Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26076/94

by Tuula TIID

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 1996, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 13 October 1994

by Tuula TIID against Sweden and registered on 21 December 1994 under

file No. 26076/94;

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 1960, is a tram driver.

She resides at Gothenburg.

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

summarised as follows.

On 7 December 1993 the Social District Council (Stadsdelsnämnden;

hereafter "the Council") of Bergsjön, Gothenburg, 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),

immediately to take the applicant's children, A-L, born in 1981, and

M, born in 1984, into public care on a provisional basis. The children

were the same day placed at a children's home at Kungälv, in the

vicinity of Gothenburg.

The Council's decision was later brought before the County

Administrative Court (Länsrätten) at Gothenburg, which appointed

counsel for the applicant and her husband - the children's father - as

well as for the children. On 20 December 1993 the Court confirmed the

Council's decision.

The Council later applied to the Court for a care order

concerning the children under Section 1, subsection 2 and Section 2 of

the above-mentioned Act. These provisions 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 County Administrative Court held a hearing at which the

parents, their counsel, the children's counsel, representatives of the

Council and a social expert (socialkonsulent) from the County

Administrative Board (Länsstyrelsen) were heard. The Court also heard

a witness requested by the parents. It further heard the chief

physician who had conducted a psychiatric examination of the children.

Moreover, the Court had at its disposal the Council's investigation of

the case, which contained statements by teachers, the children's

contact family (kontaktfamilj), a Children's Psychiatric Clinic and a

Child Welfare Centre.

The Council stated, inter alia, that it had been noted at the

children's school that they had great problems in their relationships

with other people and serious learning difficulties. Allegedly, the

applicant had ill-treated the children. There were also suspicions of

incest in the family, although the police investigation had been

closed. The parents had, on several occasions, been offered assistance

by the social authorities, but had declined. Allegedly, it was not

possible to come to any agreements with the parents.

The parents maintained, inter alia, that it was better for the

children to live with them than at the children's home. The children

needed help with their homework, but required no further support. The

parents were, however, willing to accept certain forms of assistance

from the social authorities. They contested that any ill-treatment or

incest had occurred in their home.

The children's counsel and the social expert supported the

Council's application. The chief physician stated that the parents were

unable to understand their children's problems. He considered that the

care proposed by the Council satisfied the needs of the whole family,

especially the children's special needs.

By judgment of 15 February 1994, the County Administrative Court

granted the application and ordered that the children be taken into

public care. The Court considered that the children needed extensive

support which the parents could not provide, as they lacked the

necessary ability and understanding. The Court further found that the

children had already been harmed by the insufficient care provided by

their parents and noted that the parents had not consented to the care

proposed by the Council.

The parents appealed to the Administrative Court of Appeal

(Kammarrätten) of Gothenburg. The appellate court held a hearing and

heard the same persons as the County Administrative Court except for

the social expert and the witness. In addition to what they had

previously stated, the parents agreed that the children were in need

of extensive supportive measures. They maintained, however, that the

children should live at home with their parents. The chief physician

stated, inter alia, that the children had developed favourably at the

children's home and that this confirmed the appropriateness of placing

them there.

On 28 April 1994 the Administrative Court of Appeal, agreeing

with the findings of the County Administrative Court, rejected the

appeal.

On 26 July 1994 the Supreme Administrative Court (Regerings-

rätten) refused leave to appeal.

COMPLAINTS

The applicant complains of the public care of her children. She

does not invoke any Articles of the Convention.

THE LAW

The applicant's complaint concerns the public care of her

children. The Commission considers that it falls to be considered under

Article 8 (Art. 8) of the Convention, which 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 and morals, or for the protection of the rights and

freedoms of others."

The applicant maintains that she and her husband are able to take

care of their children and that the children want to come home. She

states that since 1 February 1995 the children are placed in separate

families. The parents are allowed to visit them twice a month and phone

them twice a week.

The Commission finds that the taking into public care of the

applicant's children interfered with her right to respect for her

family life as ensured by Article 8 para. 1 (Art. 8-1) of the

Convention. It must therefore be examined whether this interference was

justified under the terms of Article 8 para. 2 (Art. 8-2). In this

respect, the Commission recalls that three conditions must be

satisfied: the interference must be "in accordance with the law", it

must pursue one or more of the legitimate aims enumerated in para. 2

and it must be "necessary in a democratic society" for that or those

aims.

As regards the first condition, the Commission finds that the

relevant decisions were in conformity with Swedish law, namely

Section 1, subsection 2 and Section 2 of the Act with Special

Provisions on the Care of Young Persons.

The Commission further finds that the interference had a

legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests

of the children, which in this case fall under the expressions "for the

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

and freedoms of others".

It thus remains to be determined whether the interference was

"necessary in a democratic society" in the interests of the children.

According to the established case-law of the Commission and the

European Court of Human Rights, the notion of necessity implies that

the interference corresponds to a pressing social need and, in

particular, that it is proportionate to the legitimate aim pursued. In

determining whether an interference is "necessary in a democratic

society", the Commission furthermore has to take into account that a

margin of appreciation is left to the Contracting States. However, the

Commission's review is not limited to ascertaining whether the

respondent State has exercised its discretion reasonably, carefully and

in good faith. Furthermore, it cannot confine itself to considering the

relevant decisions in isolation but must look at them in the light of

the case as a whole. It must determine whether the reasons adduced to

justify the interference at issue are "relevant and sufficient"

(cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A

no. 130, pp. 31-32, paras. 67-68).

In the present case, the Commission recalls that the County

Administrative Court, in its judgment of 15 February 1994, found that

the children needed extensive support which their parents could not

provide, as they lacked the necessary ability and understanding, and

that the children had already been harmed by the insufficient care

provided by the parents.

The Commission further recalls that the County Administrative

Court and the Administrative Court of Appeal, before giving their

judgments, had held hearings at which the parents, their counsel, the

children's counsel, representatives of the Council, a social expert and

the chief physician who had examined the children had been heard. In

addition, the courts had regard to written submissions. Thus, the

courts cannot be said to have intervened without adequate knowledge of

the case.

In the light of the foregoing the Commission finds that the

taking into care of the children was supported by relevant and

sufficient reasons and that, having regard to their margin of

appreciation, the Swedish authorities were reasonably entitled to think

that it was necessary to take the children into care. Accordingly, the

Commission concludes that the relevant decisions can reasonably be

regarded as "necessary in a democratic society" within the meaning of

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

It follows that 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 THE APPLICATION INADMISSIBLE.

Secretary Acting President

to the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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TIID v. SWEDEN

TIID v. SWEDEN

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