Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19762/92

by Ellen ASPLUND

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 September 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

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 7 August 1991 by

Ellen ASPLUND against Sweden and registered on 24 March 1992 under file

No. 19762/92;

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

of Procedure of the Commission;

Having regard to :

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

Commission;

- the observations submitted by the respondent Government on

16 March 1993 and the observations in reply submitted by the

applicant on 2 June 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen born in 1942 and resident in

Stockholm. She is a nurse by profession. Before the Commission she is

represented by Mr. Lennart Möller, a lawyer practising in Stockholm.

This is the applicant's second application to the Commission. The

first one (No. 13372/88) concerned inter alia the placement of the

applicant's son Morgan in public care in 1987. It was declared

inadmissible on 12 July 1989.

The facts of the present case, as submitted by the parties, may

be summarised as follows.

Particular circumstances of the case

a. The applicant's custody of and access to Morgan

Together with D.J. the applicant has a son, Morgan, born out of

wedlock on 21 November 1979. The applicant's relationship with D.J.

ended in 1982. Morgan remained with the applicant, his then legal

custodian. In 1984 D.J. was provisionally granted visiting rights to

Morgan. In January 1988 the District Court (tingsrätten) of Stockholm

transferred custody of Morgan to D.J. The applicant was granted certain

visiting rights. The visits were initially to take place in the

presence of a third person appointed by the social welfare authorities.

In December 1988 the applicant, when exercising her rights to

visit to Morgan, left with him for Norway, where they stayed until

January 1990, when Morgan was returned to D.J. through enforcement

measures. According to the applicant, it had been Morgan's wish to

leave D.J.

In February 1990 the applicant, when again exercising her rights

to visit Morgan, took him to her home. According to the applicant,

Morgan had subsequently refused to go back to D.J., stating that he had

been beaten by him. Morgan was again returned to D.J. through

enforcement measures.

In March 1990 the applicant requested that custody of Morgan be

transferred to her. D.J., on the other hand, requested that the

applicant's visiting rights be revoked. The parties agreed to request

a fresh child psychiatric examination of Morgan.

On 25 April 1990 the District Court of Sollentuna held an oral

preparatory hearing in the case. According to the applicant, Morgan had

told a representative of the social authorities, who had met him on

several occasions, that he wished to live with the applicant. The

applicant referred to a written statement by that representative.

On 20 June 1990 the District Court provisionally ordered that

D.J.'s custody of Morgan should be maintained. It further provisionally

revoked the applicant's visiting rights pending the outcome of the case

or an agreement between the parties. It also requested an opinion from

the Social Welfare Board (socialnämnden) of Upplands-Väsby and a fresh

child psychiatric examination of Morgan. The applicant's appeal was

rejected by the Svea Court of Appeal (Svea hovrätt) on 6 August 1990

without any further appeal being open to her.

From 26 August 1990 to 4 September 1990 Morgan again stayed with

the applicant. According to her, he had run away from D.J. He was again

returned to D.J. through enforcement measures.

In an opinion of 4 September 1990 Mr. Lars Billing, a child and

youth psychologist, found nothing to support the social authorities'

view that Morgan had been incited by the applicant to run away from

D.J. He further referred to an interview made with Morgan according to

which he had run away because he had been beaten by D.J. on up to

thirty different occasions, and that the reason for his second runaway

was that he had unsuccessfully tried to contact the applicant by letter

and telephone.

According to the Government, Mr. Billing's opinion has never been

submitted to the social authorities.

On 20 December 1990 the applicant requested that the Social

Welfare Board take measures so as to enable her to visit Morgan.

On 12 April 1991 the applicant requested that the District Court

hold a new oral preparatory hearing in order to hear Morgan himself.

She also requested access to Morgan.

The child psychiatric report submitted to the District Court on

29 May 1991 included an opinion by Dr. Bodil Guldberg, a specialist in

child psychiatry, who had met the applicant twice, D.J. twice and D.J.

and Morgan together once. The opinion concluded in a recommendation

that Morgan should undergo therapy.

The applicant objected to Dr. Guldberg's opinion, as she had not

been interviewed together with Morgan. She further renewed her request

that Morgan himself be heard by the Court.

In a further opinion of 12 September 1991 to the District Court

Dr. Guldberg considered that it would be more advantageous to Morgan

that he live with D.J. and have a regular contact with the applicant.

In its opinion of 7 January 1992 to the District Court the Social

Welfare Board recommended that custody of Morgan be entrusted with D.J.

alone and that the applicant be granted visiting rights.

As from February 1992 certain access between the applicant and

Morgan took place in the presence of a third person appointed by the

Social Welfare Board.

On 20 March 1992 the District Court postponed its examination of

the case until 31 May 1992, awaiting further access arrangements to be

proposed by the Social Welfare Board.

On 21 May 1992 the District Court of Stockholm convicted the

applicant on three counts of aggravated child abduction (grov

egenmäktighet med barn), once in 1988 and twice in 1990, and sentenced

her to a conditional prison sentence and 3.000 SEK in fines.

On 23 June 1992 the District Court of Sollentuna postponed its

examination of the case until 31 August 1992, awaiting the meetings

between the applicant and Morgan fixed by the Social Welfare Board on

2 June 1992. The applicant and Morgan had met or were to meet on

17 June, 7, 8, 14, 15 and 17 July and 30 August 1992, each day for

between three and ten hours and in the presence of a social welfare

officer.

On 10 September 1992 the responsible social welfare officers

informed the District Court that the access arrangements had been

complied with on 17 June and 7 July 1992. On 8 July 1992, however, the

applicant had again demanded that Morgan come and stay with her. On

13 July 1992 she had informed the social welfare officers of her

dissatisfaction with the access arrangements and had cancelled the

meetings with Morgan on 14, 15 and 17 July 1992. Morgan had

subsequently declared that he no longer wished to meet the applicant.

According to the applicant, she was unable to meet Morgan on 14,

15 and 17 July 1992 due to illness. She also asserts that Morgan's

objection to meeting her was the result of D.J.'s threat to have Morgan

placed in public care if he met her. She finally asserts that Morgan

has been assaulted by D.J. and refers to D.J.'s conviction of assault

in 1983.

On 3 November 1992 the social welfare officers informed the

District Court that Morgan was persisting in his wish not to meet the

applicant.

On 25 November 1992 the District Court held a further oral

preparatory hearing in the case. The applicant stated, inter alia, that

she had spoken to Morgan over the telephone on several occasions.

b. Morgan's placement in public care

From June 1987 to February 1988 Morgan was placed in public care,

the care order having acquired legal force following the refusal of the

Supreme Administrative Court (Regeringsrätten) on 10 July 1987 to grant

the applicant leave to appeal. The further facts underlying the care

order may be found in the Commission's decision as to the admissibility

of the applicant's above-mentioned first application (No. 13772/88).

During the care period and subsequently Morgan lived with D.J.

In August 1987 the applicant was prohibited pursuant to the

public care legislation from having access to Morgan.

In an opinion of November 1987 Dr. Rudolf Schlaug, a

psychiatrist, criticised the child psychiatric investigation forming

the basis for Morgan's placement in public care, considering that the

opinion showed serious deficiencies.

In an opinion of March 1988 Dr. Bo Edvardsson, a psychologist,

also criticised the child psychiatric investigation, considering that

the authorities had been prejudiced when concluding that Morgan had

been in need of public care.

Relevant domestic law

a. Custody

From its birth a child is in the custody of the mother alone if

its parents are not married to each other (Chapter 6, Section 3 of the

Parental Code (föräldrabalken)). If a child is in the custody of only

one of the parents and the other parent wishes custody to be

transferred to him or her, the competent court shall, in accordance

with the interests of the child, entrust the custody to the other

parent or, if joint custody is requested, entrust the custody to both

parents unless one of the parents disagrees to such an arrangement

(Section 6).

b. Access

It is the responsibility of the child's custodian to ensure, as

much as possible, the child's need of access to the parent who is not

the child's custodian. If the child's custodian objects to the access

requested by the parent who is not the child's custodian, the court

shall, on an action being brought by that parent, determine the

question of access in accordance with the child's interests.

c. Court procedure

The court shall ensure that questions of custody and access are

adequately investigated and may not determine a case unless the

competent social welfare board has been given the opportunity to impart

information. The board has an obligation to submit any relevant

information it may have to the court. The court may also request that

the board or some other authority conduct an investigation of the

matter. The court may issue guidelines for such an investigation and

is obliged to make sure that the investigation is conducted speedily.

The child may also be heard in court if there are special reasons for

doing so and it is obvious that such a hearing may not prove harmful

to the child (Chapter 6, Section 19).

The court may issue a provisional order concerning custody or

access, in accordance with the interests of the child, pending a

judgment or a decision with legal force. Such provisional orders may

be issued without a prior main hearing (huvudförhandling). The other

party, however, shall always be given the opportunity to state his

opinion in the matter.

Appeals against provisional orders concerning custody or access

are lodged separately with the competent court of appeal, whose

decision is final (Chapter 20, Sections 11 and 12).

COMPLAINTS

1. The applicant complains under Article 8 of the Convention of

unjustified interference with her right to respect for her family life.

She submits

a) that subsequent expert reports have shown that Morgan's

placement in public care was not justified;

b) that the prohibition of her access to Morgan during his public

care was unjustified;

c) that the provisional revocation of her visiting rights in the

course of the custody and access proceedings was unjustified and lasted

for an excessive period of time; and

d) that as a result of the authorities' failure to actively work

for a reunification of the applicant and Morgan she now has de facto

no access to him.

2. The applicant further invokes Articles 3, 5, 6 and 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 August 1991 and registered

on 24 March 1992.

On 12 January 1993 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the complaint under Article 8 of the Convention.

The Government's observations were submitted on 16 March 1993.

Following an extension of her time-limit the applicant's observations

in reply were submitted on 2 June 1993.

On 13 May 1993 the applicant was granted legal aid.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention of unjustified interference with her right to respect for

her family life. She submits

a) that subsequent expert reports have shown that Morgan's

placement in public care was not justified;

b) that she was denied access to Morgan during his public care;

c) that the provisional revocation of her visiting rights in the

course of the custody and access proceedings was unjustified and lasted

for an excessive period of time; and

d) that as a result of the authorities' failure to actively work

for a reunification of the applicant and Morgan she now has de facto

no access to him.

Article 8 (Art. 8) of the Convention reads:

"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 Government submit that all complaints under Article 8

(Art. 8) are inadmissible. As regards, in particular, the applicant's

present situation, the Government submit that she is not formally

prohibited from having access to Morgan. On the contrary, the

authorities have attempted to re-establish the contact between the two.

The social authorities are prepared to appoint a third person to assist

him and the applicant during future meetings, should he again wish to

meet her. The State cannot, however, be held responsible for Morgan's

present wish not to see her. Moreover, her allegations that Morgan is

being assaulted by his father have led to several thorough

investigations also involving experts in child psychiatry. These

investigations have not shown any support for the applicant's

assertions.

The applicant submits that under Article 8 (Art. 8) of the

Convention the authorities have an obligation to take positive measures

for the re-uniting of the applicant and Morgan. However, as a result

of the decision of 20 June 1990 to provisionally revoke the applicant's

visiting rights, her and Morgan's situation have de facto remained

unchanged despite the termination of his public care. The revocation

of her visiting rights contravened the aim of re-uniting the applicant

and Morgan and was in force for an excessive period of time. The fear

of the applicant again repeating her criminal behaviour could have been

prevented by ordering access to take place in the presence of a third

person. Moreover, it has not been shown that Morgan suffered from any

severe psychological conflicts as a result of the applicant's previous

access.

The applicant finally maintains that Morgan continues to be

prevented by D.J. from contacting her, D.J. threatening to have Morgan

placed in public care. Practically all letters from the applicant to

Morgan have allegedly been destroyed by D.J.'s wife before reaching

him.

a) Morgan's placement in public care

The Commission observes that a complaint concerning the public

care of Morgan made in the applicant's previous application No.

13772/88 was declared inadmissible on 12 July 1989 as being manifestly

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

Convention. It recalls that under Article 27 para. 1 (b) (Art. 27-1-b)

of the Convention it shall not deal with any petition submitted under

Article 25 (Art. 25) which is substantially the same as a matter which

has already been examined by the Commission and if it contains no

relevant new information.

The Commission notes that the expert opinions of 1 November 1987

and 14 March 1988, which the applicant appears to consider as relevant

new information warranting a re-examination of Application No.

13772/88, are posterior to the placement of Morgan in public care and

the subsequent appeal proceedings, but anterior to the Commission's

decision on the admissibility of Application No. 13772/88 on

12 July 1989. The Commission cannot, however, accept, as a basis for

reconsidering an application, submissions which could clearly have been

presented by the applicant in her previous application (cf.

No. 13365/87, Dec. 8.3.88, D.R. 55 p. 294). Accordingly, the expert

opinions cannot be considered as such relevant new information as

required by the Convention for the purpose of having a previous

application re-examined.

It follows that this complaint must be rejected in accordance

with Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

b) The prohibition of the applicant's access to Morgan during

his public care

The Commission is not required to decide whether or not the facts

alleged by the applicant disclose any appearance of a violation of

Article 8 (Art. 8) of the Convention, as Article 26 of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken".

The Commission notes that the prohibition of access was imposed

on the applicant in August 1987, but that it became obsolete when the

public care of Morgan was terminated in February 1988. The present

application was, however, lodged only on 7 August 1991, that is, more

than six months after the termination of the care. Furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

It follows that this complaint has been introduced out of time

and must be rejected in accordance with Article 27 para. 3

(Art. 27-3) of the Convention.

c) The provisional revocation of the applicant's visiting

rights pending the outcome of the custody and access

proceedings

Insofar as the complaint concerns the justification as such of

the District Court's decision of 20 June 1990 to provisionally revoke

the applicant's right to visit Morgan, the Commission is again not

required to decide whether or not the facts alleged by the applicant

disclose any appearance of a violation of Article 8 (Art. 8) of the

Convention. The Commission refers to the above-mentioned six months'

rule as stipulated in Article 26 (Art. 26) of the Convention and

considers that the final decision in respect of the present complaint

is the judgment of the Svea Court of Appeal rendered on 6 August 1990

on the applicant's appeal. The present application was, however, lodged

only on 7 August 1991, that is, more than six months after that date.

Furthermore, an examination of the case does not disclose the existence

of any special circumstances which might have interrupted or suspended

the running of that period.

It follows that this aspect of the complaint has also been

introduced out of time and must be rejected in accordance with Article

27 para. 3 (Art. 27-3) of the Convention.

Insofar as the complaint concerns the duration of the provisional

revocation of the applicant's visiting rights, the Commission observes

that it lasted about one year and a half and de facto ended in February

1992, when some access took place. The Commission further notes that

the applicant could at any time have challenged the provisional

revocation by referring to new relevant circumstances. It appears,

however, that she did not avail herself of this possibility.

In these circumstances the Commission cannot find any violation of

Article 8 (Art. 8).

It follows that this aspect of the complaint must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

d) The complaint of continuing de facto lack of access to

Morgan

The Commission considers that this complaint raises the question

whether there has been a lack of respect for the applicant's right to

respect for her family life. It recalls that the notion of 'respect'

enshrined in Article 8 (Art. 8) is not clear-cut. Particularly

difficult problems arise where the positive obligations implicit in

that concept are concerned. Its requirements will vary considerably

from case to case according to the practices followed and the

situations obtaining in the Contracting States. In determining whether

or not such an obligation exists, regard must be had to the fair

balance that has to be struck between the general interest and the

interests of the individual as well as to the margin of appreciation

afforded to the Contracting States (Eur. Court H.R., B. v. France

judgment of 25 March 1992, Series A no. 232-C, pp. 47 et seq., paras.

44 et seq.).

The Commission considers that the applicant's allegations that

Morgan is being prevented from contacting her are unsubstantiated. It

further observes that, as stated by herself before the District Court

on 25 November 1992, she herself is not prevented from having access

to Morgan by telephone. Her further allegation that correspondence from

her to Morgan has been stopped has also remained unsubstantiated.

The Commission further considers it established that, since July

1992, Morgan, now almost fifteen years old, has not wished to meet her.

The Commission finds no indication that the Swedish authorities have

failed to make the efforts which could reasonably be expected in order

to arrange meetings between Morgan and the applicant. In such

circumstances the applicant's interest in meeting Morgan must be

considered to be outweighed by his own wishes, the interests of the

child being of paramount importance under Article 8 (Art. 8) of the

Convention as well as under the Parental Code and also having regard

to the fact the custody and access proceedings are still pending.

Having regard to these various elements, the Commission finds

that a fair balance has been, and is presently being, struck between

the conflicting interests at stake in the present case (cf., contra,

T.H. v. Finland, Comm. Report 22.10.93). Accordingly, there has been

no lack of respect for the applicant's family life and the complaint

therefore discloses no appearance of a violation of Article 8 (Art. 8)

of the Convention.

It follows that this complaint must also be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The Commission has further examined the complaints under Articles

3, 5, 6 and 13 (Art. 3, 5, 6, 13) of the Convention. However, in so far

as the matters complained of have been substantiated and are within its

competence, the Commission finds that they do not disclose any

appearance of a violation of those provisions.

It follows that this part of the application must be rejected in

accordance with 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 President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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ASPLUND v. SWEDEN

ASPLUND v. SWEDEN

LEXI