Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26259/95

by Kerstin WOLLMAR and Others

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 19 September 1994

by Kerstin Wollmar and Others against Sweden and registered on

20 January 1995 under file No. 26259/95;

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 first applicant is a teacher born in 1943 and residing at

Falköping. The other applicants are her son K, a cook born in 1967 and

residing at Tidaholm, and her daughters A, a student born in 1973 and

residing at Falköping, and D, born in 1982 and presently residing at

Skara. They are all Swedish citizens.

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

summarised as follows.

On 18 November 1991 the first applicant attended a school

conference at Tidaholm, where she was living at the time.

The same day, the Social Council (Socialnämnden) of Tidaholm

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 D into public care on a provisional

basis. She was placed at the Children's Psychiatric Clinic (Barn- och

ungdomspsykiatriska enheten) at Skövde. The Social Council's decision

was put before the County Administrative Court (Länsrätten) of the

County of Skaraborg which, on 22 November 1991, set aside the decision,

finding that it was not supported by sufficient reasons.

On 23 November 1991 the first applicant came to the clinic to

take her daughter home. This was allegedly refused by the personnel.

Instead, the first applicant was put under sedation and taken into

compulsory psychiatric care pursuant to the Act on Institutional

Psychiatric Care in Certain Cases (Lagen om beredande av sluten

psykiatrisk vård i vissa fall, 1966:293).

On 28 November 1991 the Social Council again decided

provisionally to take D into care. This decision was confirmed by the

County Administrative Court on 2 December. She was placed at a

children's home at Skara.

The Social Council later applied to the Court for a care order

concerning D 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.

After having held a hearing in the case, the Court, by judgment

of 11 February 1992, granted the application and ordered that D be

taken into public care. It considered that her development was delayed

and that she was in need of special assistance. It further found that

it had for many years been impossible to give D the necessary

assistance due to her mother's conflicts with the personnel at D's day-

care centre and school, social welfare officers and medical services

personnel. The Court also took into account that the first applicant

had been in bad health for some time and was undergoing psychiatric

treatment. It concluded that there was a clear risk of impairment of

D's development due to insufficient care.

The first applicant later requested that the public care be

terminated. Her request was rejected by the Social Council on 13 August

1992. She appealed to the County Administrative Court.

After another hearing, the Court, on 3 September 1992, decided

that D should remain in care. It reiterated that D was in need of

special assistance and paid particular attention to the testimony of

the chief physician at the psychiatric clinic where the first applicant

had been treated until 1 June 1992, from 5 February on a voluntary

basis. The physician had stated before the Court that the first

applicant suffered from a personality disorder and was in need of

psychotherapy for five or ten years. As she did not accept the help she

had been offered for herself and D, the physician found that she was

not able to take care of her daughter.

No appeals were made against the judgments of 11 February and

3 September 1992.

A further request for termination of the public care of D was

rejected by the Social Council on 4 March 1993. Following the first

applicant's appeal against this decision, the County Administrative

Court held a further hearing, during which it heard the first applicant

and her counsel, D's counsel, representatives of the Social Council and

an employee at the children's home. It also heard B.H., a psychologist

who, after having met the first applicant and D on several occasions,

concluded that D had a learning disability and a disturbed development

and that it was too early to say whether the public care could be

terminated.

The Court also had at its disposal two medical certificates

issued by M.H., a chief physician specialising in psychiatry who had

treated the first applicant in December 1991 and since 1 October 1992.

In the first certificate dated 25 February 1993, M.H. stated that the

first applicant was recovering and that there were no obstacles to

returning D to her. However, according to the later certificate dated

10 June 1993, she had been under institutional care during the period

9 March - 4 June 1993 as she was suffering from an affected psychosis

in a manic phase and a personality disorder of a borderline nature. She

would be in need of medication and conversational therapy for a long

period of time and was, according to M.H., not wholly capable of having

the full responsibility for her daughter.

By judgment of 16 November 1993, the Court rejected the appeal.

It found that D had developed favourably at the children's home and

that the first applicant had recovered enough to be discharged from

psychiatric care and resume work. It noted, however, their continued

problems and concluded that the first applicant was not yet able to

take care of her daughter.

The first applicant appealed to the Administrative Court of

Appeal (Kammarrätten) of Jönköping. It held a hearing and heard the

same persons as the County Administrative Court. It also heard M.H.,

who found that it was not possible for D to move back home as her

mother's health was not stable enough. B.H. stated that there was a

risk that D would not be sufficiently cared for if the public care was

terminated.

On 10 February 1994 the appellate court, reaching the same

conclusions as the County Administrative Court, rejected the appeal.

On 14 April 1994 the Supreme Administrative Court (Regerings-

rätten) refused leave to appeal.

The applicants allege that the Social Council has subsequently

decided to refuse the first applicant access to D and to reject a

further request for termination of care. Apparently, these cases are

pending before the County Administrative Court. The applicants further

allege that, according to a decision taken by an employee at the

children's home, the first applicant is not allowed to talk to D on the

phone.

COMPLAINTS

1. Invoking Article 8 of the Convention, the applicants complain of

the public care of D and the restrictions on access.

2. K and A complain, under Article 6 of the Convention, that they

have not been able to bring before a court the questions of the public

care of D and their access to D.

3. The first applicant contends that the real reason for taking her

daughter into care on 18 November 1991 was to prevent her from

presenting, at the school conference she was attending the same day,

certain ideas which were apparently disliked by the school authorities

at Tidaholm. In this respect, she invokes Article 10 of the Convention.

4. The first applicant complains, under Articles 3 and 5 of the

Convention, that she was put under sedation and taken into compulsory

psychiatric care on 23 November 1991 without being mentally ill.

Moreover, being under sedation, she was allegedly prevented from

appealing against the decision to take her into care in violation of

Article 6 of the Convention. In this connection, all applicants further

complain, under Article 8 of the Convention, that the first applicant

was separated from her family.

5. The first applicant further complains on her own behalf and on

behalf of D that, on 23 November 1991, the personnel at the Children's

Psychiatric Clinic refused to let her take her daughter home. She

claims that she could not appeal against this refusal and invokes

Articles 6 and 13 of the Convention.

6. The first applicant maintains that she is not allowed to talk to

D on the phone according to a decision of an employee at the children's

home. Allegedly, there is no possibility to appeal against this

decision. She claims that this constitutes violations of her rights

under Articles 6, 8, 10 and 13 of the Convention and D's rights under

Articles 6, 10 and 13.

THE LAW

1. The applicants complain of the public care of D and the

restrictions on access. They invoke 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 Commission first recalls that, pursuant to Article 26

(Art. 26) of the Convention, it "may only deal with the matter after

all domestic remedies have been exhausted". No appeals were made

against the County Administrative Court's judgments of 11 February and

3 September 1992. The Social Council's decision on access, taken

subsequent to the Supreme Administrative Court's decision of 14 April

1994, is apparently pending before the County Administrative Court.

Thus, the Commission may only examine the Social Council's decision of

4 March 1993 not to terminate the public care of D and the subsequent

court judgments.

The Commission finds that the refusal to terminate the care of

D interfered with the applicants' right to respect for their 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 D, 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 D.

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 and the Administrative Court of Appeal, in their

respective judgments of 16 November 1993 and 10 February 1994, found

that, due to the first applicant's and D's continued problems, the

first applicant was not yet able to take care of her daughter. The

Commission also notes the statements made before the appellate court

by M.H. and B.H., according to whom D could not return home as the

first applicant's health was not stable enough and as there was a risk

that D would not get sufficient care.

The Commission further recalls that the County Administrative

Court and the Administrative Court of Appeal, before giving their

judgments, had held hearings at which they heard, in addition to M.H.

and B.H., the first applicant and her counsel, D's counsel,

representatives of the Social Council and an employee at the children's

home. 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

refusal to terminate the care of D was supported by relevant and

sufficient reasons and that, having regard to their margin of

appreciation, the Swedish authorities were entitled to think that it

was necessary for D to remain in 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 this part of the application is manifestly ill-

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

Convention.

2. K and A complain about lack of access to court as regards the

questions of the public care of D and their access to D. They invoke

Article 6 (Art. 6) of the Convention, which in its relevant parts reads

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 H.R., W v. the United Kingdom judgment of

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

The Commission further recalls that, under Swedish law, the

rights over a child, including the right to bring legal proceedings on

behalf of the child, are normally vested in its parents or custodians.

Moreover, siblings have no right under the law to have access to each

other (cf. No. 21827/93, Eriksson and Alanko v. Sweden, Dec. 30.11.94,

unpublished). K and A are not custodians of D. Thus, they cannot claim

on any arguable ground that they have a right under domestic law.

Article 6 (Art. 6) therefore does not apply to the present complaint

(cf. No. 12763/87, Lawlor v. the United Kingdom, Dec. 14.7.88,

D.R. 57 p. 216).

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.

3. The first applicant contends, under Article 10 (Art. 10) of the

Convention, that D was taken into care so as to prevent the first

applicant from presenting certain ideas at a school conference.

The Commission, however, is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of the Article invoked as, under Article 26 (Art. 26) of the

Convention, it "may only deal with the matter ... within a period of

six months from the date on which the final decision was taken". Where

no domestic remedy is available, the six months period runs from the

date of the act which is itself alleged to be in violation of the

Convention (cf., e.g., No. 10389/83, Johnson v. the United Kingdom,

Dec. 17.7.86, D.R. 47 p. 72).

The Commission observes that the conference and the provisional

taking of D into public care occurred on 18 November 1991. The present

application was introduced on 19 September 1994, which is more than six

months later.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

4. The applicants claim that the sedation of the first applicant and

the taking of her into compulsory psychiatric care violated Articles

3, 5, 6 and 8 (Art. 3, 5, 6, 8) of the Convention.

The Commission observes that the compulsory psychiatric care of

the first applicant was terminated on 5 February 1992.

It follows that this part of the application has also been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

5. Under Articles 6 and 13 (Art. 6, 13) of the Convention, the first

applicant further complains on her own behalf and on behalf of D that

she could not appeal against the refusal of the personnel at the

Children's Psychiatric Clinic to let her take her daughter home.

The Commission observes that the decision against which the first

applicant wished to appeal was taken on 23 November 1991.

It follows that this part of the application has also been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

6. The first applicant complains, under Articles 6, 8, 10 and 13

(Art. 6, 8, 10, 13) of the Convention on her own behalf and under

Articles 6, 10 and 13 (Art. 6, 10, 13) on behalf of D that she is not

allowed to talk to D on the phone and that there is no possibility to

appeal against this decision.

The Commission, recalling that proceedings concerning the first

applicant's access to D are apparently pending in the County

Administrative Court, considers that the applicants' submissions fail

to substantiate the present complaint.

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 THE APPLICATION INADMISSIBLE.

Secretary Acting President

to the Second Chamber of the Second Chamber

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

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WOLLMAR AND OTHERS v. SWEDEN

WOLLMAR AND OTHERS v. SWEDEN

LEXI