the same Article provided that they are in accordance
with the law and necessary in a democratic society. One of the
criteria which may allow such a restriction is the protection of
health or morals.
132. The Government consider that the Commission should not deal
with general complaints of a certain legislation but limit itself to
examining the aspects of the specific case. However, if the legislation
is to be examined it is the Government's opinion that Section 28 of
the Social Services Act as such fulfils the requirements of Article 8
of the Convention. There are cases where a prohibition on removal
until further notice could be justified.
Individual cases vary considerably and it is difficult to
formulate anything but general principles in the legislation. An
attempt has been made, however, to expand on the principles in the
travaux préparatoires in order to provide guidelines for everyone
concerned in these matters. The criteria for prohibitions on removal
of children fall within the scope of the criteria mentioned in Article
8 para. 2 of the Convention, namely protection of health and morals of
the child in question.
For the above reasons, the Government consider that the
existing legislation is in accordance with the principles of the
Convention.
133. As regards the question whether the restrictions on access
after the care order was lifted could be regarded as being in
accordance with law the Government observe that as long as a care
order is in force special rules in the Act with Special Provisions on
the Care of Young Persons apply concerning access to a child but no
corresponding rules apply when the care order is lifted.
Nevertheless, it is uncertain what decision an Administrative
Court would have rendered, had the first applicant appealed against the
decision of 16 August 1985.
134. The legislator has looked upon this issue as a practical one.
Sometimes the responsible authorities have felt themselves vested with
the power of making formal decisions on access, such as in the
decision of 21 January 1983. However, such decisions do not differ
from decisions of a more practical kind which must be taken, not only
by the Social Council itself but by the responsible welfare officers.
There are lots of telephone calls to be made and other arrangements,
for instance tickets to order. The decision which can be subjected
to an appeal is the decision to issue a prohibition on removal,
whereas accessory decisions cannot be appealed separately.
The legislator has not seen the child as an object of a right
which can be claimed as can be the right to a possession. The
legislator instead has tried to see the problems from the child's
point of view and supply solutions hereto. For that reason Swedish
law does not refer so much to a parent's right of access to its child
as to the child's right of access to its parents. This is a way of
looking at these matters that seems to be accepted also in other parts
of Europe. To illustrate this view it is mentioned that, in a report
submitted by the Committee on the Rights of Children (Utredningen om
barnens rätt) appointed by the Government in 1977, it is suggested
that children should be given a separate locus standi (talerätt) in
custodial and access proceedings, i.e. that they should in principle
have equal status with their parents as parties to such proceedings.
135. There are no special rules regarding the right of access when
a care order is terminated and an order on prohibition on removal is
issued. As far as the Government have been able to establish the
Swedish legislation has not dealt in detail with a situation in which
a prohibition on removal could be in force for several years even if
an order on prohibition on removal can be issued until further notice
according to the law.
136. The purpose of a prohibition on removal is to facilitate
a smooth transfer when a child should move back to its parents. If
this goal is impossible to achieve in view of the child's interest,
there are special provisions in the Parental Code that can be
applied. According to Chapter 6 Section 8 of this Code the civil
custody of a child can be transferred to the foster parents if it is
evident that it is in the child's interest that the existing
conditions remain unchanged. If such a decision is made the provision
concerning access to children in the Code will apply in the same way
as this provision applies regarding access to the child for the parent
who has been deprived of custody in a divorce case. This means that
the question of when and how often a child should meet a parent will
be decided by an ordinary court. If this solution had been chosen by
the social authorities and the ordinary courts the legal problem now
under examination by the Commission would not have arisen.
137. A situation like the present one, however, has not been dealt
with specifically by the legislator. The Government wish to make the
following remarks hereto.
138. The fact that a child is staying in a foster home and is not
to be moved from there implies in itself that the guardian's access
to the child is affected. Also other issues, normally decided by the
guardian, are affected, for example the child's upbringing or what
school the child should attend. The question of when and how often
the child and its parents shall meet is one of the most important of
these different problems. Practical matters of this kind are usually
dealt with in co-operation between the foster parents and the guardian.
Disputes that arise in this regard cannot be solved by a court
decision and are for practical reasons usually decided by the social
authorities, which for instance decide when meetings shall take place
and how.
Such decisions are often a result of negotiations between the
foster parents, the guardians and welfare officers. They probably do
not have a legal effect (rättsverkan) as has a court decision or other
decisions based on a law which explicitly empower the authority
concerned to make decisions of that kind.
The Government underline that the legal effect is an issue
which has not yet been examined by Swedish courts. Nor can any
decisive conclusion be drawn from the travaux préparatoires relating
to the legislation. Under all circumstances the Government maintain
that decisions on practical arrangements as to meetings between the
child and its parents, and where and when they ought to take place,
can never be regarded as violating the law as long as the prohibition
on removal is in force.
139. It is further emphasised that the present situation in Lisa's
case can easily be examined and altered by a court in three ways:
- by a new application that the prohibition on removal be
revoked;
- by an application to the County Administrative Court
pursuant to Chapter 21 Section 7 of the Parental Code
that the child immediately be transferred to its mother;
- by a judgment made by an ordinary court at the request of
the Social District Council that the custody of the child
be transferred to the foster parents pursuant to Chapter 6
Section 8 of the Parental Code.
140. The Government accept that the order prohibiting the first
applicant from moving Lisa from the foster home constitutes an
interference with the applicants' rights to respect for family life
as protected by Article 8, but consider that the measures taken by the
social authorities after that order was issued do not constitute a
separate interference.
141. In the Government's view the prohibition on removal of the
child was made in accordance with Swedish law, namely Section 28 of
the Social Services Act.
142. The applicants have alleged that the mere existence of such a
provision constitutes a violation of Article 8. This allegation is
rejected by the Government. It is obvious that there must be cases
when a child, who has lived in a foster family for several years,
cannot be reunited with its parents, whom he or she may have seen only
occasionally, directly after a care order has been lifted. In such a
situation some time must be provided during which the child is given a
chance to get to know its parents properly before they are reunited.
Otherwise there is a serious risk for the mental health of the child.
The provision in question aims at securing this right of the
child. If the parents want to move the child earlier than the child
can manage this provision can be applied. The provision thus aims at
protecting the child's interest in this regard and that interest
must prevail over the guardian's right to have the child returned
when he or she wishes. The cautiousness that the authorities must
observe when considering when and how a child shall be returned to its
parents is also stressed by the Commission in its Report in the Olsson
case (Comm. Report, 2.12.86, para. 165). The fact that these
considerations in the present case were made after the lifting of the
care order and under the special provisions on prohibition on removal
does not affect the applicability of the Commission's reasoning in the
present context.
143. A prohibition on removal can be limited in time or be in force
until further notice. The Supreme Administrative Court has in its
judgment explained the conditions for setting a time-limit. Applied as
indicated by the Supreme Administrative Court and in view of the
purpose of the provision, it is evident that the mere existence of
the provision does not constitute a violation of Article 8. The
condition "in accordance with the law" is clearly satisfied in the
Government's view.
144. In the Government's view it is also evident that the
interference was made in the interest of the child which is clearly a
legitimate aim under Article 8 para. 2 falling under the expressions
"for the protection of health or morals" and "for the protection of
the rights and freedoms of others".
145. Concerning the question of necessity of the interference the
Government again recall the Commission's report in the Olsson case, where
the Commission held that the word "necessary" requires that the
interference corresponds to a "pressing social need". It follows
that the issue to be examined in this case is thus whether the
decision taken by the Supreme Administrative Court to revoke the
time-limit set by the lower courts corresponded to a "pressing
social need".
The Commission further stated in the Olsson case that its task
should be to review under Article 8 the decisions taken analysing the
criteria applied and the reasons and evidence on which the decisions
were based. It should not take the place of the competent domestic
courts and make a new examination of all the facts and evidence
brought before the Commission in the same way as may be done by a
domestic court.
It follows that the present case should be examined with a
view to establishing whether it was necessary within the meaning of
the Convention not to return Lisa to her mother when the care order
was lifted and to issue the prohibition on removal.
146. The Government find, however, that there must be an area
within which no violation can be found even if the decisions taken
can be doubtful or even considered wrong provided that the competent
authorities have had just reason for arriving at their conclusions.
If this area of appreciation is not properly defined the
procedure before the Commission will constitute an extra level of
jurisdiction resembling that of an extra level of jurisdiction within
the State concerned. The Commission's examination of the present case
should thus essentially be limited to establishing whether the
decisions taken have been based on irrelevant circumstances,
unacceptable criteria and standards or on other reasons which cannot
be considered fair.
Another approach could lead to consequences that were not
foreseen by the authors of the Convention. The examination whether
the interference corresponds to "a pressing social need", as the word
"necessary" was interpreted by the Commission in the Olsson case,
can of course result in different opinions. But this condition should
not be applied in such a way that a serious concern with the aim of
protecting a child's mental health from being endangered could be
considered a violation of the Convention. Such an interpretation does
not conform with the spirit of the Convention.
147. Concerning the prohibition on removal the fact that a certain
period during which a closer contact between Lisa and her mother could
be established was needed before sending Lisa back seems to be
undisputed before the courts. The decisions in these courts were
arrived at after hearing witnesses and examining medical certificates
in which it clearly appeared that Lisa's mental health would be
endangered if she were moved from the foster home.
It is clear from the reasons given by these courts that
the order of prohibition on removal was issued in the interest of the
child to establish a better relationship between the child and her
parents before a reunification could take place. There are thus
no reasons for claiming that the prohibition on removal was not
necessary within the meaning of the Convention.
148. As to the Supreme Administrative Court, it is evident that it
made its decision in the interest of the child. The Court found that
it was not possible to set a time-limit for a reunification since
the necessary preparations for a reunification were not made.
The Supreme Administrative Court, however, clearly stated:
"Irrespective of the duration of the prohibition, the Social
District Council is obliged to see to it that appropriate
actions aiming at a reunification are taken without delay.
Such actions are required in particular when the Council, in
accordance with what has been said, has found reasons to order
a prohibition until further notice. Otherwise there is a risk
that, in the meantime, the child will become more closely
linked to the family it is about to leave."
In the Government's view this judgment has also been based on
fair and relevant reasons. The interference that it implies must be
considered necessary within the meaning of the Convention.
149. The question to be put might not so much relate to the
decisions of the Social District Council and the Courts as to why
it was not possible to create a closer contact between Lisa and her
mother so as to make a reunification possible. The answer to the
question is to be found in the relations between the persons involved.
The guideline for the Social District Councils when dealing
with the possibilities of reuniting Lisa with her mother has been to
first create a trustful relationship between them. Such a relationship
could be created only by Lisa meeting her mother more and more often
if Lisa's mental reactions did not prevent such meetings. Due to the
existing conflict between Lisa's mother and the foster parents the
situation has become very complex.
One should be careful not to blame one of the parties in
a conflict, but in the view of the social authorities the first
applicant's own behaviour was the main reason that prevented a
trustful contact from being established. She often lost her
self-control and would shout and scream at the foster parents when
talking to them over the phone. She threatened to come and fetch her
child. At this time Lisa was frightened of her mother and she was
anxious when she met her, although at this time she was never left
alone with her.
In order to reach a solution to this conflict, officials of
the social authorities have talked to Lisa's mother and the foster
parents regularly in order to reconcile them. The social authorities
have also turned to the Children's and Juveniles' Psychiatric Clinic
in Halmstad in order to get some advice on how meetings between mother
and daughter should be arranged in order not to harm Lisa's mental
health.
In February 1983 the Clinic gave an opinion to the Social
District Council stating that if the contact between Lisa and her
mother was too intensified there was a risk that Lisa's reactions
could become so strong that further meetings between them could be
totally spoiled for a long time.
In January 1985 the Social District Council turned to a team
of psychologists who were given the task of deciding whether or not
Lisa could meet her mother on a more regular basis. However, it
has still not been possible to create a firm, trustful relationship
between the foster parents and Lisa's mother in order to facilitate
Lisa's meetings with her mother.
In May 1987 two psychologists at the Children's and Juveniles'
Psychiatric Clinic issued a new certificate in which they stated that
Lisa, if forced to move to her mother, would turn into a state of
psychological regression and that there was a great risk that such a
regression would develop so as to make her lose contact with reality,
that is to say, enter into a state of psychosis. She would turn into
herself and not be able to have normal contact with society. She would
feel that her foster parents had deserted her. They conclude that in
their opinion Lisa must remain with her foster parents for all time.
The Government further recall that the National Board of Health
and Welfare when requested to deliver its opinion before the
Administrative Court of Appeal did not question the conclusions drawn
by the pychiatrist who had advised against Lisa's return to her
parents as well as too frequent meetings between Lisa and her mother.
On the contrary it strongly supported them and even pointed out the
measures that could be taken regarding the legal custody, that is to
ask the court to transfer the legal custody from the parents to the
foster parents.
150. It appears from the above that the social authorities have
done what in their opinion has been possible in order to create a
better contact between Lisa and her mother. The authorities have
acted in view of what is in Lisa's best interests and relied upon
information submitted by psychiatric and psychological experts. Since
Lisa has feared that her mother would separate her from her foster
parents, whom she has for a long time emotionally regarded as her own
parents, it has not been deemed possible to leave her alone with her
mother. When this was done she acted with anger and despair.
151. In the Government's view all measures taken by the authorities
have been necessary within the meaning of the Convention in the child's
interest. The criteria and standards that have been applied have been
reasonable and the reasons for the decisions were fair. The
interference that has taken place is thus justified under Article 8
para. 2 of the Convention. This is so, regardless of whether the
interference should be considered to relate only to the decisions
of the Social District Council and the courts or to these decisions
together with the restrictions of the contacts between the first
applicant and Lisa. Consequently, the Government submit that there
is no violation of Article 8 of the Convention.
c. Article 2 of Protocol No. 1 to the Convention
152. The applicants allege that Article 2 of Protocol No. 1 has
been violated in that their Christian conviction has been neglected in
the child's upbringing when placing the child with foster parents who
are hostile to religion.
153. The Government observe that no special request has been made
by the first applicant concerning the religious education of her
daughter. Despite this fact steps have been taken by the foster
parents to ensure a proper religious upbringing of the child. Both
foster parents are members of the Church of Sweden. The child
attended a children's playgroup organised by the church for one year
before she started primary school. Various religious books for
children have been read in the foster home and the child has been
taught to say evening prayers. There is nothing to substantiate the
allegations made by the applicants in this respect.
154. The Government further note that there are no references to
the matter of religion in the judgments of the courts. An obvious
conclusion is that this issue has never been raised before the courts.
In fact, it seems that the aspect of religion has been introduced
before the Commission by the present counsel for the applicants. Since
the Swedish authorities have not been in a position to express themselves
on this matter the Government question whether the Commission could
deal with this aspect of the case.
155. Finally, it does not seem reasonable to interpret Article 2 of
Protocol No. 1 so as to grant to every parent of a child taken into
care a right without restrictions to ensure to the child an education in
conformity with his or her religious convictions.
Consequently there is no violation of Article 2 of Protocol No. 1.
d. Article 6 of the Convention
aa. The proceedings concerning the prohibition on removal
156. Article 6 concerns the determination of an individual's civil
rights and obligations or a criminal charge against him. The
Government fail to see that either of these two conditions are
fulfilled in this case. Since there is no question of a criminal
charge, Article 6 can only be applicable if the subject matter
concerns the applicants' "civil rights and obligations".
However, the decisions by the Social District Council and the
three courts that are contested in the present case do not concern
civil rights and obligations. In fact, the Convention does not
contain any provisions on how the High Contracting Parties should deal
procedurally with matters concerning the care of minors, except those
laid down in Article 5. But those provisions are not applicable in
the present case.
157. It follows that the only provision which could be invoked in
this context is Article 13, according to which everyone whose rights
and freedoms as set forth in the Convention are violated shall have
an effective remedy before a national authority. The proceedings
before the courts show that the applicants have had such a remedy.
158. In case the Commission considers that Article 6 of the
Convention was applicable the Government observe that the question of
the prohibition on removal has been examined at three domestic court
levels, namely by the County Administrative Court, the Administrative
Court of Appeal and the Supreme Administrative Court. The Government
find no indication in the applicants' submissions that the proceedings
before these courts did not comply with the requirements of Article 6
of the Convention.
The Government therefore maintain that there is no violation
of Article 6 in this regard.
bb. The request concerning access to the child
159. The Government consider that decisions relating to the care
of minors do not concern "civil rights and obligations" and that
Article 6 is not applicable in this context. They submit that Article
6 was not applicable in relation to the issue of the access to the
child.
The Government add the following in case the Commission should
not agree with this opinion.
160. The position taken by the Social District Council on 16 August
1985 cannot be considered as a "determination" within the meaning of
Article 6. Subsequent to the decision on prohibition on removal, the
main concern of the Social District Council was to provide for
facilities by which the obstacles preventing the reunification of the
first applicant and her child could be removed. The means by which
this should be endeavoured are not regulated by law.
161. As a practical matter, the Council in this situation had to
consider a number of different ways of approaching the problem, some
of which gave rise to some practical action, some of which did not.
This process might well have required the Council to take decisions on
particular issues. In the Government's opinion it would, however, not
be feasible to view each position taken by the Council in the course
of these considerations as a "determination" within the meaning of
Article 6, and this is particularly so in respect of tentative
considerations concerning possible measures to be taken that
ultimately did not lead to any form of practical action.
162. As regards the present issue, there is no reason to doubt that
the Council continuously considered when, and under what forms, the
first applicant and her child could be brought together. The fact
that the Council at its meeting of 16 August 1985 did not feel that
the time was ripe for going so far in this respect as suggested by the
first applicant and, accordingly, did not take a decision to this
effect, cannot, in the Government's view, constitute a "determination"
within the meaning of Article 6 of the Convention.
163. Moreover, there exists no provision on which the Social
District Council could base a negative or a positive decision
regarding an application lodged by a parent for access to a child
when an order of prohibition on removal has been issued. It could
therefore be argued that the Social District Council has only informed
the first applicant of the contents of the law in this regard, i.e.
that the Social District Council was not competent from a legal point
of view to make any kind of decision regarding access to the child in
the way she wished.
164. Viewed this way, and given the first applicant's status in
respect of this question as outlined above, it is of no relevance that
she, prior to the Council's meeting, had expressed her opinion as to
how the matter should be handled. As has previously been indicated,
the only way in which she could have obtained a decision by the
Council, which in the Government's view would have amounted to a
"determination" within the meaning of Article 6, would have been to
request the prohibition on removal to be terminated.
165. The Government conclude that the position taken by the Social
District Council on 16 August 1985 did not constitute a
"determination" of the first applicant's "civil rights" within the
meaning of Article 6 para. 1 of the Convention.
The consequences of considering the question regarding the
access of the first applicant to the child as a "determination" within
the meaning of Article 6 would be that all other questions appearing
in the process of reuniting mother and child would also have to be
considered as such "determinations". This would lead to unmanageable
consequences.
166. However in case the Commission would find that the decision
taken by the Social District Council on 16 August 1985 constituted a
"determination" of the first applicant's "civil rights" within the
meaning of Article 6 the Government admit that it may be doubtful
whether the applicant did have the benefit of the guarantees provided
for in that provision.
The legal effect of the decision taken by the Social District
Council on 16 August 1985 is somewhat unclear, since this issue has
not yet been examined by Swedish courts. It is, therefore, difficult
to explain the scope of an examination of an appeal lodged against this
decision. If the Government's analysis is correct, the court may have
rejected the appeal on formal grounds, holding that the decision taken
had no legal effect and that therefore appeals could not be lodged
against it. If the decision would be considered to have some legal
effect the appeal would have been examined on the merits in the usual
manner regarding decisions concerning access to children. A third
possibility could be that the court, depending on how the applicant
presents the case, examines the existence of the prohibition on
removal as such.
167. The Government emphasise that even if an appeal would have
been rejected by the court there are other remedies to achieve an
alteration, namely the following:
- by a new application that the order of prohibition on removal
be revoked;
- by an application to the County Administrative Court
pursuant to Chapter 21 Section 7 of the Parental Code
that the child immediately be transferred to its mother;
- by a judgment made by an ordinary court on request by
the Social District Council that the custody of the child
be transferred to the foster parents pursuant to Chapter 6
Section 8 of the Parental Code.
In proceedings concerning a request for termination of the
prohibition on removal, the Council and the courts shall decide
whether such a prohibition is necessary and, if the answer to this is
affirmative, whether a time-limit should be set for the prohibition.
This means that the contacts between a child and its parents cannot be
determined explicitly in those proceedings in the same way as in
proceedings between two parents concerning custody, or in proceedings
pursuant to Section 16 of the 1980 Act with Special Provisions on the
Care of Young Persons. However, the practical measures taken by the
Social District Council in this regard are one factor that must be
taken into account when an order of prohibition on removal is issued
with or without a time-limit.
168. When a time-limit is set it is intended that the child shall
be returned to its parents when the time-limit has expired. The
purpose is that there shall be some time for making the necessary
arrangements for a reunification. A lack of contact between a child
and its parents due to measures taken by the social authorities, of
course, could be used as an argument for quashing an order of
prohibition on removal, or at least for setting a time-limit where
this has not been done. Thus, a certain pressure could be put on the
social authorities to make the practical arrangements for a
reunification. However, it is always the solution which is considered
to be for the benefit of the child in each situation that will be
chosen. This forms the basic principle concerning custody, taking
children into care, prohibitions on removal, parents' access to a
child and other issues in which the rights of children and their
well-being are at stake.
cc. The withdrawal of the appeal
169. Referring to their submissions above (para. 156), the
Government contend that Article 6 is not applicable in this context.
In addition they submit the following.
170. The first applicant complains that she was forced to withdraw
her appeal in a situation similar to blackmail, in that the social
authorities through the family psychologists engaged in the case
advised her that further court proceedings might prejudice the efforts
made for the purpose of reuniting her with her child.
171. The Government observe that in a letter to the Court of
7 October 1985 the first applicant's counsel stated that the reason
for the withdrawal of the appeal was the advice of the team of
psychologists.
According to information submitted to the Government by the
social authorities this was not correct. The first applicant did not
receive any such information as is referred to in the letter, either
by the psychologist in the team or by the social authorities. The
first applicant has herself denied that she was given any such
information and she became very upset when she was informed of what
her counsel had written in the letter to the Court in this regard.
She has denied that she has expressed herself in that way to her
counsel. To a social welfare officer in the municipality of Lidingö,
she has said that her counsel exaggerated a lot when describing the
situation as something similar to blackmail. Her counsel had urgently
tried to persuade the first applicant not to withdraw her appeal. All
this was said in a telephone conversation between the first applicant
and a social welfare officer on 7 November 1985.
The Social District Council has not informed the first
applicant in the way she alleges, nor has the team of psychologists
been instructed to deliver any such message. The psychologists,
however, have explained to her that it would facilitate meetings with
Lisa if she had not to be faced with the threat of being forced to
move to her mother as a result of the proceedings pending before the
courts.
A welfare officer has discussed the effects of the continuing
proceedings with the first applicant with regard to the possibility of
her creating a positive relationship towards her child. He has
explained that the proceedings have led to the child and the foster
parents living under constant strain. The threat for the child of
having to leave her home has made her afraid of the first applicant
and has thus become an obstacle when creating a closer contact between
them that could lead to a possible reunification.
172. The allegation that the first applicant was forced to withdraw
her appeal in a situation similar to blackmail is a very serious one.
It implies that the first applicant maintains that the social welfare
officers concerned have acted in a way that could be regarded as an
abuse of authority (myndighetsmissbruk). Such an allegation would
normally require a criminal investigation. The Government note that no
such initiative seems to have been taken in this regard. Nor has the
first applicant reported these facts to the Parliamentary Ombudsman,
who would have initiated an investigation if they were brought to his
attention.
173. Even assuming that the first applicant's allegation is
correct, the Government contend that this cannot be considered as
denying the first applicant access to court in conflict with Article 6
of the Convention. In this context the Government refer to the fact
that, still assuming that the first applicant was thus advised, this
information was not furnished by the Social District Council or any
other authority, or by any person acting in an official capacity.
Furthermore, if the family psychologist in question was of the opinion
that further court proceedings might prejudice the handling of the
matter, there is no reason why he should not inform the first applicant
about his opinion.
174. Regardless of the fact that the appeal was withdrawn, the
first applicant could at any time subsequent to the withdrawal have
petitioned the Social District Council for a reconsideration of the
prohibition on removal. A decision of the Council to the effect that
the prohibition would not be discontinued could have been appealed to
the administrative courts.
175. Accordingly, the Government submit that the first applicant
has not been denied access to court in conflict with Article 6 para. 1
of the Convention.
e. Article 13 of the Convention
176. In regard to what has been stated above regarding access to
the child (paras. 159-168) the Government maintain that the question
of a remedy does not arise.
177. In case the Commission does not share this view, the Government
submit that the first applicant did have effective remedies within the
meaning of Article 13 of the Convention.
178. The activity of the Social District Council is subject to
supervision by the Parliamentary Ombudsman whose functions and powers
are basically laid down in Chapter 12 Section 6 of the 1974 Instrument
of Government (regeringsformen) and the 1975 Act of Instruction to the
Parliamentary Ombudsmen (lag med instruktion för justitieombudsmännen).
The Ombudsman is elected by the Parliament, and one of his particular
duties is to ensure that the fundamental rights and freedoms of
citizens are not encroached upon in the process of administration. In
fulfilling this duty, he is empowered to receive complaints lodged by
individuals, to carry out the inspections and investigations he
considers necessary, and to render decisions in which he states his
opinion as to whether a measure or omission on the part of an
authority or an official is illegal or otherwise inappropriate. The
Ombudsman is also vested with the authority of prosecuting officials
or initiating disciplinary measures against them.
179. Furthermore, according to Section 68 of the 1980 Social
Services Act, the activity of the Social District Council is subject
to supervision by the County Administrative Board. Under this
section, the County Administrative Board shall supervise the activity
of the Social District Council and see to it that its obligations are
carried out in an appropriate manner.
180. The Government finally draw attention to the fact that the
first applicant could at any time have petitioned the Social District
Council to have the prohibition on removal discontinued. A rejection
by the Council of such a petition could have been appealed to the
administrative courts.
IV. OPINION OF THE COMMISSION
A. Points at issue
181. The following are the principal points at issue:
The first applicant:
- whether the prohibition for the first applicant to remove
the second applicant from the foster home together with
the restrictions on the right of access between the
applicants constitute a violation of Article 8 (Art. 8) of the
Convention;
- whether there has been a violation of the first applicant's
right guaranteed by Article 2 of Protocol No. 1 (P2-1) to the
Convention to ensure her child's education and teaching in
conformity with her religious and philosophical convictions;
- whether in the proceedings concerning the prohibition on
removal, the first applicant had the benefit of a "fair
hearing" and a "determination" "within a reasonable time"
as required by Article 6 para. 1 (Art. 6-1) of the Convention;
- whether the first applicant was denied access to court,
contrary to Article 6 (Art. 6) of the Convention in relation to
the Social District Council's decision not to regulate
the contacts between the applicants;
- whether the first applicant was denied access to court,
contrary to Article 6 (Art. 6) of the Convention, in relation to her
withdrawal of her appeal against the decision not to lift
the prohibition on removal;
- whether there has been a violation of Article 13 (Art. 13)
of the Convention.
The second applicant:
- whether there has been a violation of Article 8 (Art. 8)
of the Convention.
182. The Commission observes that the application has been brought
by the first applicant not only in her own capacity, but also in her
capacity as the second applicant's natural parent and legal guardian
on behalf of the second applicant. The Commission will first examine
the case from the first applicant's point of view and then from the
second applicant's. In the further examination of the case, the
Commission will refer to the first applicant as "the mother" and to
the second applicant as "Lisa".
B. The first applicant (the mother)
a. Article 8 (Art. 8) of the Convention
183. The applicants complain that the decision to prohibit the
mother from removing her daughter Lisa from the foster home for an
indefinite time combined with the failure of the social authorities to
implement the reunification of the applicants as well as the refusal
of the social authorities to decide on the question of access between
the applicants violated Article 8 (Art. 8) of the Convention. The applicants
also maintain that the existence of the possibility of prohibiting the
first applicant from taking Lisa from the foster home is a breach of
Article 8 (Art. 8).
184. The Government contend that the Swedish law, as well as the
decisions taken in the case, were in conformity with the requirements
of Article 8 (Art. 8) of the Convention.
185. 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."
aa. Whether there was an interference with the mother's
right to respect for family life
186. The Commission recalls that the mutual enjoyment by parent and
child of each other's company is a fundamental element of family life.
The family relationship is not terminated when a child is taken into
care (see e.g. Eur. Court H.R., W v. the United Kingdom, judgment of 8
July 1987, Series A no. 121-A, p. 27, para. 59). Nor does the
Commission consider the family relationship terminated where a parent
is prohibited from removing his or her child from a foster home.
187. Moreover, decisions which deny parents contact with their
children normally constitute an interference with the parents' right to respect
for family life as protected in Article 8 para. 1 (Art. 8- 1) of the Convention
(cf. Olsson v. Sweden, Comm. Report 2.12.86, para. 129).
188. Lisa, who was born on 24 February 1978, has been the subject
of a care order valid from 23 March 1978 to 15 February 1983. The care
order was lifted when she was five years old by a decision of the
Social District Council of 21 January 1983, which became effective on
15 February 1983. In the same decision the Council decided to
prohibit the mother from removing Lisa from the foster home until
further notice. This decision was eventually confirmed by the Supreme
Administrative Court on 11 October 1984.
Lisa has been living in a foster home since she was taken into
care and she is still living in the same foster home. She is now more
than ten years old.
189. The prohibition on removal has now been in force for more than
five years. Its effect is that the mother, although there are no longer
any reproaches against her for inability to care for Lisa, is still
deprived of the factual care of Lisa. Another effect of the
prohibition on removal is that the mother cannot secure a formal
decision on her right of access to Lisa. In this respect the
Commission recalls that on 6 August 1985 the mother lodged with the
Social District Council a request for access to Lisa every second
weekend. The Council found no legal basis for determining the merits
of the request and therefore decided to leave it undetermined.
Moreover, there has in fact been little contact between the applicants
since the care order was lifted.
190. In the Commission's opinion the above facts constitute an
interference with the mother's right to respect for her family life as
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
191. Consequently, it must be examined whether the interference was
justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention. In
order to be justified under the said provision an interference must satisfy
three conditions: it must be "in accordance with the law", it must pursue one
or more of the aims enumerated in Article 8 para. 2 and it must be "necessary
in a democratic society" for that or those aims.
bb. Whether the interference was "in accordance with the law"
192. The applicants submit that the prohibition on removal did not
comply with Swedish law.
The Government submit that the prohibition on removal was "in
accordance with the law" referring, in particular, to the judgment of
the Supreme Administrative Court. They also submit that the restrictions
on the access were "in accordance with the law".
193. As regards the interpretation of the phrase "in accordance
with the law", it is recalled that the Convention organs have analysed
this phrase on several occasions (see e.g. Eur. Court H.R., Malone
judgment of 2 August 1984, Series A no. 82, pp. 31-33, paras. 66-68).
The Commission recalls the following general principles.
The word "law" covers both written and unwritten law. The
interference must have some basis in domestic law. The phrase refers
primarily to domestic law, but it includes two requirements which go
beyond simple compliance with the domestic law. These requirements
relate to the quality of the law and are: accessibility and
foreseeability. This means that the individual must have an
indication that is adequate as to the legal rules which are applicable
in a given case and he or she must be able - if necessary with legal
advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail. 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). Moreover, a law which confers a discretion on
the authorities must indicate the scope of any such discretion.
It is also established case-law that although the "law" must
be foreseeable it is impossible to attain absolute precision in the
framing of laws (Eur. Court H.R., Barthold judgment of 25 March 1985,
Series A no. 90, p. 22, para. 47). A law which confers a discretion
on the courts or the public authorities is not in itself inconsistent
with the condition of foreseeability, provided that the scope of the
discretion and the manner of its exercise are indicated with
sufficient clarity, having regard to the legitimate aim of the measure
in question (see Eur. Court H.R., Gillow judgment of 24 November 1986,
Series A no. 109, p. 21, para. 51).
The system of the Convention sets limits on the scope of
review exercisable by the Convention organs in respect of the
condition "in accordance with the law". It is in the first place for
the national organs, in particular the courts, to interpret and apply
the domestic law since they are particularly qualified to settle such
issues (Barthold judgment, loc. cit., p. 22, para. 48).
194. The applicants submit that the mere existence of Section 28
of the Social Services Act enabling the social authorities to issue an
order on prohibition on removal until further notice constitutes a
violation of Article 8 (Art. 8) of the Convention.
195. The Commission disagrees with this contention. Where a child
has been living in a foster home for a long period, it is normal that
a transitional period is required before the child can be moved to its
natural parents, in particular, if there has previously been little
contact between the parents and the child. The fact that such a
transitional period, under Section 28 of the Social Services Act, can
be ordered without a fixed time-limit may, as the Supreme Administrative
Court has explained in its judgment (para. 33), be justified in
particular circumstances.
196. The Commission recalls that Section 28 of the Social Services
Act provides that a prohibition on removal may be issued "if there is
a risk, which is not of a minor nature, of harming the child's physical
or mental health", if it is moved from the foster home. The contents
of the travaux préparatoires relating to Section 28 (cf. paras. 74-75)
clarify how this provision should be interpreted.
197. The Commission finds that Section 28 of the Social Services
Act satisfies the requirement of being a "law" within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
198. The applicants also submit that the condition "in accordance
with the law" was not satisfied in this case since there was no
evidence of any risk if Lisa were to be moved.
199. The Commission observes that the question of the prohibition
on removal has been examined by the Social District Council, the County
Administrative Court, the Administrative Court of Appeal and the
Supreme Administrative Court. Noting the contents of, in particular,
the latter's judgment, the Commission finds nothing to suggest that
the decision to issue a prohibition on removal until further notice
was contrary to Swedish law.
200. As regards the restrictions on access following the
prohibition on removal, the Commission notes the Government's
submission that the legislator has not foreseen that a prohibition on
removal will remain in force for a long period and, consequently, not
laid down any specific provisions concerning right of access when such
a prohibition is in force (paras. 134-137). In such circumstances, the
Commission considers that the absence of rules regarding the right of
access could give rise to an issue as to the quality of the law in
view of the considerable period during which the prohibition on
removal has been in force in the present case.
201. The Commission nevertheless accepts that the interference
under consideration was "in accordance with the law" within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
cc. The aim of the interference
202. The ultimate aim of the activities of the Social Council was,
according to its original decision, to reunite the applicants.
However, in order to avoid that any damage was done to Lisa by a
quick and unprepared transfer of her to her mother a prohibition on
removal was issued as a temporary measure. The authorities have also
regulated the mother's access to Lisa during the prohibition on
removal with the aim of protecting Lisa.
Consequently, the Commission finds that the interference
described above was taken with a view to safeguarding the interests of Lisa.
This is a legitimate aim under Article 8 para. 2 (Art. 8-2) falling under the
expressions "for the protection of health or morals" and "for the protection of
the rights and freedoms of others".
dd. The necessity of the interference
203. It remains to be examined whether the decisions on prohibition
of removal and the restrictions of access between the applicants were
"necessary in a democratic society" in the interests of Lisa.
204. As regards the interpretation of this expression the
Commission recalls the following case-law of the Convention organs.
205. "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). The scope of the
"margin of appreciation" varies depending on the nature of the aim
which is being pursued in restricting an individual's right.
206. 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" (see e.g. Eur. Court H.R.,
Olsson judgment of 24 March 1988, Series A no. 130, para. 68).
207. The Commission recalls that a prohibition on removal is a
measure which may be applied in a situation where no reproaches are
levelled against the natural parents, but where the interests of the
child, who may have lived for a long time in a foster home, militate
in favour of a transitional period before the child is actually
returned to its natural parents. A prohibition on removal is thus
meant to be a temporary measure. The temporary nature of a prohibition
on removal may also explain that there are no legal provisions
allowing for regulations of the parents' right of access. According
to the Government the legislator has not foreseen that a prohibition
on removal will remain in force for a long period.
208. The Commission recalls that, in the present case, the decision
to prohibit removal until further notice was arrived at after three
levels of court review following the initial decision of the Social
District Council. The decision was based on substantial
investigations, including a number of medical certificates. There
were hearings before the County Administrative Court and the
Administrative Court of Appeal, where the mother was legally
represented. She has therefore been able to submit all the arguments
and evidence she wished to bring forward. Moreover, before the said
courts different experts, witnesses and other persons involved were
heard orally or submitted written opinions.
209. The Commission observes that the Supreme Administrative Court,
having considered the development in the case, found that appropriate
measures aiming at the reunification had not been taken at that stage
and that there was therefore no basis for setting a time-limit for the
prohibition on removal. Having regard to the margin of appreciation
enjoyed by the national authorities and to the reasons for the
judgments, the Commission finds that, in these circumstances, the
Swedish authorities had, in October 1984, sufficient reasons for
considering that it was necessary to maintain the prohibition on
removal in force until further notice.
210. However, the Commission cannot restrict its examination to
the facts of the case as they were when the Supreme Administrative
Court delivered judgment in October 1984. It must examine the case as
a whole (cf. para. 205). In this context it is particularly important
to examine the general contents of the Supreme Administrative Court's
judgment and how the responsible authorities have implemented the
judgment.
211. The Commission considers that once a decision to return a
child to its natural parents has been taken it must be in the
interests of all parties involved that such a decision is implemented
as quickly as possible. A prohibition on removal temporarily suspends
the removal of the child and is therefore, although it may be
justified during a transitional period, a measure which by its very
nature is likely to increase the tension between those involved in the
transfer of the child, notably the child, the foster parents and the
natural parents. If such a situation prevails for a long time there
is a great risk that, as time goes by, the conflicts will increase and
that it gradually will become more difficult to establish the close
relationship between the child and his or her natural parent which is
a necessary condition for the transfer.
212. The importance of swift and effective measures to reunite the
parent and the child when a prohibition on removal is in force was
emphasised by the Supreme Administrative Court which stated
(cf. para. 33):
"Irrespective of the duration of the prohibition, the
Social District Council is obliged to see to it that
appropriate actions aiming at a reunification are taken
without delay. Such actions are required in particular
when the Council ... has found reasons to order a prohibition
until further notice. Otherwise there is a great risk that,
in the meantime, the child will become more closely linked
to the family it is about to leave."
213. Consequently, it followed from the Supreme Administrative
Court's judgment that Lisa should be returned to her mother and that
this should be done as speedily as possible, although no specific
time-limit had been fixed. The previous care order had been lifted
and there was no question of Lisa being adopted by the foster parents
or of the custody of her being transferred to them under the Parental
Code. The aim to return Lisa to her natural parents was expressed
already by the Social District Council in its original decision of 23
January 1983. Moreover, the Supreme Administrative Court's judgment
contained a clear order to the Social District Council to take quick
and appropriate measures to reunite the applicants. Here the
Commission recalls that already in March 1984 the Administrative Court
of Appeal found that "what the Social District Council has done so
far, as preparatory measures for the removal of Lisa, has obviously
not been calculated to promote the conditions for such a reunification
to any measurable extent" (cf. para. 31).
214. While the Social District Council was under an obligation,
according to the Supreme Administrative Court's judgment, to take
appropriate action in order to bring about a reunification as soon as
possible, it was also the duty of the Council to see to it that the
reunification could be effected without damage to Lisa. However, the
experts, on whose advice the Council relied in this regard, considered
that Lisa should remain in the foster home and not be transferred to
her natural parents. This was also the view of the County
Administrative Board and the National Board of Health and Welfare.
215. On the basis of their opinion that Lisa should not be
transferred to her parents, the experts also took a restrictive view
in regard to the frequency of the mother's access to Lisa and in
regard to the conditions under which such access should take place.
When this advice was followed, it meant on the other hand that the
reunification aim which had been clearly indicated by the Supreme
Administrative Court would not be promoted and that reunification, if
it was to take place at all, would be a very lengthy process.
216. The Commission notes that in the period from February 1983,
when the prohibition on removal came into force, to September 1987,
i.e. a period of four years and seven months, there have not been more
than 29 meetings between the applicants. Moreover, most of these
meetings took place under circumstances (the presence of social
workers, the foster parents, etc.) which must have made it difficult
for the mother to establish a natural family relationship with Lisa.
217. The Commission has not overlooked that it may have been
difficult to promote the reunification of the applicants, for instance
as a result of the negative attitude of the experts who in Lisa's
interest advised against a reunification, the antagonism between the
mother and the foster parents and the reluctance of the foster parents
to co-operate in order to facilitate the transfer of Lisa.
218. It was against this background that the mother was
unsuccessful when she tried to promote the reunification. In August
1985, she requested that her access to Lisa should be increased to one
meeting every second weekend, but the Social District Council decided
not to take any new decision on the frequency of visits at that time.
Prior to that, the mother had requested that the prohibition on
removal be revoked, but this request was rejected on 18 January 1985.
She appealed against this decision but subsequently withdrew her
appeal in the hope, as she submits, that she would thereby facilitate
the contacts between her and Lisa. Later, she again requested that
the prohibition on removal be revoked, but this request was rejected
by the Social District Council on 5 June 1987. Her appeal against
this decision was rejected on 15 June 1988 by the County
Administrative Court of the County of Stockholm.
219. The Commission recalls that the Supreme Administrative Court,
on 11 October 1984, decided that as speedy action as possible should
be taken to bring about Lisa's transfer to her natural parents. The
measures that were taken during the following years cannot, in the
Commission's opinion, be considered adequate to promote this aim. In
particular, the regulations and arrangements concerning access to Lisa
were inadequate to promote the aim of a reunification of the
applicants. The Commission notes in this context the severe criticism
expressed by the County Administrative Court (para. 41) which stated
that the inactivity of the Social District Council has made it even
more difficult to lift the prohibition on removal.
220. Moreover, the Commission considers that the uncertainty about
Lisa's future which has prevailed ever since January 1983, when it was
decided to terminate the care order and to issue a prohibition on
removal, was in itself unsatisfactory and potentially harmful to all
the parties concerned, in particular to Lisa. The Commission is of the
opinion that it was not in Lisa's interests to leave the question of
her future open and uncertain for so many years.
221. On the basis of the above considerations, the Commission
considers that the measures taken cannot be considered to have been
necessary for the protection of Lisa's health or for the protection of
her rights in general. Consequently, the interference with the
mother's right to respect for her family life was not "necessary in a
democratic society" in Lisa's interests within the meaning of Article 8
para. 2 of the Convention.
Conclusion
222. The Commission concludes, by nine votes to one, that there has
been a violation of Article 8 (Art. 8) of the Convention.
b. Article 2 of Protocol No. 1 (Art. P2-1) to the Convention
223. The mother alleges that there has been a violation of her
right to ensure for her child an education in conformity with her own religious
convictions. She invokes Article 2 of Protocol No. 1 (Art. P2-1), which
provides:
"No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right
of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions."
224. The Government submit that this allegation has not been raised
before the Swedish courts. Nor has the mother made any other request
concerning the religious education of her child. The Government
further maintain that Lisa has received proper education in the foster
home. They conclude that there is no breach of Article 2 of Protocol
No. 1 (Art. P2-1).
225. From the facts of the case, it appears that the mother is now
an active member of the Philadelphia congregation (Pentecostal
movement). However, Lisa was placed in the foster home before the
mother was engaged in this religious congregation and Lisa has been
living in the foster home during practically all of her life.
Furthermore, it does not appear from the judgments delivered by the
domestic courts that the mother has pursued this question at the
domestic level.
226. In these circumstances the Commission finds that the claim
under Article 2 of Protocol No. 1 (Art. P2-1) is rather to be regarded as an
additional argument to the main allegation of a violation of Article 8
(Art. 8) of the Convention. As a separate claim of a violation under Article 2
of Protocol No. 1 (Art. P2-1) it is wholly unsubstantiated.
Conclusion
227. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 2 of Protocol No. 1 (Art. P2-1) to the Convention.
c. Article 6 (Art. 6) of the Convention
228. The mother alleges that she has been the victim of a violation of
Article 6 para. 1 (Art. 6-1), first sentence 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."
229. The mother alleges a violation of Article 6 para. 1 (Art. 6-1) on three
different grounds:
(a) that in the proceedings concerning the prohibition on
removal she did not have a "fair hearing", and that the duration of the
proceedings exceeded what can be regarded as a "reasonable time" within
the meaning of Article 6 (Art. 6);
(b) that she was denied access to court in relation to the
decision of the Social District Council of 16 August 1985 when it
decided not to make any ruling on her right of access to Lisa;
(c) that in respect of her appeal against the Social District
Council's decision of 18 January 1985 there has been a denial of
access to court, since she was induced to withdraw her appeal.
230. The Government contest that there has been any violation of
Article 6 para. 1 (Art. 6-1) of the Convention.
aa. The proceedings concerning the prohibition on removal
i. The applicability of Article 6 para. 1 (Art. 6-1)
231. The Government submit that Article 6 (Art. 6) of the Convention did
not apply to the proceedings at issue since they did not relate to the
first applicant's "civil rights and obligations".
7232. The Commission recalls that family law rights are civil in character
and therefore fall within the scope of Article 6 para. 1 (Art. 6-1) of the
Convention (see, for instance, Eur. Court H.R., Rasmussen judgment of 28
November 1984, Series A no. 87, pp. 12-13, para. 32). The mutual enjoyment by
parent and child of each other's company constitutes a fundamental element of
family life (W v. the United Kingdom judgment of 8 July 1987, loc. cit., p. 27,
para. 59). The Commission considers that a decision as to whether a parent
should be prohibited from moving his or her child from a foster home is, having
regard to the effects on the enjoyment of the family life of such a
prohibition, decisive for the parent's "civil rights". A decision concerning
the duration of such a prohibition is equally decisive for the parent's "civil
rights".
233. Moreover, since there was a dispute ("contestation") over the
prohibition on removal and in particular the duration of that
prohibition, the Commission finds that the proceedings concerning the
prohibition on removal related to a "determination" of the first
applicant's "civil rights and obligations". Accordingly, Article 6
para. 1 (Art. 6-1) of the Convention was applicable to those proceedings.
ii. The compliance with Article 6 para. 1 (Art. 6-1)
234. The mother complains that she did not receive a fair
hearing. The Government disagree.
In accordance with Article 19 (Art. 19) of the Convention, the
Commission's task is only to ensure the observance of the obligations
undertaken by the Contracting States in the Convention. The
Commission is not competent to deal with an application alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights or freedoms set out in the Convention
(cf. e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No.
5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No; 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
235. The mother in essence alleges that the court hearing was
unfair since she was at a disadvantage compared with the social
authorities and the foster parents, who had Lisa in their control. The
Commission recalls that the mother had her case examined by three
different courts after the initial decision by the Social District
Council. In these proceedings the mother was assisted by counsel.
She must therefore have been able to present and argue her case fully.
The Commission observes in this context that the mother withdrew her
appeal before the Supreme Administrative Court. It is not the Commission's
task under Article 6 (Art. 6) of the Convention to assess whether or not the
courts have correctly assessed the evidence before them.
236. The Commission considers that the allegations made by the
mother do not indicate that the proceedings in the case were unfair.
The Commission understands that the mother may find herself at a
disadvantage as regards certain aspects of the case. However, having
examined the proceedings in the case as a whole, the Commission finds
no indication that they were not "fair" to the mother within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
237. As regards the duration of the proceedings, the Commission
recalls the following. The prohibition on removal was issued on 21
January 1983 and became effective on 15 February 1983 when the care
order was cancelled. The mother appealed against the prohibition on
removal to the County Administrative Court. The final decision was
taken by the Supreme Administrative Court on 11 October 1984. The
time to be taken into account is thus approximately 20 months. Before
the case was brought before the Supreme Administrative Court, it had
been dealt with by the County Administrative Court and the
Administrative Court of Appeal which both held hearings in the case
and which delivered judgments on 10 October 1983 and 6 March 1984
respectively.
The Commission further recalls that the dispute which
remained before the Supreme Administrative Court was whether
the prohibition on removal should remain in force until further notice
or for a fixed time. The County Administrative Court had fixed the
time-limit at 31 March 1984 and the Administrative Court of Appeal
fixed it at 30 June 1984, whereas the Supreme Administrative Court
resolved that the prohibition on removal should not be for a specific
period but remain in force until further notice.
238. In these circumstances, the Commission finds that, although it
is of great importance that matters of this nature are dealt with
swiftly, the duration of the proceedings cannot be said to have
exceeded a "reasonable time" within the meaning of Article 6 para. 1
(Art. 6-1).
Conclusion
239. The Commission conludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in the
proceedings concerning the prohibition on removal.
bb. The request concerning access to the child
240. The mother complains that she was denied access to court in
relation to her claim for extended access to Lisa.
The Government submit in the first place that the issue of
access to Lisa did not concern a "civil right" of the mother.
Secondly, they argue that questions of this kind are practical
questions which must be decided in the course of the efforts to
reunite the applicants, and that decisions on such practical matters
do not amount to a "determination" within the meaning of Article 6
para. 1 (Art. 6-1). Thirdly the Government submit that there was no rule in
Swedish law on which the Social District Council could base a decision
on access when the prohibition on removal was in force. Finally, the
Government contend that the only way of obtaining a decision on the
issue of access was to request that the prohibition on removal be
terminated.
The Commission does not agree with the Government.
i. The applicability of Article 6 para. 1 (Art. 6-1)
241. Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone,
who claims that an interference by a public authority with his "civil
rights" is unlawful, the right to submit such a claim to a tribunal
meeting the requirements of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R.,
Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A
no. 43, p. 20, para. 44). The claim or dispute must be "genuine and
of a serious nature" (see Eur. Court H.R., Benthem judgment of 23
October 1985, Series A no. 97, p. 14, para. 32).
A parent's access to his or her child forms an integral part
of family life and a right of access is therefore a "civil" right (see
W v. the United Kingdom judgment, loc. cit., pp.34-35, para. 78).
242. The Commission considers that, consequently, a dispute
relating to a natural parent's right of access to a child who is the
subject of a prohibition on removal from the foster home is a dispute
relating to that parent's "civil rights".
243. However, Article 6 para. 1 (Art. 6-1) only applies to disputes over
"rights" which can be said, at least on arguable grounds, to be
recognised under domestic law. Article 6 (Art. 6) does not in itself guarantee
any particular content for the "right" in the substantive law of the
Contracting States (see Eur. Court H.R., Lithgow and Others judgment
of 8 July 1986, Series A no. 102, p. 17, para. 192). It follows that,
for Article 6 para. 1 (Art. 6-1) to be applicable in the present case, it must
first be established that under Swedish law the applicant had an
arguable "right" of access to the child when the prohibition on
removal was in force.
244. As regards the question whether the mother had any "right"
under Swedish law the Commission notes the following.
As long as the care order was in force, the mother had a right
under Swedish law of access to Lisa. This is clear from Section 16 of
the 1980 Act which provides that the Social Council may regulate the
natural parent's right of access to the child and that any such
decision relating to the right of access can be reviewed by the
administrative courts upon appeal pursuant to Section 20(4) of the
1980 Act.
245. However, there are no corresponding provisions which apply
during the time when a prohibition on removal is in force. It could
be argued that a prohibition on removal implies a total extinction of
the right of access of the natural parent as long as the prohibition
is in force. The Government do not make any such argument but submit
that the Swedish law has not made any provision for right of access
when a prohibition on removal is in force, mainly because such an
order is not supposed to be in force for a long time.
246. The Commission considers that it cannot be concluded that
Swedish law does not recognise the natural parent's right of access to
the child when a prohibition on removal is in force. Moreover, it
would seem to be paradoxical if there was a right of access as long as
a care order is in force whereas, when such an order has been lifted
and there is a temporary order that the child should remain in the
foster home, the natural parent's right would be extinguished.
Moreover, in its decisions of 23 January 1983 and 31 March 1983 the
Social District Council has in fact made regulations concerning access
to Lisa during the time of the prohibition on removal. This fact
strongly suggests that Swedish law implicitly recognises a right of
access.
The Commission concludes that the mother could, at least on
arguable grounds, claim to have a right of access to Lisa under
Swedish law also during the period when the prohibition on removal is
in force.
247. As regards the argument that questions of access are practical
matters, it appears that the argument aims at leaving a discretion to
the Social Council in such matters without the possibility of a court
review. The Commission considers, however, having regard to the nature
and aim of a prohibition on removal, that the issue of access to the
child during the period when this prohibition is applied is of
paramount importance. In effect, it could be said that the right of
access in this particular case is decisive for whether and when the
prohibition on removal will be lifted. Therefore, the dispute which
arose over the access is such a substantial dispute that Article 6 para. 1
(Art. 6-1) of the Convention is applicable (cf. W v. the United Kingdom
judgment, loc. cit., p. 35, para. 79).
248. The Commission concludes that Article 6 para. 1 (Art. 6-1) of the
Convention was applicable in relation to the mother's claim of access
to Lisa.
ii. The compliance with Article 6 para. 1 (Art. 6-1)
249. The mother was thus entitled to a procedure satisfying the
conditions of Article 6 para. 1 (Art. 6-1) of the Convention in respect of her
claim of access to Lisa.
The Government admit that it is doubtful whether the first
applicant could have appealed against the Social District Council's
decision of 16 August 1985 in which the Council informed the mother
that there was no rule on which it could base a decision on access and
that consequently it did not make any formal decision on the mother's
request for access to her child every second weekend.
250. In view of this information and in view of the Government's
submissions it cannot be concluded that the mother could have obtained
a decision on her claim of access to Lisa every second weekend had she
appealed against the decision of the Social District Council.
251. The Government further maintain that the mother could have
used other remedies and, notably, asked for the prohibition on removal
to be lifted.
In this respect the Commission recalls that the mother has
not, at least not always, contested the existence of the prohibition
on removal as such. For instance, before the Supreme Administrative
Court she did not maintain her claim that the prohibition be lifted.
However, the mother has consistently taken the line that any
prohibition on removal should be short and combined with access
arrangements. The Commission is therefore of the opinion that an
application for a revocation of the prohibition on removal does not
provide the mother with a remedy for the claim of access to Lisa every
second weekend as long as the prohibition on removal is in force.
The other remedies referred to by the Government (para. 167)
are not relevant to the mother's right to access while a prohibition
on removal is in force.
252. Consequently, the mother did not have at her disposal a procedure
satisfying the conditions of Article 6 para. 1 (Art. 6-1) in respect of the
dispute which arose over her right of access to Lisa during the period when the
prohibition on removal was in force.
Conclusion
253. The Commission concludes, by eight votes to two, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the
claim for access to Lisa.
cc. The withdrawal of the appeal
i. The applicability of Article 6 para. 1 (Art. 6-1)
254. For the reasons indicated above under paras. 232-233, the
Commission considers that Article 6 para. 1 (Art. 6-1) was also applicable in
respect of the mother's appeal to the County Administrative Court
against the Social District Council's decision of 18 January 1985 not
to terminate the prohibition on removal.
ii. The compliance with Article 6 para. 1 (Art. 6-1)
255. The mother submits that as a result of the activities of the
social authorities she was induced to withdraw the appeal. She
contends, in essence, that this amounts to a denial of the right of
access to court in breach of Article 6 para. 1 (Art. 6-1).
256. It is true that an impediment to the right of access to court may
violate Article 6 para. 1 (Art. 6-1) (cf. Eur. Court H.R., Golder judgment of
21 February 1975, Series A no. 18). If it were established that Swedish
authorities have prevented the mother from pursuing her appeal before the
County Administrative Court an issue under Article 6 (Art. 6) would arise.
However, such a serious allegation must be substantiated by relevant evidence.
257. The Commission notes that the mother has not reported this
matter to the public prosecutor or the Parliamentary Ombudsman in
Sweden. Having examined the facts of the case and the parties'
submissions the Commission finds that it has not been substantiated
that the authorities have denied the mother access to court or
interfered with that access, in respect of her request for a
termination of the prohibition on removal.
Conclusion
258. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards
the withdrawal of the mother's appeal concerning the prohibition on
removal.
d. Article 13 (Art. 13) of the Convention
259. The mother submits that she has no effective remedy in respect
of the alleged violations of the Convention, notably as regards the
impossibility of bringing the issue of access to Lisa before a court
and in respect of the alleged violation of Article 2 of Protocol No. 1 (Art.
P2-1). She invokes 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."
260. Having regard to its above conclusions under Article 6 para. 1 (paras.
253) (Art. 6-1) in respect of the claim for access to Lisa the Commission
considers that it is not necessary to examine this aspect of the case under
Article 13 (Art. 13). The requirements of Article 13 (Art. 13) are less strict
than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1) (see,
inter alia, Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September
1982, Series A no. 52, p. 31, para. 88).
261. As regards the alleged violation of Article 13 (Art. 13) of the
Convention taken together with Article 2 of Protocol No. 1 (Art. P2-1), the
Commission considers that, in view of what has been stated above under Article
2 of Protocol No. 1 (Art. P2-1) (paras. 223-227) and having regard to the
principles developed by the European Court, the complaint under Article 2 of
Protocol No. 1 (Art. P2-1) is wholly unsubstantiated and the mother cannot be
said to have an "arguable claim" of a violation of Article 2 of Protocol No. 1
(Art. P2-1) (cf. e.g. Eur. Court H.R., Silver and Others judgment of 25 March
1983, Series A no. 61, p. 42, para. 113 and Eur. Court H.R., Boyle and Rice
judgment of 27 April 1988, Series A No. 131).
Consequently, since the mother has no arguable claim of a
violation of Article 2 of Protocol No. 1 (Art. P2-1) to the Convention, the
Commission finds no violation of Article 13 (Art. 13) of the Convention.
Conclusion
262. The Commission concludes, by a unanimous vote that there has been no
violation of Article 13 (Art. 13) of the Convention in conjunction with Article
2 of Protocol No. 1 (Art. P2-1).
C. The second applicant (Lisa)
263. Both applicants complain of a violation of Article 8 (Art. 8) of the
Convention, Article 2 of Protocol No. 1 (Art. P2-1) to the Convention and
Articles 6 and 13 (Art. 6, 13) of the Convention.
264. The complaints under Article 2 of Protocol No. 1 (Art. P2-1) and
Articles 6 and 13 (Art. 6, 13) of the Convention, as presented to the
Commission, only concern the first applicant. The second applicant cannot
claim to be a victim of a violation of these provisions. She can only claim to
be a victim of a violation of Article 8 (Art. 8) of the Convention. As to the
substance of her complaints regarding that Article, reference is made to the
summary given in connection with the mother's complaints (see para. 183 above).
265. In this respect, the Commission recalls that it has concluded
above (para. 222) that there has been a violation of the mother's
right to respect for family life on the basis of the prohibition on
removal which has been in force for more than five years and the
failure of the authorities to implement the reunification of the
applicants.
266. It is not the Commission's task to express an opinion on
whether the best solution for Lisa, under the circumstances prevailing
today, would be to stay with the foster parents or to be transferred
to her mother. However, the Commission considers that it follows from
the mutual nature of family life that the inadequate measures taken
for the reunification of the applicants and the uncertainty which has
prevailed for many years (paras. 214-220) constitute a violation not
only of the mother's right but also of Lisa's right to respect for
family life as guaranteed by Article 8 (Art. 8) of the Convention.
Conclusion
267. The Commission concludes, by nine votes against one, that
there has been a violation of Article 8 (Art. 8) of the Convention.
D. Recapitulation
The first applicant
268. - The Commission concludes, by nine votes to one, that there has
been a violation of Article 8 (Art. 8) of the Convention (para. 222).
- The Commission concludes, by a unanimous vote, that there has
been no violation of Article 2 of Protocol No. 1 (Art. P2-1) to the Convention
(para. 227).
- The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in
the proceedings concerning the prohibition on removal (para. 239).
- The Commission concludes, by eight votes to two, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the
claim for access to Lisa (para. 253).
- The Commission concludes, by a unanimous vote, that there
has been no violation of Article 6 (Art. 6) of the Convention as regards the
withdrawal of the mother's appeal concerning the prohibition on
removal (para. 258).
- The Commission concludes, by a unanimous vote, that there
has been no violation of Article 13 (Art. 13) of the Convention in conjunction
with Article 2 of Protocol No. 1 (Art. P2-1) (para. 262).
The second applicant
- The Commission concludes, by nine votes to one, that there
has been a violation of Article 8 (Art. 8) of the Convention (para. 267).
Secretary to the Commission Acting President of the Commission
(H. C. KRUGER) (J. A. FROWEIN)
Dissenting opinion of Mr. H.G. Schermers
A. Article 8 of the Convention
1. The main problem of this case is the question whether the
right to respect for family life, guaranteed in Article 8 of the
Convention, has been infringed. Before answering this question we must
consider what family life is at stake. Is it the family life of the
natural mother, of the foster parents, of the child itself?
2. In the Berrehab case (judgment of 21 June 1988) the European
Court of Human Rights held that a child born in wedlock is ipso
jure part of the relationship created by the marriage of its parents
and that "hence, from the moment of the child's birth and by the very
fact of it, there exists between it and its parents a bond amounting
to "family life", even if the parents are not then living together
(cf. Berrehab judgment, para. 21). The Court also held that
cohabitation is not a sine qua non of family life between parents
and minor children (idem). The Court recognized that subsequent
events may break the tie but it did not further elaborate when such a
break occurs, as in the Berrehab case there was no question of a break
in the relationship.
In the absence of further case-law on the questions as to when
and how ties of family life can be broken, I am ready to accept that
there is always family life (as of nature) between a mother and her
child. In fact not all family life is equally strong. In the present
case the family life between mother and child is rather weak as there
has never been any cohabitation. Nonetheless, Article 8 of the
Convention prohibits the Government to interfere with this family life
unless the conditions of Article 8 para. 2 are fulfilled.
3. The notion of family life in Article 8 of the Convention does
not necessarily require bonds of blood or lawful marriage. The
connection in the Article to private life and home rather suggests
that the immediate surroundings of a person, the sphere in which he
lives, are meant. Also factual circumstances, such as long
cohabitation, may create family life. Normally, there will be family
life (as of fact) between foster parents and their children. The
strength of this family life depends on factual circumstances and, in
particular, on the duration and the age of the child and on the
relationship between duration and age. Three years of a child of 15 is
less than 3 years of a child of 4. In the case at hand the duration is
now more than ten years and over 99 % of the child's lifetime. There
can be no doubt that there is a right to family life of the foster
parents that has to be taken into account. In my opinion it even has
to weigh heavily. However, the right to respect for family life of the
foster parents is not part of the present application and, therefore,
it does not require separate discussion.
4. Finally, there is the family life of the child. The natural
mother claims that this family life has been infringed because the
child is still staying with the foster parents. There is no
indication, however, that the child prefers family life with the
natural mother over family life with the foster parents, nor is there
any indication that her interests require a transfer from the foster
family to the mother. It may be true that in law the natural mother is
entitled to bring a case on behalf of her child, factually it is a
case of the mother herself. We are faced with a general problem of
child representation. The legal representative of a child is charged
with the child's interests, but in cases of family life his personal
involvement may prevent him from being the most proper representative.
I find it impossible to discuss the case of the child solely on the
basis of the submissions of the mother. For the application of the
child the arguments of the foster parents have to be taken into
account as well. On the ground of the arguments before us I can find
no proof that the child's right to family life has been infringed. In
my opinion the petition brought on behalf of the child is
insufficiently substantiated.
5. In fact, the present case solely concerns the right to
family life of the natural mother. As mentioned in para. 2 above, a
natural mother normally has a right to live together with her child.
The question is whether the interference of this right was justified
under Article 8 para. 2. This question is discussed extensively in the
Commission's Report. In general I agree with the considerations
expressed in paras 186-209 of the Report, which lead to the
conclusions that the interference was in accordance with the law and
had a legitimate aim, inter alia for the protection of the rights
and freedoms of others. In addition to the rights and freedoms of the
child, also the rights and freedoms of the foster parents justify, in
my opinion, an interference with the family rights of the natural
mother.
6. With respect to the necessity of the interference, the
majority of the Commission seems to object to the Swedish system under
which it is possible that a court decision terminating the care does
not lead to the immediate transfer of the child. Although I accept
that in the present case the system has not operated properly, I do
not agree that the system as such is wrong. In a case like the present
one any sudden change in the situation is contrary to the interest of
the child. It is not a bad system when, after the care is terminated,
the child must remain with the foster parents for a period of time
during which the relationship with the natural mother is to be
strengthened. Thus an interim period is created during which the child
can gradually adapt to the changing situation. The decision to return
the child will have some legal effects. In practice, it will most
likely also affect the relationship between the child and the foster
parents as the child can unilaterally break this relationship by
running away to the natural parent. There will, therefore, be
considerable pressure on the foster parents to co-operate to the
gradual transfer of the child, in the present case, with the help of
the Children's and Juveniles' Psychiatric Clinic.
The fact that the system sometimes fails - and that it failed
in the present case - does not necessarily mean that it is wrong. The
creation of bonds of affection and love is difficult. It is
understandable that foster parents who love their child will fight for
keeping it and may, therefore, not always whole-heartedly co-operate
in creating bonds of affection between the child and its natural
parents. A more abrupt change may promote legal certainty and may
make it easier for the parents as well as for the foster parents, but
it will more likely damage the child.
7. One could perhaps criticize the behaviour of the authorities
which seem to have been inactive in trying to get the child adapted to
her natural mother and who, in fact, have transformed a temporary
prohibition to transfer into a permanent allocation of the child to
the foster parents. In this respect we must, however, leave a
considerable amount of discretion to the national authorities. Not
knowing the factual situation nor the child, the Commission is not in
a situation to establish whether and to what extent a transfer would
be detrimental to the child.
8. To a large extent the problems are caused by the fact that the
decision of the Supreme Administrative Court to have Lisa returned to
her natural parents as speedily as possible was not supported by the
experts involved nor by the County Administrative Board, the National
Board of Health and Welfare or the Social District Council. In its
judgment the Court left room for the opinion of the authorities and,
based on their conviction that Lisa should stay with her foster
parents, the authorities did not speedily execute the Supreme
Administrative Court's decision that she should be transferred to her
natural mother. If this is to be seen as a contempt of court, then a
problem may arise under Article 13 of the Convention (see below), but
that problem is not directly related to Article 8. Under this Article
only the question of family life is at stake and that question is
whether the Convention is violated by the fact that Lisa is still
staying with her foster parents. The intricate relationship between
the domestic courts and authorities does not necessarily concern
family life.
9. I must conclude that the interference with the first
applicant's right to respect for her family life was justified under
para. 2 of Article 8. I cannot, therefore, find a violation of the
Article.
B. Article 6 of the Convention
10. I share the opinion of the majority that Article 6 is
applicable and that Article 6 para. 1 has not been violated in the
proceedings concerning the prohibition on removal (paras 228-239 of
the report). I am not fully convinced, however, that no court remedy
was possible with respect to access to the child. The Supreme
Administrative Court had ordered that action must be taken to bring
about the transfer of the child. Such action would necessarily contain
an increase of the rights of access of the natural mother. There may
have been practical reasons impeding such an increase, but any
decrease of the rights of access would clearly violate the Court's
judgment. That violation could be the basis for further court
proceedings. Even though, in Sweden, there may not be an action based
on contempt of Court, it would be possible to request the termination
of the prohibition on removal on the ground that the Court's judgment
containing this prohibition was not properly executed. Alternatively,
the natural mother could have asked under the Parental Code for an
enforcement order that the child should be transferred to her, also
based on the infringement of the judgment of the Supreme
Administrative Court containing the temporary prohibition on removal.
C. Article 13 of the Convention
11. The Convention does not contain any express provision on the
execution of judgments, but Article 13 grants an effective remedy
to anyone whose rights and freedoms, as set forth in the Convention, are
violated. This must entail an obligation of the Governments to make
possible the execution of lawfully established court decisions
determining civil rights and obligations. The Commission discussed the
obligation to execute court decisions in the cases of Sequaris
(9676/82) and Leemans-Ceurremans (11698/85). By declaring these cases
admissible it at least indicated that the refusal of a government to
execute a court judgment raises a problem under the Convention. As in
both cases a friendly settlement was effected, no decision on the
merits was taken.
I might have found a violation of Article 13 of the Convention
in the present case, had the authorities refused to execute the
decision of the Supreme Administrative Court. But this is not what
happened. The Supreme Administrative Court had decided that as
speedy action as possible should be taken to bring about Lisa's
transfer to her natural parents. The opinion of the authorities that
action is not yet possible does not necessarily conflict with this
judgment. In order to establish a real contempt of court a further
decision would be necessary holding that the transfer was indeed
possible. A blunt refusal to execute a court judgment cannot be
established. In this respect Article 13 has not been violated. For the
other aspects of Article 13 I share the position expressed in paras
259-262 of the Commission's Report.
Concurring opinion of Mrs. G.H. Thune
While sharing the opinion of the Commission I would like to
add the following:
The unfortunate development in this case is in my view a
result of the Swedish legislation. I would in particular question the
decision to lift the care order without considerations of the possible
effects on Lisa of a removal from the foster home. The lifting can be
said to have been based solely on an assessment of the home situation
of Cecilia Eriksson, to which objections no longer could be upheld.
The prohibition on removal must be seen as an attempt from the
Social authorities as well as the courts to remedy this. A child who
has been in care for more than 5 years cannot automatically be brought
back to the natural mother without careful consideration of the
possible effects of a removal as well as a specific plan if there is
to be reunification. This must in my view have been clear to the
Social authorities when they decided to lift the care order.
Accordingly, the lifting in itself did not result in any immediate
change as to the actual care of Lisa due to the concomitant
prohibition on removal. For the parties involved, however, the
situation was not unchanged. It obviously implied new expectations and
more anxiety as to Lisa's future care and thus increased the
difficulties they already were faced with.
A situation where the authorities with one hand open the door
for a return of the child and then with the other immediately close
it, cannot but increase the uncertainty and conflict between the
mother and the foster parents. Such a floating situation, where the
possibility of lifting the prohibition on removal depends on the
extent of the contact between the child and the mother can only
encourage a constant competition between her and the foster parents
as to actual access. The foster parents wanting to keep the child
would be expected to avoid access. No-one can foresee the outcome and
no-one can tell the child what is actually going to happen.
A degree of uncertainty is unavoidable where a child is taken
into care. But the way in which the care order was lifted as well as
the subsequent floating situation over a number of years, which the
authorities should have foreseen, imply in my view a disrespect for
the interests of Lisa. Her interests can never be served through
long-term uncertainty. One must expect that when the responsible
national authorities take decisions, these are based on thorough
assessment of all aspects that deserve consideration. And that,
once taken, such decisions are then implemented. The Swedish system,
as applied in this case, is in my view not satisfactory in this
respect and has added on extra burden on Lisa's shoulders which I
consider to be a violation of her right under the Convention.
Accordingly, it would be impossible to conclude that the
interference with the mother's right to respect for her family life
was necessary in the interest of the child.
Finally, I find it very surprising that under the Swedish
system a Social Council can in practice disregard and even obstruct
the judgment of the Supreme Administrative Court without resulting
sanction.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
__________________________________________________________________________
7 December 1984 Introduction of the application.
31 January 1985 Registration of the application.
Examination of the admissibility
16 May 1985 Commission's deliberations and decision to
invite the Government to submit observations
on the admissibility and merits of the
application.
5 September 1985 Government's observations.
25 October 1985 Applicants' observations in reply.
11 December 1985 Commission's further deliberations and
decision to invite the Government to
submit supplementary observations on the
admissibility and merits of the application.
12 February 1986 Government's further observations.
21 March 1986 Applicants' further observations.
5 March 1987 Commission's deliberations and decision to
invite the parties to a hearing on the
admissibility and merits of the application.
11 May 1987 Hearing on admissibility and merits. The
parties were represented as follows:
Government: MM. Hans Corell
Leif Lindgren
Carl-Henrik Ehrenkrona
Applicants: Mrs. Siv Westerberg
The first applicant was also
present.
Date Item
__________________________________________________________________________
11 May 1987 Decision to declare the application
admissible.
Examination of the merits
11 May 1987 Commission's deliberations on the merits.
12 June 1987 Applicants' letter containing observations on
the merits.
22 September 1987 Government's observations on the merits.
24 September 1987 Applicants' observations on the merits.
7 May 1988 Commission's consideration of the state of
proceedings.
5 July 1988 Commission's deliberations on the merits and
final votes.
14 July 1988 Adoption of the Report.
APPENDIX III
MEDICAL CERTIFICATES
The medical certificate dated 8 April 1981 reads inter alia as
follows.
"We have met Lisa and her foster parents on a couple of
occasions and can submit the following.
The foster parents tell us that Lisa has developed normally
since she came to them at the age of 14 days. Lisa takes
blood tests regularly as a result of the fact that there was
a suspicion that she had been contaminated by yellow
jaundice at the delivery. The tests have been without
adverse remarks. The foster parents also have natural
children, inter alia a boy Jimmy who is eight months younger
than Lisa. Lisa and Jimmy are very attached to one another
and the foster parents tell us that they cannot separate the
children. When they have tried to do so, both Lisa and
Jimmy become lost and long for one another all the time. -
When we have met Lisa together with the foster parents and
Jimmy she has, to start with, been reserved but after a
while she gives a diversified contact. She seems to be well
developed, having regard to her age, both physically and
psychologically. Lisa is secure together with her foster
parents and on the visits here (at the Clinic) she naturally
seeks both the foster father and the foster mother. - The
foster parents are Lisa's psychological parents. They are
the most important people in her life since they satisfy her
needs of physical care, love, security and stimulance.
There still remain important phases of development for Lisa
in her life. Children's psychological research has shown
that the first years impressions are of basic importance for
the person's personality development. During this period
continuity as regards caretaker and environment conditions
are incredibly essential. A disruption in these respects
always implies a regression in the child's development as well
as a risk that psychological problems arise which are
difficult to remedy. To separate Lisa from her foster
parents is to jeopardize a favourable result of her
intellectual, emotional and social development."
The medical certificate of 24 June 1982 states inter alia the
following.
"We have met the natural parents and the foster parents a
couple of times since January 1982 in order to improve the
contacts between them. However, our efforts to improve the
contact between the two couples have so far been without
much progress. The relation between them is still tense and
filled with conflicts. At the most recent meeting on 7 June
1982 Lisa was present at the wish of the natural parents.
Our immediate plans are now to visit the respective families
in their homes and thereafter, in August, to meet them again
here (at the Clinic) and that Lisa is also present then. We
can for the moment not take any position on how the natural
parents' access to Lisa should be designed in the future
but we request to be able to return to this later on."
The certifiate of 4 October 1982 is addressed to the County
Administrative Court and states inter alia the following.
" In order that the contact with the child shall function
without risk of harming the child it is an important
condition that the adults involved have a relation which is
somewhat free from agressions. With the aim of improving
the relations between the natural parents and the foster
parents we started our work by meeting them together four
times during the spring of 1982. Present at these meeting
was also the Social Welfare Officer Mrs. BE of Lidingö.
These meetings were mainly very emotionally sensitive and
were characterised by an agressive attitude. Both parent
couples brought out conflicts, misunderstandings and
disappointments which dated back many years. For instance
the natural mother is bitter towards the social authorities
because they took Lisa away from her and she is disappointed
that she has found that the foster parents keep her away
from Lisa. Both foster parents are upset over the fact that
they have perceived that the natural mother often lies and
on several occasions has threatened them. The tension was
as great on the forth as on the first meeting. On the fourth
meeting all of them agreed that a closer relationship
between the foster parents and the natural mother seemed to
be impossible. The natural father participated very little
in the discussions and the relation between him and the
foster parents seems to be less filled with conflicts. - In
the beginning of June and in the middle of August 1982 we
met Lisa with her natural parents and brother Jonas at our
Clinic at Halmstad together with the foster parents and the
foster brother Jimmy. - Before the first meeting the foster
mother called us and told us that Lisa did not want to go to
Halmstad, she did not wish to meet the mother. We agreed
that they would come anyway. During both visits here Lisa
seemed to be tense. Mostly she sticks to her foster parents
and is reserved in her contact with the others. The contact
between the parent couples is tense and we cannot see either
that the natural mother and the foster mother make contact
with one another. For the sake of the children the contact
is kept free from discussion on conflict filled subjects. -
At the end of August and beginning of September 1982 we
visited the respective homes and discussed the future
contact. The natural parents wanted to see Lisa in their
home and on 16 September Lisa visited them together with the
foster parents and Jimmy. The Social Welfare Officer Mrs.
BE and both of us were also present. This time Lisa was
more lively and more spontaneous than previously. She
played actively with Jimmy and talked freely to all of us.
On the visit to the natural parents the natural father was
notably in the background. The natural mother was
interested in Lisa but was not agressive in her contact with
the girl. It was agreed with the natural mother that she
would not be alone in one room with Lisa. However, this
happened on one occasion during the visit when both of them
disappeared up on the second floor. The natural mother
explained afterwards that she had forgotten about the
agreement since she had become so glad over the fact that
Lisa came to her and had asked to see the family's dog which
was on the second floor. - Our intention is now to meet
the parent couples separately here at the Clinic and
thereafter to make our final assessment on the question of
access. - It may appear that our work takes a long time. We
consider that it must do so since it is a question of
emotional processes both with Lisa and the two parent
couples. It can also be mentioned that four of our agreed
appointments for meetings have had to be changed as a result
of cancellations. The natural parents have been prevented on
three occasions and the foster parents on one. - As regards
the future contact between the natural parents and Lisa
there are the following elements to take into account. The
natural parents are still unknown to the girl. It is
therefore necessary that at least one of the foster parents
is present at the meetings. There is still a conflict
between the natural mother and the foster parents and at
present we look pessimistically on any solution of the
conflict. As a result of this conflict the atmosphere on
these occasions will be tense and unnatural and difficult
for all involved. It is unavoidable that Lisa will feel
this tension and react to it. If the contacts are too
frequent she will not have time to recover in between. As we
stated initially we are not ready with our opinion but our
position today is that the contact should not be more often
than once every second month. In order not to worsen the
above conflict it is necessary that an outsider is present
on the access occasion."
The medical certificate dated 6 December 1982 reads inter alia
as follows.
"In our statement to the County Administrative Court we
recommended access once every second month, a position
which we do not find reason to change. In its assessment of
3 November 1983 the County Administrative Court is doubtful
as to such an infrequent access. It considers that the
preparations for Lisa's removal should take place more
quickly. This time we have not been asked to state our
opinion as to the removal of Lisa. It is however not
possible to take a standpoint on the question of access
without at the same time clarifying where Lisa should live
in the future. It is understandable that the County
Administrative Court is doubtful as to such infrequent access
as once every second month since they take into account
their assessment that Lisa shall be moved to the natural
parents within a short period of time. It is also
understandable that the natural parents wish to take care of
the girl. We have during the whole period of investigation
focused on what is best for Lisa. As regards the best for
the children the adults' needs must come in second place.
Our assessment is that Lisa ought to stay in her foster
home. We have nothing to criticise as regards the
conditions in the natural parents' home. We are rather
impressed by the parents' ability to rehabilitate into
society. Our standpoint is built on another basis. It is
not justified to take children from their growing-up
environment unless it is obviously in bad conditions.
Lisa has no previous contact with her natural parents to
refer to which is of considerable importance. She has since
a couple of weeks of age been living in the foster home and
she has been attached to her foster parents and foster
siblings in the same way as if she had been a natural child
in the family. Lisa has herself not felt any difference.
In the foster home she has security and her basis in the
world. More frequent contacts with the natural parents
cannot change the fact that the foster parents are the most
important persons for Lisa in her life. It must not be
forgotten that Lisa is a human being, a small personality
and not a thing which we adults can move whenever we find it
suitable. The natural mother has for us several times
stressed the importance that children should grow up with
their natural parents. Obviously it is most fortunate if
that can happen, however, it does not apply without
exceptions. During the first years of a child's life there
is an interchange between children and parental persons.
Through the daily contacts between them strong emotional
bonds are created the importance of which are primary to the
development of a child. We refer to our previous opinions
on 8 April 1981 and 11 December 1981. A well functioning
access to the natural parents is somemthing we do not
oppose. On the contrary we see it as important that a child
has contact with her family of origin. In order that a
child should build up a full identity it is important that
it has contact with its origin. It is shown in particular
in the puberty when the problems of identity arise. As
regards the future access the following must be taken into
consideration. The natural parents are still unknown to
Lisa, therefore at least one of the foster parents must be
present at the meetings. Even if the atmosphere at the
latest meeting in the foster home was relatively good the
conflict between the natural parents and the foster parents
is still unsolved and prevents relaxed contact between them.
For all those concerned the contacts are difficult not least
for Lisa. If the contacts are too frequent she will not
have enough time to recover between them. Furthermore, it
is necessary that an outsider is present for some more time.
Taking all of this together and our opinion that Lisa should
remain in her family foster home constitutes the basis for
our standpoint that the access should be once every second
month. - In view of the above we firmly advise against a
removal of Lisa but recommend access once every second
month."
The medical certificate of 16 December 1982 is a supplement to
the certificate of 6 December 1982 with a request from the Social
District Council of the opinion of the implications of a removal of
Lisa from the foster home. The certificate reads inter alia as follows.
"Since Lisa has lived all her life in the foster home she is
strongly rooted there and has all her emotional bindings
there. Lisa is not yet five years old and does not have the
ability to understand that she should belong to another
family than to the one she lives with. This means that it
is not possible to prepare her for a removal. The
separation from parents and siblings at this age is the same
as the situation where a child looses its family through deaths.
The child thinks that it is abandoned and betrayed and may
in the future have great difficulties to rely on other
people. It is also normal that the child blames itself for
what has happened and there is a risk of future psychological
defects. The separation and loss of objects of identity (in
this case the foster parents) is the most difficult crisis
in a human being's life - a catastrophe. - Lisa's foster
mother has said that Lisa since the autumn of 1981 has
reacted with anxiety and regression after meetings with the
natural parents. The first week thereafter she has had
difficulty in going to sleep, has not wanted to sleep in her
own bed and on a couple of occasions has wet the bed after
having been dry since the age of one and a half years.
During the day time she has been less independent, followed
her foster mother and has not wanted to let her out of
sight. It is obvious that Lisa is a sensitive girl with
great sensitivity for attacks on her environment. It is
also noted on contact with her when she is for a long time
reserved. - As we all know Lisa has stayed in the foster
home since a couple of weeks of age. No real contact
between Lisa and her natural parents has been established.
She has no emotional bonds with them to refer to and she
considers them to be strangers. - Lisa's lengthy stay in
the foster home, her strong emotional bonds there, her
senstivity against changes in her environment, her age and
the lack of any emotional bonds with the natural parents
lead to the conclusion that a removal to the natural parents
would be dangerous and would imply a risk which is not of a
minor nature to her psychological health."
The medical certificate of 7 September 1983 is signed by the same
persons and was requested by the Social District Council following the first
applicant's request that the prohibition on removal should be quashed. The
certificate reads inter alia as follows.
"After our most recent certificate in December 1982 and
February 1983 there have been no changes which lead to a
change of the opinions we stated there. For our part it is
self-evident that Lisa must stay in the foster home. The
recent decades' research on children and psychology and
psychiatry has been comprehensive. It has shown that the
considerable importance of the child/parent binding for the
child and what it implies to break it up. A break-up of
this binding always means a psychological trauma to the
child. One of our tasks in the children's psychiatric clinic
is to take a standpoint on whether a child should be placed
in a foster home or not. In such cases the decisive element
is what is less damaging to the child, to stay in an
unsatisfactory environment or come to a new home. In Lisa's
case the question is another. She lives in a good home
environment which well satisfies her needs. It is thus here
not a question of moving Lisa in her own interest. - Our
assessment is still that a removal of Lisa would entail a
risk which is not of a minor nature to her psychological
health."