Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21078/92

by Doris Agneta LUNDBLAD

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 19 June 1991 by

Doris Agneta LUNDBLAD against Sweden and registered on 15 December 1992

under file No. 21078/92;

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

a. The particular circumstances of the case

The applicant, a Swedish citizen born in 1948 and residing in

Eskilstuna, Sweden, is on early retirement. She has a daughter,

Viktoria, born in 1979.

In a previous application (No. 14103/88, unpublished), which the

Commission declared inadmissible on 10 December 1990, the applicant

complained that her daughter had been kept in public care. She also

complained of the manner in which the initial care order had been

carried out and of the restrictions on access during the care. The

complaint concerning restrictions on access was declared inadmissible

on the ground that the applicant had failed to comply with the

condition under Article 26 of the Convention to exhaust domestic

remedies, as she had not shown that she had appealed to the Supreme

Administrative Court.

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

be summarised as follows.

On 3 January 1987 the Deputy Chairman of the Social Council

(socialnämnden) of Enköping decided provisionally to take Viktoria into

care pursuant to Section 6 of the 1980 Act with Special Provisions on

the Care of Young Persons (lagen med särskilda bestämmelser om vård av

unga, 1980:621 - "the 1980 Act"). The decision was later confirmed by

the County Administrative Court (Länsrätten of the County of

Stockholm), and on 27 February 1987 that Court ordered that Viktoria

be taken into care. The applicant's appeal was rejected by the

Administrative Court of Appeal (Kammarrätten of Stockholm), and she was

later refused leave to appeal to the Supreme Administrative Court

(regeringsrätten). Subsequent requests that the care be terminated were

rejected by the Social Council and by the County Administrative Court

and the Administrative Court of Appeal.

Viktoria has lived in a foster home since 30 March 1987. On

25 September 1990 the Social Council prohibited the applicant's access

to her, including telephone conversations, pending a police

investigation concerning suspected sexual abuse of Viktoria by the

applicant. In January 1991 the prosecutor decided not to indict the

applicant. On 6 March 1991 the Social Council rejected the applicant's

request that the care be terminated and decided that the applicant

should temporarily have no personal contact with her daughter.

On 18 June 1991 the County Administrative Court rejected the

applicant's appeal against the decision of 6 March 1991. As regards the

prohibition of access, the Court referred to a statement by a child

psychologist, B.L., who had met Viktoria on two occasions, in December

1990 and January 1991, at which Viktoria had expressed that she did not

want to have any contact with her mother until the autumn of 1991 and

that she did not want to meet her alone but in the presence of a social

worker, preferably in a café for about an hour every three months. The

psychologist, who found Viktoria's suggestions to be genuine and

considered, concluded that it was not in Viktoria's best interest to

grant the applicant access to a greater extent than had been suggested

by Viktoria herself.

By judgment of 15 April 1992, the Administrative Court of Appeal

rejected the applicant's appeal as regards termination of the public

care and concluded that it was necessary to regulate her access to her

daughter. The Court, however, found it important to bring about

contacts between the applicant and the daughter as soon as possible.

A total prohibition of access was therefore not acceptable. The Court

found it impossible to regulate in detail how and when these contacts

were to take place, but stated that great importance should be attached

to Viktoria's wishes. Accordingly, the Court instructed the Social

Council to regulate the question of access in accordance with what

Viktoria had expressed in her conversations with the psychologist. The

Court further found it advisable that contact be resumed between mother

and daughter through telephone calls.

On 5 June 1992 the Supreme Administrative Court refused leave to

appeal against the judgment of the Administrative Court of Appeal.

On 8 May 1992 the applicant and her daughter met in the presence

of two social workers at the home of an elderly woman whom the

applicant knew. The meeting lasted for little more than an hour. On

12 August 1992 the Social Council decided that the next meeting was to

take place either in August 1992, at the home of Viktoria's brother,

or in October the same year. The applicant's appeal against this

decision was rejected by the County Administrative Court on 15 October

1992.b. Relevant domestic law

Before 1 July 1990, compulsory care could be ordered under the

1980 Act. On that date it was replaced by new legislation (lagen med

särskilda bestämmelser om vård av unga, 1990:52 - "the 1990 Act"), the

relevant provisions of which are essentially the same. Section 16 of

the 1980 Act and Section 14, subsection 2 of the 1990 Act read as

follows:

(translation)

"If it is necessary in order to achieve the purposes of care

measures taken under this Act, the Social Council may

1. decide how the right of access to the young person shall

be exercised by a parent or other person who has custody of him

..."

An appeal against a decision by the Social Council to regulate

the right of access lies to the County Administrative Court, the

Administrative Court of Appeal and, with leave, the Supreme

Administrative Court.

COMPLAINTS

The applicant alleges that the Social Council's decisions of

25 September 1990 and 6 March 1991 to prohibit her access to her

daughter, including telephone conversations, have violated her rights

under Article 8 of the Convention. She maintains that there was no

reason to terminate her access to her daughter, as the accusation of

sexual abuse was groundless.

THE LAW

The applicant complains that the decisions to restrict her access

to her daughter have violated 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 or morals, or for the protection of the

rights and freedoms of others."

In its decision to declare the applicant's previous application

inadmissible, the Commission concluded, as far as the question of

access was concerned, that domestic remedies had not been exhausted.

The applicant has since exhausted these remedies by appealing to the

Supreme Administrative Court. Given this relevant new information the

application, to the extent that it is substantially the same as the

applicant's previous application, is not inadmissible under

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

With regard to the applicant's complaint, the Commission recalls

that the mutual enjoyment by parent and child of each other's company

constitutes a fundamental element of family life, and the natural

family relationship is not terminated by reason of the fact that the

child is taken into public care. Moreover, telephone conversations

between family members are covered by the notions of "family life" and

"correspondence" within the meaning of Article 8 (Art. 8) (cf., e.g.,

Eur. Court H.R., Margareta and Roger Andersson v. Sweden judgment of

25 February 1992, Series A no. 226-A, p. 25, para. 72). It follows that

the restrictions on the applicant's access to her daughter in the

present case amounted to interferences with the applicant's right to

respect for her family life and correspondence.

Such interferences are justified within the meaning of Article

8 (Art. 8) if they are "in accordance with the law", have a legitimate

aim under Article 8 para. 2 (Art. 8-2) and are "necessary in a

democratic society" for the aforesaid aim.

The Commission recalls that by judgment of 15 April 1992, the

Administrative Court of Appeal lifted the total prohibition of access

and found it advisable that contact be resumed between mother and

daughter through telephone calls. The Court, however, found it

necessary to regulate the applicant's access to her daughter in

accordance with the wishes expressed by the daughter.

The Commission considers that the Social Council and, on appeal,

the different administrative courts were empowered to regulate meetings

between the applicant and her daughter under Section 16 of the 1980 Act

or Section 14, subsection 2 of the 1990 Act, and that, accordingly, the

regulations at issue were "in accordance with the law". As far as

telephone conversations were concerned, it is not clear whether the

applicant could talk to her daughter on the telephone without any

restrictions after the judgment of the Administrative Court of Appeal.

However, the Commission is in any event satisfied that if such

restrictions remained, they were also "in accordance with the law". In

this regard, the Commission recalls that it is primarily for the

national authorities, notably the courts, to interpret and apply

domestic law (cf. Margareta and Roger Andersson judgment, loc. cit.,

pp. 26-28, paras. 80-85).

The Commission further considers that the restrictions at issue

pursued the legitimate aim of protecting the health and rights of the

applicant's daughter.

As regards the question of whether the restrictions on access

were "necessary in a democratic society", the Commission recalls that

this condition implies that the interferences correspond to a pressing

social need and, in particular, that they are proportionate to the

legitimate aim pursued. The Commission must determine whether the

reasons adduced to justify the interferences at issue were "relevant

and sufficient". In this respect, a margin of appreciation is left to

the Contracting States (cf. Eur. Court H.R., Olsson judgment of

24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68). The

Commission further recalls that in cases like the present a parent's

and child's right to respect for family life under Article 8 (Art. 8)

includes a right to the taking of measures with a view to their being

reunited (cf. Olsson judgment, loc. cit., pp. 36-37, para. 81, and

Margareta and Roger Andersson judgment, loc. cit., p. 30, para. 91).

The Commission notes that Viktoria was almost twelve years old

when she met the psychologist and expressed her wish not to have any

contact with her mother until the autumn of 1991 and only limited

contact thereafter. The psychologist found that Viktoria's suggestions

were genuine and considered, and concluded that they should be

respected. The Commission therefore finds that there were grounds for

the Administrative Court of Appeal to regulate the applicant's access

in accordance with Viktoria's wishes. To order more frequent contacts

might, under the circumstances, very well have made future attempts to

reunite the applicant and her daughter impossible to realise. The

Commission is therefore satisfied that the reasons for the restrictions

at issue were relevant and sufficient for the ultimate aim of reuniting

the applicant and her daughter. They could thus reasonably be

considered "necessary in a democratic society".

The Commission concludes that the examination of the applicant's

complaints does not disclose any appearance of a violation of Article

8 (Art. 8) 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 President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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LUNDBLAD v. SWEDEN

LUNDBLAD v. SWEDEN

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