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AS TO THE ADMISSIBILITY OF

Application No. 36332/97

by Jan ENGLUND

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 May 1997 by

Jan ENGLUND against Sweden and registered on 4 June 1997 under file

No. 36332/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish citizen born in 1956 and resident in

Norsborg, is a student. Before the Commission he is represented by

Mr Lennart Hane, a lawyer practising in Stockholm.

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

summarised as follows.

a. The particular circumstances of the case

The applicant has a daughter M., born on 24 August 1990, of whom

the mother, T.R., has sole custody. The applicant has regular access

to M.

On 11 September 1996 the chairman of the Social District Council

(kommundelsnämnden) of Sjödalen-Fullersta, ("the Council") decided

pursuant to Section 6 of the Act with Special Provisions on the Care

of Young Persons (Lagen med särskilda bestämmelser om vård av unga;

1990:52 - hereinafter "the 1990 Act"), to take M. into public care

immediately on a provisional basis. On 20 September 1996 the County

Administrative Court (länsrätten) of the County of Stockholm confirmed

the Council's decision. The Council later applied to the court for a

care order concerning the daughter under Section 1, subsection 2 and

Section 2 of the 1990 Act.

Allegedly, the applicant was given no information as to the basis

for the Council's provisional decision and its application for a care

order.

On 21 October 1996 the County Administrative Court held an oral

hearing in the case, at which T.R., her lawyer, the child's counsel,

representatives of the Council and the Council's lawyer were present

and heard. Three witnesses were heard at the hearing. Also the

applicant, who was not a party to the proceedings, appeared and

declared that he wished to attend the hearing. After asking the

parties, the court rejected the applicant's request.

By judgment of 25 October 1996, the County Administrative Court

granted the Council's application and ordered that M. be taken into

public care.

T.R. applied to the Administrative Court of Appeal (kammarrätten)

of Stockholm. The applicant requested to be heard at the hearing. By

letter of 20 November 1996, the court informed the applicant that he

was not a party to the case and therefore could not demand to be heard

at the hearing.

After having held a hearing on 27 November 1996, without the

applicant being present, the appellate court, by judgment of

9 December 1996, quashed the first-instance judgment, finding that the

compulsory care of the child was not supported by sufficient reasons.

It appears that, in simultaneous proceedings before the District

Court (tingsrätten) of Huddinge, the applicant had applied for custody

of M. Later, he adjusted his claim to concern only access to the

daughter.

b. Relevant domestic law and practice

Section 1, subsection 2 and Section 2 of the 1990 Act state that

compulsory care is to be provided if there is a clear risk of

impairment of the health and development of a person under 18 years of

age due to ill-treatment, exploitation, lack of care or any other

condition in the home and if the necessary care cannot be provided with

the consent of the young person's custodian.

The rights over a child are vested with the custodian pursuant

to Chapter 6, Section 2 of the Parental Code (föräldrabalken). A parent

who does not have custody of a child has no standing in proceedings

concerning public care of the child (cf., e.g., Supreme Administrative

Court judgment of 15 February 1972, RÃ… 1972 S 32).

COMPLAINTS

The applicant complains that his rights as a parent were violated

in the public care proceedings. He states that he had no access to the

documents in the case, that he had no standing in the proceedings and

that he was not heard by the courts. He does not invoke any Articles

of the Convention.

THE LAW

The applicant complains that his rights as a parent were violated

in the public care proceedings.

The Commission finds that the applicant's complaint raises an

issue under Article 8 (Art. 8) of the Convention which provides the

following:

"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 and morals, or for the protection of the rights and

freedoms of others."

The Commission recalls that family life does not require that the

members of the family live together where there exist regular contacts

and a certain dependency (cf. No. 14501/89, Dec. 6.1.92, D.R. 72,

p. 118). Furthermore, the mutual enjoyment by parent and child of each

other's company constitutes a fundamental element of family life even

when the relationship between the parents has broken down (Eur. Court

HR, Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156,

para. 58). The Commission finds that the relationship between the

applicant and his daughter falls within the concept of "family life"

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

Therefore, it must be considered whether there has been any

interference with the applicant's right to respect for his family life.

In this connection, the Commission notes that the applicant's

family life consists of regular access to his daughter. If a parent is

denied access to a child taken into public care there would be an

interference with the parent's right to respect for family life as

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

present case, however, the decisions of the Council and the County

Administrative Court to take the applicant's daughter into public care

did not deny the applicant his access to M. Moreover, the applicant

does not allege that the decisions restricted that access. Thus, it

appears that the applicant's family life was not affected by the

decisions in question. The Commission finds, therefore, that the

applicant's family life has not been interfered with within the meaning

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

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

The Commission considers that the applicant's complaint falls to

be considered also under Article 6 para. 1 (Art. 6-1) of the Convention

which, in so far as relevant, provides as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing by [a] ...

tribunal ..."

The Commission recalls that in order for Article 6 para. 1

(Art. 6-1) to apply to the proceedings in question it must first be

ascertained whether there was a dispute over a "right" which can be

said, at least on arguable grounds, to be recognised under domestic law

(cf., e.g., Eur. Court HR, W. v. the United Kingdom judgment of 8 July

1987, Series A no. 121-A, p. 32-33, para. 73).

The applicant has a right of access to his daughter. However, the

Council's and the County Administrative Court's decisions did not

involve an examination of that right. Moreover, not being the custodian

of his daughter, the applicant has no standing, under Swedish law, in

proceedings concerning public care. Consequently, his civil rights were

not determined in the proceedings in question and Article 6 para. 1

(Art. 6-1) of the Convention does not apply in the present case.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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ENGLUND v. SWEDEN

ENGLUND v. SWEDEN

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