Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24721/94

by Anna-Carin BURLIND

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 July 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 April 1994 by

Anna-Carin Burlind against Sweden and registered on 28 July 1994 under

file No. 24721/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant, a Swedish citizen born in 1956, resides at

Gothenburg. She has three daughters, V, born in 1975, R, born in 1985,

and N, born in 1991.

On 6 April 1993 the Social District Council (Stadsdelsnämnden)

of Majorna, Gothenburg decided to apply to the County Administrative

Court (Länsrätten) at Gothenburg for a care order concerning R and N

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

Provisions on the Care of Young Persons (Lagen med särskilda

bestämmelser om vård av unga, 1990:52). 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.

Before deciding to apply for a care order, the Social District

Council had held a meeting during which it had heard the applicant, her

lawyer, her mother and her two sisters.

Later, the County Administrative Court held a hearing at which

the applicant, her lawyer, her sisters, the children's counsel,

representatives of the Social District Council and a social expert

(socialkonsulent) from the County Administrative Board (Länsstyrelsen)

were heard. The children's counsel and the social expert supported the

Social District Council's application. The Court further had at its

disposal medical certificates from a Children's Psychiatric Clinic

(Barn- och ungdomspsykiatrisk mottagning) concerning the children and

from a neurologist concerning the applicant and written statements from

R's school and N's day-care centre.

By judgment of 30 April 1993, the County Administrative Court

granted the application and ordered that R and N be taken into public

care. The Court found that the applicant's insufficient care of R and

N and the conditions in the home endangered the children's health and

development. It noted, inter alia, that the applicant in January 1992

had been severely assaulted by N's father, that before and after this

incident she had had drinking problems, that she had attempted to

commit suicide shortly after the incident in February 1993 and that she

had received assistance from the social authorities on several

occasions. The Court further made the following conclusions:

(translation)

"The investigation does not conclusively show how serious

[the applicant's] drinking problems are. At the oral

hearing, she has testified that she has a tendency to

overconsume alcohol on festive occasions. This has

repeatedly put her in very serious situations affecting

both herself and her children. She has in a short period

of time consumed so much alcohol that, on three occasions,

she has been taken into custody pursuant to the Act on

the Taking into Custody of Intoxicated Persons (Lagen

om omhändertagande av berusade personer m m, 1976:511).

Furthermore, she has repeatedly attempted to commit

suicide. This indicates that she lacks a normal custodian's

understanding of children's need of security, attention and

care and that she gives priority to herself and her own

problems. Even if she feels today that she is out of her

crisis and the conditions in the home are stable, it is

evident both from the written submissions in the case and

from the information that has emerged during the oral

hearing that, for a long time past, there is a need of care

which [the applicant] - in spite of her good intentions -

has not been able to satisfy.

The children have - in so far as can be ascertained - not

yet suffered any serious mental disturbance, but they have

clearly been affected by the conditions in their home to

such an extent that care is required. [The applicant's]

inability to understand the children's needs has caused

considerable deficiencies in the care of them. ..."

The applicant appealed to the Administrative Court of Appeal

(Kammarrätten) of Gothenburg. After having held a hearing at which it

heard the applicant's eldest daughter, V, and the same persons as the

County Administrative Court except for the social expert and the

applicant's sisters, the appellate court, on 1 September 1993, upheld

the County Administrative Court's judgment. On 2 November 1993 the

Supreme Administrative Court (Regeringsrätten) refused the applicant

leave to appeal.

COMPLAINTS

The applicant complains that the taking into care of her children

has violated her rights under Article 8 of the Convention.

THE LAW

The applicant complains of a violation of her rights under

Article 8 (Art. 8) of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

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

freedoms of others."

The applicant contends that it was not necessary to take her

daughters into public care, as, at the time of the courts' decisions,

the family's situation had stabilised and she could take care of her

daughters herself. She claims that she suffered from her injuries

caused by the assault in January 1992 for a very long time and that she

contacted the social authorities and asked for help during this period.

Among other things, she suggested that the children be given public

care on a voluntary basis. The social authorities, however, rejected

her requests.

The Commission finds that the taking into public care of the

applicant's daughters R and N interfered with the applicant's right to

respect for her family life as ensured by Article 8 para. 1 (Art. 8-1)

of the Convention. It must therefore be examined whether this

interference was justified under the terms of Article 8 para. 2

(Art. 8-2). In this respect, the Commission recalls that three

conditions must be satisfied: the interference must be "in accordance

with the law", it must pursue one or more of the legitimate aims

enumerated in para. 2 (Art. 8-2) and it must be "necessary in a

democratic society" for that or those aims.

As regards the first condition, the Commission finds that the

relevant decisions were in conformity with Swedish law, namely

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

Provisions on the Care of Young Persons.

The Commission further finds that the interference had a

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

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

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

and freedoms of others".

It thus remains to be determined whether the interference was

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

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

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

the interference corresponds to a pressing social need and, in

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

determining whether an interference is "necessary in a democratic

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

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

Commission's review is not limited to ascertaining whether the

respondent State has exercised its discretion reasonably, carefully and

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

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

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

justify the interference at issue are "relevant and sufficient"

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

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

In the present case, the Commission recalls that the County

Administrative Court, in its judgment of 30 April 1993, found that the

applicant's insufficient care of R and N and the conditions in the home

endangered the children's health and development. It concluded, inter

alia, that the applicant had drinking problems which, repeatedly, had

put her in very serious situations affecting both herself and her

children. It further noted that she had attempted to commit suicide on

different occasions.

The Commission further recalls that the County Administrative

Court and the Administrative Court of Appeal, before giving their

judgments, had held hearings at which the applicant, her lawyer, the

children's counsel and representatives of the Social District Council

were present and heard. The County Administrative Court further heard

a social expert from the County Administrative Board and the

applicant's sisters and the Administrative Court of Appeal heard the

applicant's eldest daughter, V. In addition, the courts had regard to

written submissions. Thus, the courts cannot be said to have intervened

without adequate knowledge of the case.

In the light of the foregoing the Commission finds that the

taking into care of R and N was supported by relevant and sufficient

reasons and that, having regard to their margin of appreciation, the

Swedish authorities were reasonably entitled to think that it was

necessary to take the children into care. Accordingly, the Commission

concludes that the relevant decisions can reasonably be regarded as

"necessary in a democratic society" within the meaning of Article 8

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

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber Acting President of the Second Chamber

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

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BURLIND v. SWEDEN

BURLIND v. SWEDEN

LEXI