PAULSEN-MEDALEN AND OTHERS v. SWEDEN
Doc ref: 16817/90 • ECHR ID: 001-2249
Document date: September 7, 1995
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AS TO THE ADMISSIBILITY OF
Application No. 16817/90
by Anne-Marie PAULSEN-MEDALEN and Others
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 7 September 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
MM. 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 7 August 1989 by
Anne-Marie Paulsen-Medalen and others against Sweden and registered on
3 July 1990 under file No. 16817/90;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 1 November 1993 and the observations in reply submitted
by the applicant on 23 December 1993 and 11 January 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
The first applicant is an unmarried mother, born in 1958. She
resides at Västra Frölunda which is a suburb of Gothenburg. The second
and third applicants are the first applicant's two sons, P and J, born
in 1984 and 1986 respectively. At present the children live with foster
parents, P at Stenkullen and J at Floda approximately 10 kilometres
from each other and approximately 30 kilometres from Gothenburg. The
fourth and fifth applicants are the first applicant's parents, and
accordingly the second and third applicants' maternal grandparents,
born in 1938 and 1926 respectively. They also reside at
Västra Frölunda. The sixth applicant is J's father. He was born in 1957
and resides at Partille which is also situated near Gothenburg. Before
the Commission all applicants are represented by Mrs. Siv Westerberg,
a lawyer practising in Gothenburg. The application relates to the
taking into care of the second and third applicants and their placement
in the foster homes.
I. The provisional care order
The first applicant came into contact with the social authorities
in 1984 while expecting her first child, P. Following the birth of P,
mother and child stayed first with the mother's parents, then with the
sixth applicant and, as from May 1985 with P's father. Following the
birth of J, in 1986, the first applicant and her sons returned to her
parents before she moved to Högsbohöjd in the summer of 1986. In 1989
the first applicant moved to her present address at Västra Frölunda in
order to be nearer her parents. During this period of time the social
authorities constantly provided assistance to the family in the form
of financial support and support from various persons in order to
assist the first applicant in the upbringing of her children.
When P was a couple of years old it turned out that he was
developing slowly and he was put on the list of children entitled to
special assistance from the Board for Help and Assistance to the
Mentally Retarded (Omsorgsstyrelsen).
In the light of the family's developments since 1984 the social
authorities commenced an investigation in 1988 into the necessity of
taking the children into care. On 8 February 1989 the chairman of the
Social District Council (sociala distriktsnämnden) in Frölunda-Styrsö
decided, on the basis of this investigation, to take the children
immediately into care on a provisional basis. The children were placed
at the Bö Children's Home in Gothenburg.
The first applicant appealed against this decision to the
County Administrative Court (länsrätten) of Gothenburg which, by
judgment of 21 February 1989, upheld the provisional care. The Court
stated as follows:
(translation)
"The documents submitted reveal inter alia the following.
(The first applicant) has received continuous support for
almost five years, first in the form of a home aid
(hemsyster) ... and thereafter in the form of special home
aid (hemma-hos). All efforts were aimed at giving (her) the
support necessary to enable her to take care of the
children and the home. It appears, however, that despite
the support given she does not have sufficient capacity to
protect the children from dangers or to set limits for
them. It also appears that (J) is responsible for his older
brother beyond what may be expected having regard to his
age. In view of this the Court finds it probable that P and
J need care in accordance with (the 1980 Act with Special
Provisions on the Care of Young Persons (lag 1980:621 med
särskilda bestämmelser om vård av unga) - hereinafter "the
1980 Act"). The Court further finds that a care decision
cannot be awaited considering the risks to the children's
health and development. Accordingly, the decision in
question is upheld."
By judgment of 7 March 1989 the Administrative Court of Appeal
(Kammarrätten) of Gothenburg rejected the first applicant's further
appeal against the provisional care order. Leave to appeal against this
judgment was refused by the Supreme Administrative Court
(Regeringsrätten) on 5 April 1989.
II. The care order
Following the provisional care order the Social District Council
lodged an application with the County Administrative Court on
27 February 1989 in order to have the children taken into care pursuant
to the 1980 Act, considering that the first applicant was unable to
provide the necessary care for the children's health and development.
The application was lodged by the Council following a meeting with the
first applicant and her counsel during which she challenged the
Council's and the social authorities' findings.
By judgment of 17 March 1989 the County Administrative Court
decided to take the children P and J into care pursuant to section 1
of the 1980 Act. The Court concluded that there were such deficiencies
in the children's care as to endanger their health and development.
The first applicant appealed against the judgment, initially in
respect of both P and J. She later withdrew the appeal in so far as it
concerned P.
Following a supplementary child psychiatric examination and two
oral hearings the Administrative Court of Appeal upheld the care order
of J by judgment of 13 February 1990. The Court stated inter alia as
follows:
(translation)
"In the present case, there is no reason why an assessment
of J's status should not be confined primarily to what has
been stated by the psychologist KG and also what has been
reported by the senior physician, Dr. GH. Their evidence is
as follows. J is emotionally disturbed. This emotional
disturbance is expected to become more apparent as he grows
older and spends more time with other children. J is in
great need of support in the form of a secure relationship
with an adult who can help him face the outside world and
who sets limits for what is allowed and what is not. J has
been placed in a foster home for almost 11 months.
According to Dr. GH, J will need child psychiatric
treatment for a long time and there is no chance that this
treatment will prove successful unless J stays in his
foster home. (Psychologist) KG has also stated that J
should remain in the foster home.
(The first applicant) has had continuous support in her
parental role, in various forms and for a considerable
period of time. It is quite clear from the documentary and
other evidence that, despite these supportive measures, she
has not been able to take care of P and J simultaneously
without endangering their health and development. In
addition, there is every indication that (the first
applicant) who has explicitly stated that she wants to take
care of the children herself, is unaware in important
respects of what is demanded of her as a parent if she is
to safeguard - primarily - the development of the child,
and also to be responsible for the child's health.
Furthermore, no evidence has emerged in the case to
indicate that the measures taken by society to help (the
first applicant), P and J have resulted in any appreciable
improvement in (the first applicant's) capacity to take
care of the children or that such capacity is developing.
The Court is of the opinion that what has emerged in this
case confirms the view that - at least at present - (the
first applicant) cannot meet the demands which J makes in
regard to care in view of the degree of disturbance to
which he is subjected. The County Administrative Court's
decision to arrange for care for J under the 1980 Act is
therefore upheld."
The first applicant appealed against the judgment. Since her
appeal was lodged out of time the Administrative Court of Appeal
refused, on 22 March 1990, to accept the appeal. On 3 July 1990 the
Supreme Administrative Court upheld the decision of the Administrative
Court of Appeal not to accept the appeal.
III. The implementation of care
a) The mother and her sons (the first, second and third
applicants)
As indicated (cf. I above) the second and third applicants (P and
J) were taken into care on 8 February 1989 and placed at the Bö
Children's Home. On 7 March 1989 and 18 April 1989 J and P,
respectively, were placed with foster parents where they still live
today. Initially no decisions regarding the first applicant's access
to her children were made but it appears that the factual situation
during this initial period, from March 1989 until March 1990, was that
she could see her children once every two weeks for 21/2 hours in the
foster homes. Furthermore, she could see them in her own home twice a
year for 21/2 hours. The sixth applicant, J's father, normally
accompanied the mother when she visited the foster homes in order to
see the children. Their maternal grandparents (the fourth and fifth
applicants) could see the children in connection with the children's
visits to their mother's home.
In early 1990 the first applicant contacted her present
representative, Siv Westerberg, following which she requested, on
19 March 1990, confirmation from the social authorities that no
restrictions had been issued in respect of her right to see her
children.
On 20 March 1990 the chairman of the Social District Council of
Högsbo decided, pursuant to section 16 of the 1980 Act, to restrict the
first applicant's access to her children to 21/2 hours in the foster
homes every second week. On 27 March 1990, acting both in her own
capacity and also on behalf of her children, the first applicant
appealed against the decision to the County Administrative Court. She
maintained primarily that the decision was unlawful in that the
chairman of the Social District Council was not authorised to restrict
access.
By judgment of 20 June 1990 the County Administrative Court
quashed the chairman's decision, agreeing with the first applicant.
However, on 6 July 1990 the Administrative Court of Appeal quashed that
judgment upon appeal from the Social District Council considering that
the chairman of the Social District Council did have the power to
restrict access. The Administrative Court of Appeal furthermore
referred the case back to the County Administrative Court for
determination on its merits, i.e. whether the chairman's restrictions
as to the first applicant's access to her children were acceptable.
The first applicant appealed against the Administrative Court of
Appeal's judgment to the Supreme Administrative Court maintaining,
inter alia, that she had not been informed of the Social District
Council's appeal, nor had she been provided with an opportunity to
submit her observations thereon.
On 5 November 1990 the Supreme Administrative Court refused leave
to appeal.
In the meantime the social authorities decided, on 19 June 1990,
to restrict the mother's and the grandparents' right of telephone
communications with J to twice per week as regards the mother and once
per week as regards the grandparents. Furthermore, by decision of
3 July 1990 the restrictions on access to 21/2 hours every two weeks in
the foster homes in respect of both children were maintained. The
restriction on telephone communications between J and his grandparents
was subsequently withdrawn.
The above decisions of 19 June and 3 July 1990 concerning
restrictions on access between the first applicant and her sons were
also brought before the County Administrative Court for determination.
On 28 September 1990 the County Administrative Court held a
hearing in the case following which judgment was pronounced on
3 October 1990. The Court stated inter alia as follows:
(translation)
"P and J were taken into care on 8 February 1989. J was
placed in a foster home on 7 March 1989, and P on
18 April 1989.
When taken into care, J was emotionally disturbed and was
more seriously affected than his brother. The opinions of
the psychological and medical experts indicate that his
disturbance may prove to be more serious as he grows up and
spends more time with other children. He very much needs
support from adults who can help him deal with the
outside world and who can establish limits for what is
allowed and what is not. It is considered that J will need
child-psychiatric treatment for a very considerable period
of time and that such treatment has no chance of being
successful unless he stays in the foster home.
P is mentally handicapped and has had virtually no
stimulation to help his development when he was at home
with his mother. He has been overprotected and his mother
has treated him like a baby. For this reason, he has not
developed, has been unable to speak, has had difficulty in
coordinating his movements, has been unable to eat by
himself and has had to wear nappies. He is liable to suffer
from urinary tract infections since he suffers from a
kidney defect.
The children's mother may be considered to have a strong
desire to take care of her children herself, but in many
respects she is not aware of what is required of her as a
parent in providing for their safety and health. In
addition, the evidence produced in this case indicates that
the substantial and long-term efforts which have been made
by society have failed to achieve any significant
development of her ability to take care of children.
According to the investigation carried out in connection
with this case, J has made very considerable progress in
his development since he was placed in a foster home. In
less than one year, he has learnt to play with other
children without conflicts occurring. He has managed to
cope with participation in a children's group in a
part-time nursery school, and he has also been able to
accompany his (foster) family outside the home. He has
begun to show that he feels secure and his aggressiveness
has gradually diminished.
In P's case, he can now move without difficulty, his
ability to communicate has developed appreciably, he can
dress himself and he no longer requires nappies. The latter
factor has also meant a substantial improvement in his
tendency to suffer from urinary tract infections.
The mother and her children have had adequate contact every
two weeks in the foster home environment. They have met in
one of the foster homes in accordance with (the first
applicant's) wishes. This arrangement worked well until
March 1990. Subsequently, (the first applicant) considered
that she was entitled to meet her children whenever and as
often as she herself wanted to. There has also been an
increase in the number of telephone calls. These changes,
coupled with the application for the return of the
children, which they were probably aware of, appear to have
greatly disturbed the children. The evidence indicates that
J has had frequent outbursts of aggression, stomach pains
and been unable to sleep. He has also shown considerable
anxiety at his nursery school. Thus, he is no longer making
progress and some regression has occurred.
Every time (the first applicant) visits him, P shows signs
of regression back to the level he had when he was taken
into care. Even when contacts occurred in an acceptable
form, there was some regression, but he regained his normal
level of development more and more rapidly afterwards.
In the view of Dr. GH of the Västra Frölunda Children's and
Juveniles' Psychiatric Centre, the mother and her children
have nothing to gain from frequent contacts. The current
access arrangements are of a satisfactory maximum nature.
The mother would not feel more satisfied if she had more
frequent contact. In the children's case, there is no need
for increased contacts with their mother - on the contrary
it is a question of what they can `stand', since she is so
negative to their foster home placement and to the foster
parents.
Section 14 of the 1990 Act (with Special Provisions on the
Care of Young Persons which had replaced the 1980 Act on
1 July 1990) indicates inter alia that the Social District
Council is responsible for ensuring that the child's need
for contacts with its parents or with other persons who
have custody should be satisfied as far as possible. If
required in view of the purpose of care under the Act the
Council may decide, in accordance with sub-section 1, in
what form the child's contacts with its parents, or with
other persons who have custody of the child, may take
place.
Thus, the social authorities must consider what is most
important: contacts between parents and the child or the
principles for care under the 1990 Act. According to the
travaux préparatoires to the 1990 Act, the main principle
is that where there is a conflict of interest, the child's
needs always have priority. The investigation carried out
in connection with the case may be regarded as indicating
clearly that both P and J need to stay in good foster homes
for a considerable period if the harm they have suffered is
to be remedied. The investigation has also shown that both
children have made major progress in a foster home
environment but that this has ceased and that regression
has occurred since the conflict concerning the application
for the return of the children and increased access
started. In view of these circumstances, the Court finds
that the Social District Council's decision regarding
restrictions on access between (the first applicant) and
her children, P and J, shall be upheld. This also applies
to restrictions on telephone contact with J since, in
accordance with established practice, such contacts are
treated on the same basis as access in accordance with
section 14, para. 2, sub-section 1 of the 1990 Act."
On 8 October 1990 the first applicant appealed on her own behalf
as well as on behalf of her sons against the above judgment to the
Administrative Court of Appeal which, following an oral hearing,
pronounced judgment on 11 January 1991 in which the access arrangements
were upheld.
On 22 January 1991 the first applicant and the children,
represented by their mother, applied to the Supreme Administrative
Court for leave to appeal against the judgment of the Administrative
Court of Appeal. Leave to appeal was granted on 23 July 1991.
By judgment of 28 June 1993 the Supreme Administrative Court
upheld the lower courts' judgments as regards access. In its judgment
the Supreme Administrative Court stated inter alia as follows:
"Section 14 of the 1990 Act prescribes inter alia that the
social welfare committee (socialnämnden) is responsible for
ensuring that a child's need for contact with its parents
or other persons having custody of the child is satisfied
as far as possible. If required in the light of the
objectives for care under the Act, a social welfare
committee may determine the manner in which the child's
contacts with its parents or other persons having custody
of the child shall be implemented. Social welfare
committees shall consider at least once every three months
whether a decision of this kind is still required.
Under this provision, a social welfare committee has the
power to restrict or totally terminate the possibility of
parents to meet their child while the child is subject to
public care. In the travaux préparatoires to Section 16 of
the 1980 Act, the wording of which was identical with the
first two paragraphs of section 14 of the 1990 Act, it is
stated (cf. Government Bill 1979/80:1, Section A, page 601
et seq.) that the circumstances may be such that the
parents should not meet the child in the period during
which care is provided. There may be a risk that the
parents will interfere with care arrangements in an
unwarranted manner. However, it is stressed (page 602) that
this provision should be applied restrictively. In
connection with the addition of the third paragraph of
section 14 in the 1990 Act, it was stated that it followed
from the responsibility of the social welfare committee to
monitor care that it should ensure that decisions regarding
restrictions on access are not upheld longer than necessary
(cf. Bill 1989/90:28 page 72 et seq.).
Thus, although section 14 in the 1990 Act should be applied
restrictively, the Supreme Administrative Court finds that
a limitation of the parents' right of access, if considered
to be required, may also take the form of restrictions on
the parents' right to contact the child by telephone. This
assessment is in compliance with the Supreme Administrative
Court's assessment in case No. RÅ 1971 S 283.
In view of the above and since it appears from the
circumstances that the Social District Council had good
reason for its decision to restrict the right of access as
it did, the appeal shall be rejected."
b) The children and their maternal grandparents (the second,
third, fourth and fifth applicants)
On 12 November 1990 the applicants' representative,
Mrs. Westerberg, submitted a request to the Högsbo Social District
Council for access between the children P and J and their maternal
grandparents to the extent that the children should stay with their
grandparents every weekend all year round.
On 14 November 1990 the Council informed Mrs. Westerberg that the
question regarding the grandparents' access to their grandchildren was
not regulated in the law. The request could, nevertheless, be examined
in the context of the social authorities' general powers to decide on
the personal conditions of the children. Decisions made under these
general powers were not subject to any review. The grandparents were
advised to contact the social authority responsible for the foster home
to discuss the possibilities of access but it was indicated that the
access requested would not appear to be acceptable in view of the
children's needs. By letter of 22 November 1992 the grandparents
insisted on having a formal decision on the subject. On 4 December 1992
the Social District Council decided that the request did not call for
any further action. It does not appear that the grandparents ever
contacted the responsible social authority to discuss any other access
arrangements.
c) J and his father (the third and sixth applicants)
On 5 February 1991 J's father applied, through Mrs. Westerberg,
for access to J to the extent that J should stay with him every weekend
from Friday 17:00 hours until Sunday 17:00 hours.
On 11 February 1991 the Social District Council replied that the
provisions of the 1990 Act concerning access did not apply as J's
father did not have custody. It was pointed out, however, that access
between father and son was important and that J's father should have
access to J in so far as this would be in the interest of J. The father
was requested to contact the responsible social authorities in order
to discuss the access arrangement which could be made. It was
indicated, however, that the access arrangement requested, which went
far beyond what the courts had decided in respect of J's mother, would
not appear to be acceptable. It does not appear that the father took
any further initiative in order to establish access to his son.
IV. First request for the termination of care
By letters of 8 and 27 March 1990, i.e. while the initial
question of care was still pending before the courts (cf. II above),
the first applicant as well as her children, represented by her,
requested the Social District Council to terminate the children's care
immediately.
On 28 August 1990, the Social District Council decided, in
accordance with the provisions of the 1990 Act, not to terminate care.
The first applicant appealed against this decision, also on
behalf of her children, to the County Administrative Court. Following
an oral hearing on 28 September 1990 the Court pronounced judgment on
3 October 1990. The Court decided to maintain the care stating inter
alia as follows:
(translation)
"Ever since (the first applicant) was expecting P in the
early months of 1984, she has received various forms of
assistance, principally to support her in her parental
role. This has obviously meant that it has been possible to
follow up developments which have occurred in the family
and the way in which (she) has coped with her role as a
mother. These observations have provided a basis for the
official opinion expressed in the light of the request for
the termination of the care. The opinions indicate that
mother and children have had satisfactory contacts every
two weeks. In accordance with (the first applicant's)
wishes, they have met in one or the other of the foster
homes, since this made it easier to meet both children at
the same time. This worked well until March 1990, that is
to say the period when an application was made for the
return of the children. (The first applicant) considered
that she was entitled to meet the children whenever and
wherever she found it appropriate. Previous informal
arrangements were not acceptable. In view of this and of
the fact that telephone contacts became more intensive, it
was formally decided to restrict access. (The first
applicant's) course of action has had highly negative
effects, particularly on J. He became very uneasy and was
subject to frequent outbursts of aggression. He had stomach
pains in the evenings and had trouble in sleeping. J has
also demonstrated considerable anxiety at his nursery
school in the last few months. On the whole, according to
the investigation it may be concluded that J has developed
in a very positive manner in the foster home, but that he
experienced a relapse in the spring due to the anxiety
which he was subjected to.
Of the children, J is the one who has suffered most. As
already stated, he has a serious emotional disturbance. P
is mentally retarded and (the first applicant) has treated
him like a baby on whom no demands can be made. According
to the investigation, P has made considerable progress
since he came to his foster home. In less than a year, he
has learnt to speak in a manner which can be understood,
dress himself, move about in a more natural way, eat
without assistance and indicate when he needs to go to the
toilet. As already mentioned (the first applicant) has
always had difficulty in stimulating P's development and
she has treated him like a small baby. When she visits the
foster home, P regresses to the stage he was at before he
was taken into care. He still does this, but now he
recovers more quickly than in the past.
In the report of the Social Welfare Committee (SOU 1986:20)
entitled `Barns behov och föräldrars rätt - socialtjänstens
arbete med utsatta familjer' (Children's Needs and Parental
Rights - social services and disadvantaged families), on
which the new Act (SFS 1990:52) is based, it is stated
inter alia that the main principle is the child's need for
care and protection and that this is the primary objective
of the legislation. This means that where the child's needs
conflict with those of adults, it is quite clear that the
child's needs have priority. The Court considers that no
new circumstances have occurred since the ruling made by
the Administrative Court of Appeal at the beginning of this
year which might give rise to a reassessment of (the first
applicant's) ability to meet the children's physical and
mental needs. The children have developed very favourably
while they have been in a foster home, apart from the
setback resulting from the action to have them returned,
but they are considered to need a long period in a calm,
harmonious but also stimulating environment if they are to
develop in an optimal manner. It has not been shown that
there is cause for the termination of care under the
1990 Act."
The appeal against this judgment was rejected, following an oral
hearing, by the Administrative Court of Appeal by judgment of
11 January 1991 in which the Court stated inter alia as follows:
(translation)
"In its judgment of 13 February 1990, the Administrative
Court of Appeal upheld the judgment of the County
Administrative Court concerning care of J in accordance
with the 1980 Act following an extensive investigation. The
request for the termination of the care for both P and J
was made shortly thereafter or in March 1990. In its
judgment, against which an appeal has been lodged, the
County Administrative Court rejected the request, giving
detailed reasons for its decision. The Court does not
consider that any evidence has emerged, either in the oral
hearing or in any other context, which gives cause for
amendment of this judgment."
Leave to appeal was refused by the Supreme Administrative Court
on 23 July 1991.
V. Second request for the termination of care, and request for
extended access
On 11 May 1992 the first applicant requested the Högsbo Social
District Council to terminate the care of her sons. In the alternative
she requested that her right of access should be extended to every
weekend from Friday 18:00 hours to Sunday 18:00 hours. She maintained
that there was no longer a need for public care or restrictions on
access.
The Council rejected the request and the mother, acting both in
her own capacity and as representative of her children, appealed to the
County Administrative Court, which held a hearing on 1 October 1992.
At the hearing the mother reiterated her request from the earlier
proceedings for concrete evidence as to her unsuitability as a parent.
She submitted that if the children were still presenting problems, this
was due to the bad conditions in the foster homes and to the fact that
the eldest son was mentally retarded. In the course of the hearing the
parties agreed to allow the children and the mother to undergo a child
psychiatric examination.
After this psychiatric examination had been completed the Court
held another hearing following which judgment was pronounced on
27 April 1993. The Court rejected the appeal and stated inter alia as
follows:
(translation)
"The question in the case is whether there has been a
change in (the first applicant's) situation and abilities
which now make it possible for her to give the children the
security and care they need. The Children's and Juveniles'
Psychiatric Clinic's report provides the best analysis of
(her) ability to meet the children's needs in these
respects. This report indicates that she clearly wishes to
take care of her children and has the best intentions.
However, she has shown an inability to establish a
structure and to set limits in everyday, normally
structured situations. This has led to frustrations which
the children cannot handle and with increasing chaos as a
result. Under pressure (the first applicant) has shown
directly inappropriate and degrading behaviour towards the
children, primarily in verbal form but sometimes also in a
physical manner.
(The first applicant) and Siv Westerberg have not stated
the reason for the termination of the care, apart from
sweeping and unconfirmed claims that (the first
applicant's) apartment is now clean and nicely arranged and
that she is able to take care of her children.
The witness statements only serve to confirm what already
appears from the Children's and Juveniles' Psychiatric
Clinic's report, namely that J has satisfactory
intelligence and that (the first applicant) functions best
with the children in play and games. What the witnesses,
who have met (her) and the children for an hour or two,
have said about the relationship between the mother and her
children cannot constitute grounds for the termination of
the care.
In the Court's opinion nothing has emerged during the
examination which supports the view that (the first
applicant) could now provide P and J with the care and
security to which they are entitled. On the contrary the
Children's and Juveniles' Psychiatric Clinic's report
indicates unambiguously that there are no prerequisites for
the termination of the care, that such prerequisites cannot
be anticipated in the foreseeable future and that there is
no evidence that an increased access would be beneficial to
the children. The Social District Council's decision that
the care should not be terminated and that the right of
access should not be extended is therefore upheld.
The fact that conditions in P's foster home might be such
as to make it inappropriate as a foster home cannot
constitute grounds for the termination of the care for P.
Unsatisfactory conditions might justify a change of foster
home, but this question cannot be considered in the present
context."
The first applicant lodged an appeal against the County
Administrative Court's judgment maintaining that the care should be
terminated and that, in any event, she should be granted an extended
right of access. On 8 October 1993 the Administrative Court of Appeal
rejected the appeal following an oral hearing. It adhered to the
assessment made by the County Administrative Court as regards the
continuation of care. As regards the question of access the
Administrative Court of Appeal stated as follows:
(translation)
"Section 14 of the 1990 Act indicates that a local social
welfare committee is responsible for ensuring that the
child's need for contacts with its parents or with other
persons who have custody should be satisfied as far as
possible and that - if required in view of the purpose of
care - the committee may decide in what form such contacts
shall take place. Under this provision, the social welfare
committee has the power to restrict or totally prohibit the
possibilities of parents to meet their child while it is
subject to care in accordance with the 1990 Act. The
travaux préparatoires to the 1990 Act state, inter alia,
that there may be a situation in which the parents should
not meet the child while care is provided. There may be a
risk that the parents will intervene in the care process in
an unnecessary manner. According to the travaux
préparatoires, the main principle is that where there is a
conflict of interest, the needs of the child must always
have priority.
The Court considers that more frequent access than that
decided by the Social District Council would not be
beneficial to the children. More frequent contacts would be
a threat to their need to experience emotional security and
continuity in their current placement. This is also the
position taken by the Supreme Administrative Court as
recently as 28 June 1993 in its judgment on the question of
access. Therefore, the Court cannot but conclude that, as
regards the degree of access which is appropriate between
(the first applicant) and her sons P and J, the primary aim
should be confined to maintaining contact between them. The
restrictions of access in the manner which has occurred are
therefore justified."
Leave to appeal to the Supreme Administrative Court was refused
on 28 March 1994.
VI. Third request for the termination of care, and request for
extended access
On 12 October 1994 the first applicant applied again to the
Social District Council for the termination of care or, in the
alternative, extended access. She furthermore requested legal aid and
that Siv Westerberg be appointed counsel.
The question of legal aid and appointment of counsel was brought
before the County Administrative Court which decided on
24 November 1994 to grant legal aid. The request for the appointment
of Siv Westerberg as counsel was, however, rejected as the Court found
that she did not possess the competence required under section 44 of
the Legal Aid Act (rättshjälpslagen).
The decision in respect of the appointment of counsel was upheld
by the Administrative Court of Appeal on 15 December 1994 and leave to
appeal on this point was refused by the Supreme Administrative Court
on 16 March 1995.
The question concerning termination of care and extended access
is apparently at present pending before the Swedish administrative
courts.
VII. The exercise of the right of petition
On 31 January 1991 Siv Westerberg submitted a request to the
social authorities to visit the children P and J in their foster homes
in order to complete the application lodged with the Commission.
On 8 February 1991 Mrs. Westerberg was informed that neither the
social authorities nor the foster parents would assist in making such
arrangements.
B. Relevant domestic law
a) The Acts with Special Provisions on the Care of Young
Persons of 1980 and of 1990
During the proceedings in the present case the 1980 Act with
Special Provisions on the Care of Young Persons (the 1980 Act) was
replaced by a new Act of 1990 with the same name (the 1990 Act). The
1990 Act entered into force on 1 July 1990. According to the
transitional provisions a care order issued under the 1980 Act shall
be regarded as a care order under the corresponding provision in the
1990 Act. The same applies with respect to decisions on access.
In the present case the children were taken into care pursuant
to section 1 of the 1980 Act which at the time read as follows
(subsections 1 and 2):
(translation)
"Care is to be provided pursuant to this Act for persons
under eighteen years of age if it may be presumed that the
necessary care cannot be given to the young person with the
consent of the person or persons having custody of him and,
in the case of a young person aged fifteen or more, with
the consent of the young person.
Care is to be provided for a young person if
1. lack of care for him or any other condition in the
home entails a danger to his health or development, or
2. the young person is seriously endangering his health
or development by abuse of habit-forming agents, criminal
activity or any other comparable behaviour."
Section 11 of the 1990 Act, which corresponds to section 11 of
the 1980 Act, stipulates that the responsibility for the care and the
child's personal conditions rests with the Social Council. The
provision reads as follows:
(translation)
"The Social Council decides how care of the young person is
to be arranged and where he is to reside during the period
of care.
The Council may consent to the young person residing in his
own home if this may be presumed to be the most appropriate
way of arranging the care, but care pursuant to this Act is
always to commence away from the young person's home.
If a decision by the Council under subsection one or two
cannot be awaited, the chairman or some other member
appointed by the Council may decide the question. The
decision is then to be reported at the next meeting of the
Council.
The Council or the persons charged with care of the young
person by the Council shall supervise the young person and
take such decisions concerning his personal circumstances
as are necessary for the discharge of care."
One of the effects of a care decision is that the Social Council
takes the place of the custodian, or can be said to share the
responsibility for the child with the custodian, although the care
decision does not imply that the custody of the child is transferred
to the Council. The responsibility of the Social Council, after a
decision on public care has been taken, includes decisions in matters
regarding the child's personal conditions that are normally entrusted
to a parent. In performing the care, consultations with the child's
parents should be promoted to the extent possible and a care decision
must not have the effect of depriving a parent of all influence when
it comes to the child's personal conditions. It is only to the extent
necessary for providing the care that the Social Council takes over the
responsibility of the child from its parents.
Section 14 of the 1990 Act places upon the Social Council a duty
to see to it that the child's needs of contacts, inter alia with its
parents, are satisfied. This provision reads as follows:
(translation)
"It is the responsibility of the Social Council to ensure
that the greatest possible provision is made for the young
person's need of access to parents or other persons having
custody of him.
If necessary in view of the purpose of the care authorised
under this Act, the Social Council may decide
1. how access between the young person and his or her
parents or other persons entrusted with the custody of the
child may be exercised, or
2. that the young person's whereabouts must not be
revealed to parents or custodians.
The Social Council shall review, at least once every three
months, whether an order of the kind referred to in
subsection two is still needed."
As appears from the provision itself, the Social Council's
authority to decide on restrictions on access applies only in regard
to parents or others who have been entrusted with custody of the child.
Decisions on such restrictions, therefore, cannot be lawfully taken
under section 14 in regard to grandparents who are not the child's
custodian. Grandparents have no locus standi of their own in such
proceedings.
As regards a parent who has no part in the custody of a child the
legal situation is not clear as far as access rights are concerned. So
far there is no authoritative ruling from the Supreme Administrative
Court clarifying whether or to what extent a parent who has no part in
the custody and who has not been granted access by a court or in an
agreement between the parents, can request a decision of the Social
Council in respect of access.
According to section 41 of the 1990 Act appeals may be lodged
with the County Administrative Court against a decision of the Social
Council if it has made an order as to where the care of the young
person is to commence or has made an order regarding the transfer of
the young person from the home where he is residing, if it has decided
a question relating to continued care under this Act, has made an
order, pursuant to section 14, concerning access to the young person
or concerning non-disclosure of his whereabouts. Furthermore, appeals
may be lodged against decisions made under section 22 of the Act as to
the use of preventive measures, decisions concerning access, pursuant
to section 31, or decisions concerning continuing removal prohibitions.
Other decisions by the Social Council pursuant to the 1990 Act
are final.
b) The Administrative Procedure Act
(Förvaltningsprocesslagen)
The proceedings before the administrative courts are governed by
the Administrative Procedure Act. Section 18 of the Act stipulates, as
a general rule, that a party to the proceedings shall have been
informed about new facts and other information submitted by others than
himself before a case is determined. The party shall have had the
opportunity to comment upon any such information if there are no
reasons against such a procedure as laid down in section 10
subsection 2 of the Act according to which such communication of new
information is not necessary if there are no reasons to believe that
the claim will be granted as a whole or in part, if it is evident that
a communication will serve no purpose, or if there is a risk that a
communication would render the enforcement of a decision in the case
considerably more difficult.
COMPLAINTS
1. All applicants complain, under Article 8 of the Convention, of
the fact that P and J were taken into care and remain in care
(cf. sections I - II and IV - VI of the facts).
2. As regards the implementation of the care order the first
applicant and her children P and J, as represented by her, complain of
the conditions in the foster homes and the restrictions on access, both
as regards physical contacts and telephone contacts, the latter in so
far as J is concerned. They invoke in this respect Articles 8 and 10
of the Convention. The grandparents and J's father also complain, under
Article 8 of the Convention, of the access arrangements in respect of
them (cf. section III a) - c) of the facts)
3. As regards the proceedings as such the first applicant complains
that she did not have a fair hearing within the meaning of Article 6
of the Convention when the courts, from 20 March 1990 to 28 June 1993,
determined the lawfulness and the reasonableness of the access
restrictions imposed (cf. section III a) of the facts). She also
alleges, under Article 6 of the Convention, that these proceedings were
not terminated within a reasonable time.
4. The first applicant likewise complains that the requests of 8 and
27 March 1990 to lift the care orders were not determined within a
reasonable time (cf. section IV of the facts).
5. The grandparents and the children, represented by their mother,
allege violations of Articles 6 of the Convention as a result of the
Social District Council's refusal to take any decision as regards their
right of access to each other and the absence of any possibility to
obtain a court review of the restrictions in fact imposed (cf. section
III b) of the facts).
6. J's father (the sixth applicant) alleges violations of Article 6
of the Convention as a result of the Social District Council's refusal
to take any decision as regards his right to see his son and the
alleged absence of any possibility to have a court review of the
restrictions in fact imposed (cf. section III c) of the facts).
7. Finally, the applicant mother and the children complain under
Article 25 of the Convention that Mrs. Westerberg was not granted a
right of access to P and J in order to complete the application lodged
with the Commission and also that the administrative courts refused to
appoint Mrs. Westerberg as their counsel under the national legal aid
scheme (cf. sections VI - VII of the facts).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 August 1989 and registered
on 3 July 1990.
On 3 May 1993 the Commission decided to bring the application to
the notice of the respondent Government and invite them to submit
written observations on its admissibility and merits.
After two extensions of the time-limit fixed for that purpose the
Government's observations were submitted on 1 November 1993. The
applicants' observations in reply were submitted on 23 December 1993
and 11 January 1994.
THE LAW
The applicants complaint of a variety of violations of the
Convention in relation to the decisions taken concerning the children's
care. The Government argue that in respect of certain complaints there
is a conflict of interest between the children and their mother which
disqualifies her as their representative. In the Government's view the
children are not victims of the alleged violation of Article 8
(Art. 8) of the Convention.
The Commission recalls that it is clear from Article 25 para. 1
(Art. 25-1) of the Convention that the Commission can receive an
application from a person, non-governmental organisation or group of
individuals only if such person, non-governmental organisation or group
of individuals can claim to be a victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention.
However, in the circumstances of the present case the Commission has
not found it necessary to determine, in respect of the different
complaints submitted, whether all applicants may claim to be victims,
but will, for the purposes of this case, leave this question open
unless it is otherwise expressly indicated.
1.a) The applicants complaint that the decisions to take P and J into
care violated Article 8 (Art. 8) of the Convention in so far as it
guarantees the right to respect for family life. This provision 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 or morals, or for the protection of the rights and
freedoms of others."
In support of their allegations the applicants submit that no relevant
circumstances have been established which could lead to the conclusion
that it was necessary to take P and J into care.
The Government maintain that the interference was in accordance
with law, had a legitimate aim of protecting the children and that the
public care order was necessary and based on both relevant and
sufficient grounds.
The Commission recalls that P and J were taken into care on a
provisional basis on 8 February 1989. This interim measure was taken
as their mother, following several years of involvement and support
from the social authorities, was considered to be incapable of giving
the children the necessary protection and care. This was subsequently
approved by the courts at three levels. The Commission furthermore
recalls that the interim measure was followed shortly afterwards, on
27 February 1989, by an application lodged with the County
Administrative Court pursuant to the 1980 Act in order to have the
children taken into care. In these circumstances the Commission finds
that the provisional care order did not interfere with the applicants'
rights under Article 8 (Art. 8-2) of the Convention in a way which was
not justified under paragraph 2 of this provision.
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.
b) As indicated above the social authorities lodged an application
for care pursuant to the 1980 Act with the County Administrative Court
on 27 February 1989. By judgment of 17 March 1989 the Court decided to
take P and J into care. However, the Commission is not required to
decide whether or not the facts alleged by the applicants in this
respect disclose any appearance of a violation of Article 8 (Art. 8)
of the Convention as, under Article 26 of the Convention, it may only
deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case the applicants failed to pursue the appeal
against the County Administrative Court's judgment in so far as it
concerned P and furthermore they failed to appeal against the judgment
of the Administrative Court of Appeal within the prescribed time-limit
for which reason the appeal was rejected. They have, therefore, not
exhausted the remedies available to them under Swedish law. Moreover,
an examination of the case as it has been submitted does not disclose
the existence of any special circumstances which might have absolved
the applicants, according to the generally recognised rules of
international law, from exhausting the domestic remedies at their
disposal.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and this part of
the application must accordingly be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
c) The applicants also complain, under Article 8 (Art. 8) of the
Convention, of the fact that the courts have subsequently refused to
terminate care.
The Commission assumes that the continuing care of P and J
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 has
therefore 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 fulfilled: the interference must
be "in accordance with the law", it must pursue one or more of the
legitimate aims enumerated in para. 2 of Article 8 (Art. 8-2) and it
must be "necessary in a democratic society" for that or those
legitimate aims.
As regards the first condition, the Commission finds that the
relevant provisions in Swedish law satisfy the requirements as to the
quality of the law (cf. Eur. Court H.R., Olsson judgment of 24 March
1988, Series A no. 130, pp. 30 - 31, paras. 60 - 63). The Commission
also 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 expression "for the protection of health or morals"
and "for the protection of the rights and freedoms of others" (cf. also
the above-mentioned Olsson judgment, p. 31, paras. 64 - 65).
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
(cf. above-mentioned Olsson judgment, pp. 31 - 32, para. 67). That does
not mean, however, that the Commission's review is 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. the Olsson judgment, p. 32, para. 68).
In the present case, the Commission recalls that the applicants
allege that the continuing care is based on irrelevant and insufficient
circumstances, whereas the Government maintain that the reasons adduced
by the courts for the continuation of care fulfil the requirements
under Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission recalls that the question of the continuation of
the care order has been examined twice by the administrative courts at
three levels (cf. sections IV and V of the facts) and that a third
request for the termination of care is at present pending before the
courts (cf. section VI of the facts). From the courts' judgments, which
have been quoted extensively above, the Commission recalls that it was
found established that a return to their mother would endanger P's and
J's health and development which, in the Commission's view is clearly
relevant to the decision to maintain care. Furthermore, the Commission
finds that the courts obtained substantial material relevant to the
issue in question, including medical expert advice. It cannot therefore
be said that the courts decided without adequate knowledge of the
case. In the light of this the Commission finds that the decisions
to maintain the care of P and J were supported by relevant and
sufficient reasons and that, having regard to their margin of
appreciation, the Swedish courts were reasonably entitled to think that
it was necessary to do so. Accordingly, the Commission concludes that
these decisions can be regarded as "necessary in a democratic society"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention
in the interest of the children.
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. The applicants also complain of the way in which the care order
was implemented and consider this to violate Article 8 (Art. 8) of the
Convention in various ways.
a) As regards the first applicant and her sons their complaints
relate to the conditions in the foster homes and the restrictions on
access, both as regards physical contacts and telephone contacts, the
latter only in so far as J is concerned. In respect of the restrictions
on telephone contacts they also rely on Article 10 (Art. 10) of the
Convention.
As regards the conditions in the foster homes the applicants
submit that P's foster father is a violent alcoholic and that the
conditions in that home thus endanger P's health and development. The
Government maintain that the domestic remedies have not been exhausted
in that no request has been made for a transfer to another foster home.
The Commission agrees with the Government on this point. Under
Swedish law it is for the social authorities to monitor the proper
implementation of the care order which includes a regular control of
the foster home conditions. The custody holder, in the present case the
first applicant, nevertheless has a right to request a transfer to
another foster home and may, pursuant to section 14 of the 1990 Act,
bring any decision to that effect before the administrative courts for
determination. This the first applicant did not do and she therefore
did not exhaust the remedies available to her under Swedish law. Since
the Commission has found no special circumstances which might have
absolved the applicant from exhausting this remedy it follows that this
part of the application must be rejected under Article 27 para. 2
(Art. 27-2) of the Convention.
As for the remaining aspects of the implementation of the care
order in respect of the first applicant and her children, the
Commission notes that there appears to be no question of the children
being adopted, and the first applicant has not been deprived of her
parental rights. Nevertheless the restriction of access was an
interference with the right to respect for family life within the
meaning of Article 8 para. 1 (Art. 8-1) of the Convention and the
Commission must therefore examine whether this interference complied
with para. 2 of this provision.
The Commission finds that the interference was in accordance with
law and had a legitimate aim (cf. Eur. Court H.R., Margareta and Roger
Andersson judgment of 25 February 1992, Series A no. 226-A, pp. 25 -
28, paras. 74 - 87). What remains is accordingly to consider whether
it was "necessary". In this respect the Commission recalls that
initially no decisions regarding access between mother and children
were made but that she could de facto see her children once every two
weeks for 21/2 hours. Likewise certain arrangements were made in order
to allow the grandparents and J's father to visit or meet the children.
In March 1990 the social authorities formalised these access
possibilities as the applicant challenged the above de facto
arrangements. Furthermore, the first applicant's right to telephone
contacts with J was limited, as from 19 June 1990, to twice per week.
Subsequently, the access arrangements have been examined by the
administrative courts twice (cf. sections III a) and V of the facts)
and are at present once more subject to proceedings before the courts
(cf. section VI of the facts). Although the appeals against the
limitations on access have been unsuccessful the Commission notes that
the authorities did arrange for access in order to maintain contact
between the first applicant and her children. Furthermore, the
Commission recalls the reasons given by the courts, in particular by
the County Administrative Court in its judgment of 28 September 1990,
by the Supreme Administrative Court in it judgment of 28 June 1993 as
well as by the Administrative Court of Appeal in its judgment of 8
October 1993. In the circumstances of this case the Commission finds
that the reasons set out in these judgments are both relevant and
sufficient for maintaining the access arrangements made.
In conclusion the Commission thus finds that the measures taken
in implementation of the care order were supported by reasons
justifying them as proportionate to the aim pursued (cf. also Eur.
Court H.R., Olsson (No. 2) judgment of 27 November 1992, Series A
no. 250, pp. 35 - 37, paras. 89 - 92).
It follows that the first applicant's remaining complaints
relating to the implementation of the care order as submitted under
Article 8 (Art. 8) of the Convention are manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. Having
regard to this the Commission has found no reason to examine the issues
separately under Article 10 (Art. 10) of the Convention.
b) The applicant grandparents also complain that the access
arrangements between them and the children violated Article 8
(Art. 8) of the Convention.
The Commission recalls that the grandparents submitted a request,
on 12 November 1990, to the social authorities for access to the extent
that P and J should stay with them every weekend all year round. By
letter of 14 November 1990 they were advised that, whereas the access
requested appeared to be unacceptable they should contact the
appropriate authority in order to discuss the possibilities of access
to P and J. It does not appear, however, that the grandparents pursued
the matter as suggested.
In these circumstances, and having regard to the above reasons
for restricting access between the first applicant and her sons, the
Commission finds no appearance of a violation of the grandparents'
rights under 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.
c) Finally, J's father (the sixth applicant) complains that the
access arrangements between him and J violated Article 8 (Art. 8) of
the Convention.
The Commission recalls that, like the grandparents, J's father
requested access to the extent that J should stay with him every
weekend. He was requested to contact the appropriate authority in order
to discuss the access arrangement which could be made. It does not
appear that the applicant ever pursued the matter. In these
circumstances the Commission finds no appearance of a violation of his
rights under Article 8 (Art. 8) of the Convention in respect of the
question of access to his son.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Under Article 6 (Art. 6) of the Convention the applicants
complain of a number of alleged procedural shortcomings in respect of
the court proceedings involved. Article 6 para. 1 (Art. 6-1), first
sentence, which is of relevance in this respect, reads as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law."
a) The first applicant complains that she did not have a fair
hearing when the courts determined the lawfulness and reasonableness
of the access restrictions imposed (cf. section III a) of the facts).
She refers in particular to the fact that the Administrative Court of
Appeal on 6 July 1990 quashed a judgment pronounced by the County
Administrative Court without her having been informed about the social
authorities' appeal or having had the opportunity to submit comments
thereon.
The Government argue that Article 6 (Art. 6) does not apply to
the particular proceedings leading to the judgment
of the Administrative Court of Appeal of 6 July 1990 in that it was not
decisive for any of the applicant's civil rights. In the alternative
the Government maintain that the procedure chosen did not in the
circumstances of this case amount to any denial of justice.
The Commission finds that Article 6 (Art. 6) applies to the
proceedings in which the courts were called upon to determine whether
and to what extent access should be arranged between the first
applicant and her sons. However, in order to determine whether the
proceedings were fair within the meaning of Article 6 (Art. 6) of the
Convention the Commission must consider these proceedings as a whole.
In doing so the Commission recalls that the issue of access which
the courts examined was decided first by the County Administrative
Court on 28 September 1990 and subsequently by the Administrative Court
of Appeal on 11 January 1991. Before both courts oral hearings were
held during which the first applicant, represented by counsel, had the
opportunity to submit everything which in her opinion was of importance
to the case. Furthermore, the issue was examined once more by the
Supreme Administrative Court which upheld the lower courts' conclusions
as regards access. Nothing has emerged during the Commission's
examination of the present application which could call in question the
fairness of these proceedings.
In these circumstances the Commission considers that the incident
in question cannot attain such importance that the proceedings seen as
a whole were unfair, having regard also to the fact that the judgment
of 6 July 1990, to which the first applicant refers, did not decide the
merits of the case but merely referred the case back to the County
Administrative Court for a determination on its merits. In the
Commission's view the proceedings in question were, considered as a
whole, fair within the meaning of Article 6 para. 1 (Art. 6-1) 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.
b) The applicant also complains that the above proceedings did not
come to an end within a reasonable time and refers to the fact that
they commenced in March 1990 and ended in June 1993.
The Government maintain that the proceedings commenced in July
1990 but otherwise leave it to the Commission to determine whether the
period of time was reasonable. They point out, however, that in the
present case the detrimental effects appear to have been quite limited.
The Commission has taken cognizance of both parties' submissions.
After a preliminary examination thereof the Commission has reached the
conclusion that the particular question of the length of the
proceedings raises a serious issue under Article 6 (Art. 6) of the
Convention and that this issue can only be determined after a full
examination of its merits. It follows that this part of the application
cannot be regarded as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for
declaring it inadmissible has been established.
4. The first applicant complains that also the requests submitted
on 8 and 27 March 1990 to lift the care order concerning P and J were
not determined within a reasonable time.
The Commission recalls that the first applicant's requests were
first rejected by the Social District Council on 28 August 1990.
Subsequently an oral hearing was held in the County Administrative
Court on 28 September 1990 and judgment was pronounced on 3 October
1990. On appeal judgment was pronounced by the Administrative Court of
Appeal on 11 January 1991 following an oral hearing also in this court.
Leave to appeal was finally refused by the Supreme Administrative Court
on 23 July 1991. Accordingly, the question of the termination of care
was thoroughly examined by one administrative authority and three
courts over a period of approximately one year and four months. The
Commission does no consider that this discloses any appearance of a
violation of the right to have the issue determined within a reasonable
time.
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.
5. The grandparents and the children, as represented by their
mother, complain under Articles 6 and 13 (Art. 6, 13) of the Convention
that they cannot obtain a court review of the de facto restrictions on
access between them.
The Government submit that since a right of access between
grandparents and children in the circumstances prevailing in the
present case does not exist under domestic law Article 6 (Art. 6) does
not apply in respect of the proceedings concerning the grandparents'
request for access. Furthermore, they maintain that Article 13
(Art. 13) is not applicable either since the grandparents do not have
any arguable claims under the Convention.
The Commission agrees with the Government on these points. As
regards Article 6 (Art. 6) of the Convention the Commission recalls
that in order for this provision to apply to the proceedings in
question it must first ascertain whether there was a dispute over a
"right" which can be said, at least on arguable grounds, to be
recognised under domestic law (cf. for example Eur. Court H.R., Skärby
judgment of 28 June 1990, Series A, no. 180-B, p. 36, para. 27). Under
Swedish law the grandparents have no right of access to P and J. Thus
they cannot claim on any arguable ground that they have a right under
domestic law and Article 6 (Art. 6) therefore does not apply in the
present case (cf. also No. 12763/87, Dec. 14.7.88, D.R. 57 p. 216).
This complaint is accordingly incompatible ratione materiae with the
provisions of the Convention and must be rejected under Article 27
para. 2 (Art. 27-2) of the Convention.
As regards Article 13 (Art. 13) the Commission recalls that this
provision has been interpreted by the European Court of Human Rights
as requiring a remedy in domestic law only in respect of grievances
which can be regarded as "arguable" in terms of the Convention (cf. for
example Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,
Series A no. 131, p. 23, para. 52).
Having regard to its above conclusions in respect of the
Convention complaints submitted by the grandparents, the Commission
considers that they do not have any "arguable claims" of a violation
of the provisions invoked for these complaints. In these circumstances
it finds no appearance of a violation of Article 13 (Art. 13) of the
Convention. Accordingly this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. J's father (the sixth applicant) complains, under Article 6
(Art. 6) of the Convention, of the alleged absence of any possibility
to obtain a court review of the access restrictions imposed on him vis-
à-vis his son, J.
The Government submit that it should be possible for him to
challenge the de facto restrictions and thereby obtain a court decision
as to how to construe section 14 of the 1990 Act in this respect. Thus
the Government maintain that there is a possibility of obtaining a
review under Swedish law.
The Commission has taken cognizance of both parties' submissions
in respect of this particular complaint. After a preliminary
examination thereof the Commission has reached the conclusion that it
raises a serious issue as to the interpretation and application of
Article 6 (Art. 6) of the Convention and that this issue can only be
determined after a full examination of its merits. It follows that this
complaint cannot be regarded as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
ground for declaring it inadmissible has been established.
7. Finally, the first applicant and her children complain, under
Article 25 (Art. 25) of the Convention, that Mrs. Westerberg was not
granted a right of access to P and J in order to complete the
application lodged with the Commission and also that the administrative
courts refused to appoint Mrs. Westerberg as their counsel under the
national legal aid scheme. They consider this to amount to a violation
of their right to an effective access to the Commission.
The Commission finds no indication that the applicants have been
hindered in the effective exercise of their rights of individual
petition as guaranteed by Article 25 (Art. 25) of the Convention. The
Commission therefore considers that it need take no further action in
respect of the alleged interference with this right.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits,
- the first applicant's complaint concerning the length of
the proceedings which determined the question of access between
her and the children ending with the Supreme Administrative Court
judgment of 28 June 1993,
- the sixth applicant's complaint concerning the lack of a
court remedy for the determination of his right of access to his
son, J,
DECLARES INADMISSIBLE the remainder of the application, and
DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged
interference with the effective exercise of the right of
individual petition.
Secretary to Acting President of
the Second Chamber the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)