THE FACTS

The facts of the case, as submitted by the applicant, may be summarised

as follows:

The applicant is a Danish citizen, born in 1921 and resident in

Copenhagen. She is a book-keeper by training.

Her application concerns the actions taken by the competent Danish

authorities with regard to the four children born in her first

marriage. The children were born in 1955, 1956, 1957 and 1958

respectively. The applicant obtained a decree of judicial separation

from her first husband in 1963 and a final divorce in 1966. At the

separation the applicant was given custody of her children. She married

again in 1968.

As a consequence of the separation and, apparently, after the applicant

had applied for financial assistance for help to look after the

children, she was approached by the local Child and Youth Welfare Board

(börne- od ungdomsvarenet i K. kommune). In January 1964 the Board

appointed a child welfare officer (tilsynsvaerge) to supervise the

children.

The applicant has submitted a very detailed account of their home

conditions during the following years and her relations with the

officers of the Board and her former husband and the alleged

persecution she was subjected to. In particular, her former husband

repeatedly broke into her house and inflicted damage on the building

itself.

In November 1966 the District Medical Officer (kredslaegen) visited the

home at the request of the Board to investigate reports of alleged

neglect of the children. He did not, however, consider that there were

reasons to remove the children. In March 1967, the District Medical

Officer made a new inspection and reported that the house was dirty and

disorderly. He did not recommend that the children should be removed

for good but only provisionally in order to enable the house to be

cleaned and attended to.

On .. March 1967, the Board decided that, according to Section 28 (1)

(2) of the Child and Youth Welfare Act (lov om börne- og

ungdomsforsorg), the three youngest children should be placed outside

their home. No decision was taken with regard to the eldest child who

was a boarder at a school for word-blind children. The three youngest

children were put into the care of a farmer at H.

On .. August 1967, the Board ordered that the children should be

returned to their mother on probation.

On .. July 1969, the Board decided, with the consent of the mother,

that all the children should be examined by a child psychiatrist. The

resulting report recommended that the three youngest children should

be taken into care outside their home for a longer period. The eldest

child should be allowed to continue her school education despite the

mother's objection.

On .. August 1969 the Board ordered that all the children should be

taken in charge outside their home with a view to placing the eldest

daughter in a school and the other three in an institution for child

care. After having been separated accordingly, all the children were,

from .. July 1970, placed in an institution for child care in M. A

psychiatrist's report in May 1970 stated that one of the children (born

in 1956), who had shown signs of psychiatric problems, was in need of

care in an institution with small groups where a man was in charge.

This was said to be more important than keeping all the four children

together.

The applicant appealed against the Board's decision of .. August 1970

which was upheld by the National Board (Landsnaevnet) on .. January

1969. The applicant then requested that the case should be referred to

the High Court for Eastern Denmark (Östre Landsret) for a decision. In

its judgment of .. September 1970 the Court recorded that the Head of

the institution where the children were placed had stated that all of

them were out of balance and need a period of rest and security. The

Court also noted that the mother had given evidence to the effect that

she had by then been forced to leave her former house, was living in

a two-room apartment and had refused to give more detailed information

concerning her living conditions. She was unable to work because of a

wrist injury.

The Court held that it was necessary, in order to protect the interests

of the children, that all four of them should be taken in charge for

care outside their own home since the conditions there were such that

their bodily and mental health and development was likely to be

endangered. The removal of the children from their home was therefore

in accordance with the law (1).

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

(1)  According to Section 59 of the Child and Youth Welfare Act an

appeal lies to the Supreme Court (Höjesteret) where exceptionally leave

to such appeal has been granted by the Minister of Justice.

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

It appears that the applicant and her present husband visited the

children regularly after they had been brought to the child care

institution in August 1969.

In January 1970 the applicant was allegedly refused permission to visit

the children and she was told that she would be reported to the police

if she tried to see them or find out where they were. According to her,

she only learned about their whereabouts at the hearing in the High

Court on .. September 1970. In a letter dated .. February 1972 the

applicant emphasised that by then more than two years had passed since

she last saw her children or received a word from them.

The applicant has not invoked any specific Article of the Convention

but indicated that her application concerns the "kidnapping" of her

four children and refusal of permission to see the children since

January 1970.

THE LAW

1.   The applicant has complained that she has been deprived of the

care of her four minor children and that she has been refused all

access to the children since January 1970. In examining these

complaints the Commission has had regard to Article 8 (1) (Art. 8-1)

of the Convention which provides, inter alia, that everyone has the

right to respect for his family life.

2.   The Commission has first considered the applicant's complaint

concerning the decision to place the children in care outside their own

home. It appears that the final decision with regard to this complaint

was taken by the High Court (for Eastern Denmark) on .. September 1970

and that the applicant did not apply to the Minister of Justice for

leave to appeal to the Supreme Court against that decision. Section 59

of the Child and Youth Welfare Act which governs such appeal provides

that leave to appeal may only be granted in exceptional circumstances.

The question therefore arises whether the applicant has complied with

Article 26 (Art. 26) of the Convention which provides that the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law. In this connection the Commission recalls that it

has frequently stated that Article 26 (Art. 26) only imposes an

obligation on an applicant to exhaust domestic remedies which can be

considered "sufficient and effective". However, the Commission does not

find it necessary to determine whether or not an application for leave

to appeal would, in the circumstances of the present case, have

constituted such a sufficient and effective remedy for the purposes of

Article 26 (Art. 26), since the Commission finds that this complaint

is, in any event, inadmissible on other grounds.

It is true that paragraph (1) of Article 8 (Art. 8-1) recognises, in

general, everyone's right to respect for his family life, but paragraph

(2) of this Article (Art. 8-2) provides that "there shall be no

interference by a public authority with this right except such as is

in accordance with the law in a democratic society ... for the

protection of health and morals ...".

The decision to remove the children from the applicant's home

constitutes unquestionably an interference with her right to respect

for her family life under Article 8 (1) (Art. 8-1).

However, this decision was "in accordance with the law" as it was

provided for in Section 28 paragraph 1 (2) of the Child and Youth

Welfare Act. Furthermore, the High Court considered that it was

necessary to place the children in care outside their home in the

interest of their welfare and based this conclusion on recommendations

by psychiatrists and child welfare officers.

The Commission finds that this decision was reasonable in the

circumstances and that the consequent interference with the applicant's

family life therefore falls under Article 8 (2) (Art. 8-2) of the

Convention as a necessary measure for the protection of the "health an

morals" of the children. In this connection, the Commission refers,

mutatis mutandis, to its decisions on the admissibility of applications

nos. 2822/66, Yearbook, Vol. 11, pp. 406, 410 and No. 4396/70,

Collection of Decisions, Vol. 36, pp. 88, 89.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention.

3.   The Commission has next examined the applicant's complaint that

she has been refused all access to the children since January 1970. The

Commission finds that an examination of the file at the present stage

does not, on certain points, give the information required for

determining the question of admissibility of this part of the

application. The Commission therefore decides, in accordance with Rule

45, 3 (b), of its Rules of Procedure, to give notice of this part of

the application to the respondent Government and to invite the

Government to submit its observations in writing on the question of

admissibility.

In the meanwhile the Commission adjourns its further examination of

this complaint.

For these reasons the Commission

1. Declares inadmissible the applicant's complaint relating to the

decision to place her children in care outside their home;

2. Adjourns its examination as to the admissibility of the applicant's

complaint concerning the alleged refusal of all access to her children

since January 1970.