Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24484/94

by Per SÖDERBÄCK

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 17 December 1991

by Per SÖDERBÄCK against Sweden and registered on 28 June 1994 under

file No. 24484/94;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 5 March 1996 and the observations in reply submitted by

the applicant on 29 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish citizen born in 1957 and residing in

Stigtomta, is a bus driver. Before the Commission he is represented

by Mr. Roger Lindh, a law student residing in Haninge.

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

summarised as follows.

A. Particular circumstances of the case

The applicant met K.W. in 1980. They were friends but did not

have a steady relationship. On 19 September 1982 K.W. gave birth to

a daughter, M, of whom the applicant was the father. The applicant

visited K.W. and the child at the maternity ward on one occasion. He

further met M at K.W.'s home a couple of times during the following

months. He also attended M's christening. During the spring of 1983,

the applicant once looked after M for about an hour. No further

contacts took place between him and M in 1983, as K.W. claimed that he

was not sober and therefore found it inappropriate that they meet.

In 1983 K.W. met M.W., whom she and M moved in with in May 1983.

K.W. and M.W. married in January 1989.

In 1984 the applicant met A.H., who had a two year old son. They

moved in with each other in January 1985.

The applicant met his daughter once in 1984. He further saw her

from time to time between 1984 and 1986 when he and A.H. took A.H.'s

son to his childminder, who lived close to M's childminder. The

applicant further met M in June 1986 when she attended A.H.'s son's

birthday party.

As, allegedly, K.W. refused the applicant access to M, the

applicant, in June 1987, contacted the social authorities in Nyköping

and asked for help in bringing about meetings between him and M. The

applicant and K.W. met at the social welfare office once in November

1987 to discuss the matter. K.W. expressed that she did not want the

applicant to have access to his daughter yet. The responsible social

worker had some further contacts with the applicant and K.W. separately

in 1988, but no meetings took place between the applicant and M.

In November 1988, M.W. applied to the District Court

(tingsrätten) of Nyköping for permission to adopt M. The applicant did

not consent to the adoption. In February 1989, he instead instituted

access proceedings against K.W. in the District Court. The court

requested the opinion of the Social Council (socialnämnden) of Nyköping

and adjourned the question of access pending the outcome of the

adoption proceedings.

The Council made an investigation during which it heard the

applicant, K.W. and M.W. In an opinion of 31 October 1989, the Council

concluded that an adoption was not in the child's best interests. It

considered that the applicant's relationship with A.H. and her son was

stable and noted, inter alia, that the applicant was permanently

employed as a bus driver since November 1987. Further noting that M

did not know that M.W. was not her natural father and that K.W. and

M.W. did not intend to inform her until she got older, the Council made

the following conclusions:

(Translation)

"The investigators are of the opinion that [M], like all

children, has a right to know her descent. It is also

important that she is informed as early as possible. Thus,

we do not share [K.W.'s] and [M.W.'s] opinion that it is

better for [M] to wait. On the contrary, we believe that,

in all probability, it will be a traumatic experience for

[M] to be told, in her teens or as an adult, that [M.W.] is

not her natural father. We also consider that [M] has a

right to get to know her father and his family. We do not

share [K.W.'s] and [M.W.'s] fears that [M] would become

distant from [M.W.], although it would be natural for her

to react in one way or another. However, we are of the

opinion that it could be beneficial for [M] to get to know

her father and his family. Her feeling of belonging to

[M.W.] does not, for that reason, have to be changed and

[M.W.] will probably always be [M's] psychological father."

The District Court held a hearing on 12 December 1989 during

which it heard the applicant and M.W. By decision of 22 December 1989,

the court granted M.W. permission to adopt M. The decision was taken

in accordance with Chapter 4, Section 6 of the Parental Code

(Föräldrabalken). The court gave the following reasons:

(Translation)

"The investigation in the case shows that [M] since birth

has lived with [K.W.] and that [M.W.] has taken part in the

care of [M] since she was eight months old. According to

the information received, [M] sees [M.W.] as her father.

[The applicant] appears to have met [M] occasionally in the

beginning, but access has thereafter practically ceased.

In these circumstances, M cannot be considered to have such

a need of contact with [the applicant] that it should be an

impediment to adoption.

For these reasons and as, moreover, the adoption must be

considered to be in her best interests, the application

shall be granted."

On 5 February 1991 the Svea Court of Appeal (Svea hovrätt) upheld

the District Court's decision. On 19 June 1991 the Supreme Court

(Högsta domstolen) refused leave to appeal.

B. Relevant domestic law

General provisions on custody and access are found in Chapter 6

of the Parental Code. Section 3 provides that, from birth, the custody

of a child rests with the child's parents, if they are married, or its

mother, if the parents are not married. According to Section 4,

unmarried parents may obtain joint custody on application.

Under Chapter 6, Section 15, the child's custodian shall see to

it that the child's need of access to, inter alia, a parent who does

not have custody is satisfied to the largest possible extent. If the

custodian objects to the access requested by a parent who does not have

custody, the courts shall, on an action brought by the latter parent,

determine the question of access in keeping with the child's best

interests.

General provisions on adoption appear in Chapter 4 of the

Parental Code. Section 3 provides that a spouse may, with the consent

of the other spouse, adopt the other spouse's child. According to

Section 5 a, a child who has not attained the age of 18 may not be

adopted without the consent of its parents. The consent of a parent

who does not have custody of the child is not required, however.

Under Chapter 4, Section 6, the courts shall examine whether it

is appropriate for the adoption to take place. Permission is given

only if the adoption is to the advantage of the child and the

prospective adopter has brought up the child or intends to do so or

there are special reasons for the adoption in view of the special

relationship between the adopter and the child. Section 10 stipulates,

inter alia, that, if the child to be adopted is below the age of 18,

the courts shall obtain the opinion of the Social Councils of the

municipalities where the adopter and the custodian are registered.

Furthermore, a parent whose consent is not required, i.e. a parent who

does not have custody of the child, shall be heard, if possible.

COMPLAINTS

1. The applicant contends that the decisions to allow the adoption

of his daughter without his consent violated his right to respect for

his family life under Article 8 of the Convention.

2. The applicant further claims that he was denied his rights under

Article 6 of the Convention, as the District Court and the Court of

Appeal allegedly violated the Swedish Constitution.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 December 1991 and registered

on 28 June 1994.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para.

2 (b) of the Rules of Procedure. The Government were requested to deal

in particular with the complaint submitted under Article 8 of the

Convention.

The Government's written observations were submitted on 5 March

1996. The applicant replied on 29 April 1996.

THE LAW

1. The applicant contends that the decisions to allow the adoption

of his daughter without his consent violated 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 respondent Government submit that they do not object to the

complaint under Article 8 (Art. 8) of the Convention being declared

admissible. As regards the merits of the complaint, the Government

hold, however, that no violation of that Article has occurred in the

present case. In this respect, the Government first state that the

question could be raised whether the relation between the applicant and

his daughter amounted to family life within the meaning of Article 8

(Art. 8). Should the adoption be considered as an interference with

the applicant's right to respect for his family life under para. 1 of

that Article, the Government maintain that it was in accordance with

the provisions of the Parental Code and pursued the legitimate aim of

protecting the interests and welfare of the child. As regards the

question whether the adoption was "necessary in a democratic society",

the Government contend that the decision in question falls within the

margin of appreciation left to the Contracting States under Article 8

(Art. 8). The courts had a choice between making a well established,

safe and secure family situation permanent or risking this situation

by giving the child the possibility of establishing contacts with the

natural father of whose existence the child was not aware. It is of

importance that the District Court's decision was taken after it had

heard the applicant and the adopter. In the Government's view, the

courts had the child's best interests as their primary consideration

and were entitled to think that the adoption was necessary in order to

safeguard those interests.

The applicant submits that he tried to establish good contacts

with his daughter. His efforts were, however, constantly frustrated

by the child's mother. The Social Council of Nyköping, which conducted

the only investigation in the case, found that the adoption was not in

the child's best interests. In these circumstances, the decision to

allow the adoption violated his right to respect for his family life

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

The Commission considers, after a preliminary examination of this

complaint in the light of the parties' submissions, that it raises

questions of fact and law which require an examination of the merits.

This part of the application cannot, therefore, be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for

inadmissibility have been established.

2. The applicant further claims that he was denied his rights under

Article 6 (Art. 6) of the Convention, as the District Court and the

Court of Appeal allegedly violated the Swedish Constitution.

Article 6 (Art. 6) reads, in so far as relevant, as follows:

"1. In the determination of his civil rights ..., everyone

is entitled to a fair ... hearing ..."

The Commission, recalling that its only task is to ensure the

observance of the obligations undertaken by the Parties to the

Convention and that, in particular, it is not competent to deal with

a complaint concerning errors of law and fact allegedly committed by

domestic courts (cf. No. 21283/93, Tyler v. the United Kingdom, Dec.

5.4.94, D.R. 77 pp. 81, 88), finds that an examination of the

applicant's submissions in respect of the present complaint fail to

disclose any violation of his rights under Article 6 (Art. 6) 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.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE without prejudging the merits of the case,

the applicants' complaint that the decision to allow the adoption

of his daughter without his consent violated his right to respect

for his family life;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SÖDERBÄCK v. SWEDEN

SÖDERBÄCK v. SWEDEN

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