Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22378/93

by Anna SALOMONSSON-DOBOROWICZ

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 January 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

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 December 1992

by Anna SALOMONSSON-DOBOROWICZ against Sweden and registered on

28 July 1993 under file No. 22378/93;

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

of Procedure of the Commission;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1943, resides at

Södertälje, Sweden. She is unemployed.

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

summarised as follows.

The applicant came to Sweden from Poland in the early 1980's. She

married a Swedish man and they had two sons, A, born in 1982 and P,

born in 1983. In 1987 the couple divorced and the applicant was granted

sole custody of A and P. In 1990 she married a Polish man and the same

year they had a son, W. The applicant's present husband lives in

Poland. The applicant also has adult children from an earlier

marriage.

On 22 January 1992 the Chairman of the Municipal District Council

(kommundelsnämnden - "the Council") of Geneta, Södertälje 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 - "the 1990 Act"), immediately to take the three children into

public care on a provisional basis. The reason for the decision was

that, owing to a deterioration of the applicant's mental health, there

were such risks with regard to the children's health and development

that a court decision could not be awaited. According to the Council,

it had received reports of maltreatment of the children from the father

of A and P and from the personnel of the children's day-care centre.

Moreover, the applicant had been offered supporting measures by the

Council but had allegedly been reluctant to cooperate with the

authorities.

The Council's decision was the following day brought before the

County Administrative Court (Länsrätten) of the County of Stockholm,

which appointed counsel for the applicant and the children. The

applicant did not consent to the decision. She claimed that it was

based on an insufficient investigation and denied that the children

were not properly cared for or that her mental health had been or was

deteriorating. Moreover, she was willing to cooperate with the

authorities in order to straighten out all misunderstandings that might

have occurred due to her insufficient command of Swedish. Counsel for

the children, however, approved of the taking into care. On

30 January 1992 the Court confirmed the Council's decision.

Between 22 January and 20 February 1992, the three children and,

on a voluntary basis, the applicant were placed in a children's home

in Geneta for an investigation of their situation. In its report, the

children's home stated, inter alia, that the applicant took good care

of her children and that they were close to each other, but that she

was unbalanced and under severe mental stress and that her mood changed

significantly when she was confronted with difficulties, in which

situations she became uncommunicative and very upset. On one such

occasion she left the home with W. While the children's home had not

noticed any problems with W, the report stated that A and P were both

suffering from suppressed sadness and anger. The children's home

concluded that the family was in need of various supporting measures,

but did not take a stand on whether the applicant and her children

should be separated. In an opinion of 15 February 1992, L.K., a

psychologist who had met A and P three times at the children's home,

stated, inter alia, that A and P did not receive adequate support for

their emotional problems from the applicant or other people close to

them. The psychologist did not find that P had any serious emotional

problems, but as concerns A she feared permanent problems. She made the

following conclusions:

(translation)

"1. If the family situation is such that [the applicant]

understands the children's needs and approves of supporting

measures, the children's needs can be satisfied by

preventive measures such as a contact family or a contact

person.

2. If [the applicant], on the contrary, does not understand

the children's needs and denies the need for support, there

is a risk of retardation in the children's development.

3. If [the applicant] has such mental problems that she is

not aware of her illness, the above-mentioned supportive

measures are not sufficient to satisfy the children's

needs."

After a meeting at the Council on 17 February 1992, at which the

applicant, her counsel and the children's counsel were present and

heard, the Council applied to the County Administrative Court for a

care order concerning the three children.

After the applicant had again left the children's home on

20 February 1992, the Council found that the home could not guarantee

the children's security and they were therefore moved the following day

to an investigation home at Torshälla. A and P were soon thereafter

placed in the foster home of an older half-brother, the applicant's

adult son. W remained at the investigation home, where he was soon

joined by the applicant.

On 5 and 17 March 1992, the County Administrative Court held

hearings in the case, at which the applicant was present and assisted

by her counsel. The children were represented by counsel. During the

proceedings, the Court heard representatives of the Council, counsel

for the children, the applicant and, at her request, her adult son. The

applicant stated, inter alia, that she was aware of the need of

supportive measures and that she would accept to see a psychologist

although she did not find it necessary. In addition to the oral

testimony, the Court had at its disposal a report from the Council and

the psychologist's statement.

By judgment of 6 April 1992, the Court decided that A and P

should be taken into public care pursuant to Section 2 of the 1990 Act,

which provides that such orders may be made in cases where, due to

physical abuse, exploitation, inadequate care or some other

circumstances in the home, there is a clear risk of the young person's

health and development being impaired. The Court, however, rejected the

request for public care of W. The Court stated, inter alia, that the

applicant's care of her children was inadequate and that there was a

clear risk that A's and P's health and development would be impaired.

The Court further found that the applicant's approval of voluntary

supportive measures did not sufficiently guarantee that A and P would

receive the necessary care. As concerns W, the Court, however, found

that there was at that moment no clear risk of impairment of his health

and development. The applicant appealed against the judgment.

In a report dated 26 April 1992, the investigation home at

Torshälla gave an account of its observations during the period

21 February - 7 April 1992, during which the applicant and W had stayed

at the home. The report stated, inter alia, that the problems that had

emerged were mainly due to the applicant's cultural background,

communication problems and her difficulties, in a vulnerable situation,

to accept adequate help than her inability to take good care of her

children.

On 14 July 1992 the Administrative Court of Appeal (Kammarrätten)

of Stockholm held a hearing, at which the applicant, her ex-husband,

the children's counsel and representatives of the Council were heard.

The applicant was, at her own request, not represented by counsel but

was assisted by an interpreter.

By judgment of 20 July 1992, the Court rejected the appeal on the

following grounds:

(translation)

"According to [the Council's] written report, inter alia

the following has occurred in [the applicant's] home. [A

and P] have been assaulted. They have been beaten by [the

applicant] using a hanger and a belt. She has threatened

both her ex-husband and [A] with a knife. She has on

several occasions spoken in a violent manner to the boys,

her ex-husband and several other persons. She has, among

other things, threatened to kill herself and the boys. In

October/November 1989 [the applicant] went to Poland and

left the boys with a neighbour saying that she would come

for them in four days. Still after more than fifteen days

she had not informed the neighbour that she would not

return until later. [The applicant] has denied the

truthfulness of the report. The information in the report

is based on continuously recorded notes and it has been

furnished by several persons independent of each other. The

statements are mutually concordant. At the hearing of [the

Court], the children's father, [S.S.], has confirmed that

the report's summary of what he has said is correct. He has

clearly and tangibly described many years of bad

conditions. [The Court] considers, in these circumstances,

that [the applicant's] flat denial is not credible. [The

Court] will therefore base its opinion on the Council's

report.

[The Court] finds this to show that [the applicant's]

mental instability is such that there is a clear risk that

A's and P's development will be impaired. The requirements

for care according to [the 1990 Act] are met, as [the

applicant] has not consented to the necessary care." The

applicant appealed to the Supreme Administrative Court

(Regeringsrätten) which, on 12 November 1992, refused leave

to appeal.

COMPLAINTS

1. The applicant complains, under Article 6 of the Convention, that

the Council and the courts have co-operated and that the courts have

decided without sufficient reason or evidence.

2. The applicant contends that the taking into care of her children

has violated her rights under Article 8 of the Convention.

THE LAW

1. The applicant alleges that the Council and the courts have

co-operated and that the courts have decided without sufficient reason

or evidence. She invokes Article 6 (Art. 6) of the Convention, which,

in its relevant parts, reads as follows:

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

is entitled to a fair and public hearing ... by an

independent and impartial tribunal ..."

The applicant submits that her children were taken into care

without sufficient reason or evidence, as the courts' decisions were

based on the Council's faulty investigation.

As far as the applicant alleges that the courts have decided

without sufficient reason or evidence, the Commission recalls that, in

accordance with Article 19 (Art. 19) of the Convention, its only task

is to ensure the observance of the obligations undertaken by the

Parties to the Convention. In particular, it is not competent to deal

with a complaint concerning errors of law or fact allegedly committed

by domestic courts, except where it considers that such errors might

have involved a possible violation of any of the rights and freedoms

set out in the Convention or its Protocols. The Commission refers, on

this point, to its established case-law (cf., e.g., No. 10153/82,

Dec. 13.10.86, D.R. 49 p. 67, and No. 12013/86, Dec. 10.3.89, D.R. 59

p. 100).

It is true that in this case the applicant also alleges that the

Council and the courts have co-operated. This complaint calls into

question the independence and impartiality of the courts.

However, the Commission notes that the applicant's appeals were

examined by the County Administrative Court, the Administrative Court

of Appeal and, in deciding whether to grant leave to appeal, the

Supreme Administrative Court. Both the County Administrative Court and

the Administrative Court of Appeal held oral hearings. The applicant

was present at those hearings and had the opportunity of presenting any

arguments or documents which, in her opinion, were of importance to the

outcome of the case. Having regard to these facts and as there is

nothing in the file to suggest that the courts were not independent or

impartial, the Commission finds that the complaint does not disclose

any appearance of a violation of the applicant's rights under Article 6

(Art. 6) of the Convention.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant further complains that the taking into care of her

children constitutes an unjustified interference with her right to

respect for her family life. She invokes 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 or morals, or for the protection of the rights and

freedoms of others."

The Commission finds that the taking into care of the applicant's

children interfered with her right to respect for her family life as

ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It must

therefore be examined whether this interference was justified under the

terms of Article 8 para. 2 (Art. 8-2). In this respect the Commission

recalls that three conditions must be satisfied: the interference must

be "in accordance with the law", it must pursue one or more of the

legitimate aims enumerated in para. 2 and it must be "necessary in a

democratic society" for these aims.

As regards the first condition, the Commission finds that the

decision by the courts to take the applicant's children into public

care was in conformity with Swedish law, namely Section 2 of the 1990

Act.

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" (cf. Eur. Court H.R., Olsson judgment of

24 March 1988, Series A no. 130, 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. 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. above-mentioned Olsson judgment, pp. 31-32,

paras. 67-68). Furthermore, certain procedural requirements are

implicit in Article 8 (Art. 8). As regards decisions in child-care

matters, the parents must have been involved in the decision-making

process, seen as a whole, to a degree sufficient to provide them with

the requisite protection of their interests (cf. Eur Court H.R., W v.

the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29,

para. 64).

The Commission recalls that both the County Administrative Court

and the Administrative Court of Appeal held hearings and that the

Council, before its decision to apply for the applicant's children to

be taken into care, held a meeting. On all these occasions the

applicant was present and heard. At the Council meeting and at the

hearing of the County Administrative Court she was assisted by legal

counsel. At the hearing of the Administrative Court of Appeal she was,

at her own request, not assisted by counsel, but was assisted by an

interpreter.

The Commission, therefore, finds that the applicant was

sufficiently involved in the decision-making process.

As regards the taking into care of A and P, the County

Administrative Court found that the applicant's care of her children

was inadequate and that there was a clear risk that their health and

development would be impaired. The Administrative Court of Appeal found

that the applicant's mental instability was such that there was a clear

risk for impairment of A's and P's development.

These conditions are clearly relevant to a decision to take

children into care. However, as such a decision is a serious

interference with the rights protected under Article 8 para. 1

(Art. 8-1) of the Convention, it must be supported by sufficiently

sound and weighty considerations in the interests of the children. In

order to determine whether in the present case the reasons can be

considered "sufficient" for the purpose of Article 8 (Art. 8), the

Commission must further examine the evidence that was available to the

courts (cf. No. 12651/87, Dec. 9.5.89, D.R. 61 p. 176).

In this respect the Commission recalls that the courts had at

their disposal a report by the Council and statements by a psychologist

and by two children's homes. The Council's report was based on

continuous and corresponding information given by several independent

persons. However, the courts' judgments were not founded solely on

written documentation, but also on statements made at the hearings. In

addition to the applicant and her counsel, the children's counsel and

the representatives of the Council, the County Administrative Court

heard the applicant's adult son and the Administrative Court of Appeal

heard the applicant's ex-husband. Thus, the courts had the benefit of

their own impressions of the persons involved.

The Commission further notes that the psychologist who had met

A and P stated that they did not receive adequate support for their

emotional problems and that she feared that A would get permanent

problems. Moreover, after an evaluation of the available evidence, the

Administrative Court of Appeal decided to base its opinion on the

Council's report, which inter alia stated that the applicant had

assaulted and threatened to kill A and P.

Although the opinions expressed in the different statements

varied to some extent, the Commission finds that the decision to take

A and P into care was supported by "sufficient reasons" and that,

having regard to their margin of appreciation, the Swedish authorities

were entitled to think that it was necessary to take A and P into care.

Accordingly the Commission concludes that the decision 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 also 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 to the Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G.H. THUNE)

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SALOMONSSON-DOBOROWICZ v. SWEDEN

SALOMONSSON-DOBOROWICZ v. SWEDEN

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