AS TO THE ADMISSIBILITY OF

                      Application No. 21111/92

                      by Ingegerd NILSSON

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 30 June 1993, the following members being present:

           MM.   S. TRECHSEL, President of the Second Chamber

                 G. JÖRUNDSSON

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

           Mr.   K. ROGGE, Secretary to the Second 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 11 August 1992 by

Mrs. Ingegerd Nilsson against Sweden and registered on 17 December 1992

under file No. 21111/92;

      Having regard to the information provided by the Government on

1 February 1993 and the applicant's comments in reply in February and

March 1993;

      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 applicant is a Swedish citizen born in 1943 and resident at

Malmö. She is a teacher by profession.

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

summarised as follows.

Particular circumstances of the case

      On 18 January 1989 the Western Social District Council (västra

socialnämnden) of the municipality of Malmö decided to place the

applicant's son Jonas, born in 1980, in public care in accordance with

Section 1, subsection 1 and subsection 2, no. 1 as well as Section 6

of the 1980 Act on the Care of Young Persons (lag 1980:621 med

särskilda bestämmelser om vård av unga, hereinafter "the 1980 Act").

The care order was issued following an incident during which the

applicant had behaved in a violent and confused manner against Jonas'

teacher.

      The decision was upheld by the County Administrative Court

(länsrätten) of Malmöhus County and subsequently upheld by the

Administrative Court of Appeal (kammarrätten) of Gothenburg. Leave to

appeal was refused by the Supreme Administrative Court

(regeringsrätten).

      Regard was had to an opinion of 10 February 1989 submitted by Dr.

G.T., Deputy Senior Medical Officer, and Dr. H.H., a psychologist, at

the request of the Social District Council and in which the following

was stated :

      (translation from Swedish)

      "... Jonas is the only child of [the applicant]. The parents

      separated in connection with [his] birth ... [Jonas'] father has

      founded a new family ..., following which [the applicant] has

      denied Jonas the right to meet him. She has ... developed signs

      of a chronic paranoid psychosis ... She has never worked since

      the birth of Jonas, but lived exclusively for him. Her social

      network has slowly diminished and now mainly consists of her

      parents ... In her medical records [it is said] that her

      personality started to change long before the birth of Jonas ...

      [She] has been considered by, among others, [teachers and other

      parents in Jonas'] pre-school and school as being very divergent

      (Note: Swe. "avvikande"). She ... still accompanies Jonas to

      school. Previously she would not ... allow him to have his meals

      in the school cafeteria ... He has never ... been allowed to play

      with other children ... An attempt to have Jonas undergo

      [psychiatric] treatment in 1986 did not succeed, as [the

      applicant] did not comply with the ... plan.

      ...

      What caused parents and teachers at [Jonas's] school to file a

      report was [his] strongly divergent, aggressive behaviour against

      his fellow-pupils. He would pinch them with pencils and run after

      them with pieces of glass in his hands, threatening to cut their

      throats. [He] expressed fantasies to the staff, such as to murder

      and drown children or break their arms ... In particular, [small]

      children's inability to let things alone and their curiosity

      provokes and irritates [him], as he needs to have rules and

      order.

      Jonas shows very little emotions ... He does not play with other

      children ... He only reacts in aggressive ways ... e.g. by making

      racist remarks ...

      Following the taking into public care of Jonas certain changes

      have been seen in his relations with others. He does not behave

      as aggressively at school ... His fear of dirt or bacteria has

      decreased considerably ...

      Lately he has lost some weight [and] seems somewhat sad and

      quiet. [This] is, in the circumstances, an adequate reaction.

      ...

      [A parent's] mental illness cannot always be said to influence

      a child negatively ... [M]any children develop quite normally ..

      Certain circumstances, however, strongly increase the risk of a

      negative development.

      ...[A]bove all, the degree of the personality disturbance is

      decisive for the parents' ability to care for their children.

      Another important factor is whether the parent is aware of [his

      or her] illness and [whether] the children are being affected by

      [his or her] morbid thoughts.

      Another important factor is the social network of the family.

      Children who do well live in families which have contacts with

      outside persons who can assist when necessary ...

      ... In the present case there are ... serious indications of a

      risk [of a negative development] ... . Jonas and [the applicant]

      have lived a very isolated life. [The applicant] has been unable

      to cooperate with the school and the school health care ... Much

      seems to indicate that [she] has a morbid reality perception

      which she is passing on to [Jonas]. She has cut off [his] contact

      with his biological father ... [a]nd does not allow [him] to

      create contacts with adults outside the family. She has not

      understood the importance of the fact that Jonas should be

      allowed to play ... freely. She has kept him inside whenever he

      has been free ...

      On the other hand, she well understands Jonas' physical needs and

      his need of linguistic stimulation ... It is clear that [she] is

      very fond of Jonas ... In her opinion she does everything in

      [his] interest.

      [The applicant] has now, for the first time, been undergoing

      psychiatric treatment and medication [to this effect] ...

      [In conclusion,] [the applicant] is suffering from a chronical

      paranoid psychosis alternatively a serious personality

      disturbance with paranoid features. As a result she has been

      unable to satisfy [Jonas'] needs adequately ... [D]ue to her

      inability to have normal social relations Jonas has developed a

      serious behavioural disturbance including an inability to relate

      to other children as well as an aggressive [and occasionally

      dangerous] behaviour. It is too early to determine whether ...

      the disturbance is caused by ... Jonas' adaptation to isolation

      and [the applicant's] reality perception or whether it is based

      on a personality disturbance. A fresh assessment subsequent to

      his placement in an environment supporting his need of contacts

      with adults and friends could clarify this.

      [The applicant's] ability to change is also difficult to assess.

      [A positive sign is] that her state of health seems to have

      improved to some extent as a result of her medication and

      treatment ... [A negative sign] is her lack of recognition of her

      illness and her [simulation capacity] as a result of which one

      cannot fully trust that a change in her behaviour will occur ...

      ...

      In view of the above we find that there are very strong reasons

      for applying [the 1980 Act] even without [the applicant's]

      consent."

      In a further opinion of 8 May 1989 submitted to the

Administrative Court of Appeal by Dr. V.R., Senior Medical Officer at

the psychiatric clinic of the General Hospital of Malmö, at the request

of the Social District Council, the following was stated :

      (translation from Swedish)

      "[Jonas] and [the applicant] were admitted to ... [our] clinic

      for child and youth psychiatry from 21 March to 5 April 1989.

      This opinion is based on observations of Jonas and [the

      applicant] in everyday social intercourse on the ward and on

      interviews with [the applicant].

      Jonas' contact with [the applicant] is characterised by a lack

      of emotional attachment. The contact is superficial and

      intellectual. Jonas' mental development is seriously threatened.

      He was showing clear difficulties in his contacts with people ...

      In contacts with other children [he] was somewhat directed by

      jealousy. [The applicant] could, in these situations, not support

      him, [n]or could she [prevent] his [occasional] destructive

      behaviour. Despite support from the staff [the applicant] was ...

      totally helpless ... .

      At this stage it is not possible to assess with certainty what

      the disturbances in Jonas' personality are caused by. [His]

      difficulties seem to a large extent to stem from [the

      applicant's] lack of ability to enter into emotions ... and the

      fact that she has not allowed him to have normal contacts with

      other adults and children. In order to give Jonas a possibility

      to develop in a positive way he is in absolute need of individual

      psychotherapeutic [treatment] for a longer period of time. In

      view of his age this treatment must start immediately.

      During [his] stay on the ward Jonas showed, [when left alone with

      another adult], an ability to concentrate and use his curiosity

      and imagination. This supports the theory that [he] is able to

      absorb psychotherapeutic treatment. This requires that he has a

      stable home environment with adults who understand and support

      him ... Until now [the applicant] has not been able to support

      [him] in his need to have contacts outside his home. On the

      contrary, she has prevented him from having normal contacts ...

      [S]he would [therefore] probably not be able to support him

      emotionally during [his] treatment. [T]his could put Jonas in an

      unacceptable loyalty conflict.

      ...

      In view of the above .... Jonas should continue to receive care

      under [the 1980 Act]."

      Initially Jonas was placed in the children's home of Enebacken.

On 1 February 1991 he was placed in the children's home of Lund.

      On 14 November 1991 the Social District Council in accordance

with Section 11 of the 1990 Act on the Care of Young Persons (lag

1990:52 med särskilda bestämmelser om vård av unga, hereinafter "the

1990 Act") decided to transfer Jonas from the children's home of Lund

to a foster home at Helsingborg, some 50 kilometres from Malmö.

      The applicant appealed, requesting that Jonas' further care under

the 1990 Act be implemented in her home, alternatively that Jonas not

be transferred to the particular foster home at issue.

      On 18 February 1992 the County Administrative Court held a

hearing, where the applicant referred to an alleged statement by Jonas,

then 12 years old, that he wished to live with her and attend his old

school. On 5 February 1992 he had allegedly asked how much longer he

would have to stay with his foster parents. He had seemed anxious.

Allegedly he had feared to tell the staff at the children's home and

his official counsel the truth and therefore said that he wished to

stay with his foster parents. He had seemed sad, while previously he

had been in a happy mood. He had been transferred very abruptly from

the children's home. The applicant had visited the foster home in

Jonas' absence and had seen alcohol bottles in several places. Jonas'

room had been isolated from the other rooms. The foster parents seemed

to project the loss of their late son on Jonas and had had Jonas' hair

cut in the same way as his. Thus, the particular foster parents chosen

were not suitable. Instead Jonas could have been placed in a foster

home at Lund or Malmö. This would have allowed him to attend his old

school and meet the applicant more often.

      The Social District Council argued that Jonas enjoyed staying

with his foster parents. It would be easy for the applicant to see

Jonas in the foster home. Meetings could also be arranged in the

children's home of Lund. During Jonas' public care there had been no

satisfactory social intercourse between him and the applicant. Jonas

did not wish to go back to the applicant. When stating this he had

shown no signs of fear. Implementation of the care in the applicant's

home was therefore out of the question. Further efforts would, however,

be made in order to create social intercourse between the applicant and

Jonas.

      Jonas' official counsel supported the Social District Council's

view and added, inter alia, that while staying in the foster home Jonas

had expressed a wish that the applicant come and visit him there. Four

such visits had been planned, but the applicant had never attended any

of them.

      On 24 February 1992 the County Administrative Court rejected the

applicant's appeal, stating the following :

      (translation from Swedish)

      "It appears in the case that [Jonas] ... has shown signs of

      mental and social disturbances. He is therefore in need of

      special care. As the circumstances warranting his placement [in

      public care under the 1990 Act] partly continue ... and as it has

      not been possible to arrange longer meetings between Jonas and

      [the applicant] during his stay in the children's home[s], his

      further care [under the 1990 Act] cannot take place in [the

      applicant's] home. Having regard to [Jonas'] development and

      [his] need to live in as normal circumstances as possible, the

      [Court] shares the Social District Council's assessment that

      Jonas' need of care can, at present, best be secured by his

      placement in a foster home. Jonas' need of security and care

      seems to be well satisfied in the foster home at issue. [T]he

      geographical distance would not seem to create any real obstacle

      to social intercourse between Jonas and [the applicant].

      ..."

      The applicant appealed, arguing that she could not be blamed for

the lack of longer meetings between her and Jonas. Until March 1992 she

had very rarely been given the possibility to meet Jonas alone.

Following his transfer to the children's home at Lund he had not been

allowed to visit her. As from February 1990 she had no longer needed

to see a doctor for mental problems. The circumstances previously

warranting the public care of Jonas therefore no longer existed. She

further accepted to cooperate with the social authorities if Jonas were

allowed to move back home.

      On 7 May 1992 the Administrative Court of Appeal upheld the

County Administrative Court's decision.

      Leave to appeal was refused by the Supreme Administrative Court

on 2 July 1992.

      In the proceedings before the administrative courts the applicant

was represented by official counsel.

      The applicant has submitted an opinion of 6 April 1989 by Dr.

A.S., a psychiatrist at the psychiatric clinic of the General Hospital

of Malmö, stating the following:

      (translation from Swedish)

      "[The applicant] was admitted for care [here] from 18 January to

      21 March 1989. During this period [she] showed no signs of a

      serious mental illness.

      Our assessment is, however, that [the applicant] is suffering

      from a personality disturbance characterised by suspicions and

      rigidity - particularly in pressing situations she has a tendency

      to make paranoid interpretations. She also very strongly denies

      having any problems.

      In connection with her crisis caused by the taking into care of

      her son [the applicant] has seemed more open and accessible for

      information and further cooperation."

Relevant domestic law

      Under Section 1, subsection 1 of the 1980 Act public care was to

be provided inter alia for persons under eighteen years of age, if it

could be presumed that the necessary care could not be given to the

young person with the consent of the person or persons having custody

of him.

      Care was to be provided inter alia if lack of care for him or any

other condition in the home entailed a danger to his health or

development (Section 1, subsection 2, no. 1).

      A Social Council could immediately place a person under twenty

years of age in public care, if it was probable that the person was in

need of care under the 1980 Act and that, inter alia in view of the

danger to the person's health or development, the matter could not

await a court examination (Section 6, subsection 1).

      On 1 July 1990 the 1990 Act entered into force.

      Under Section 1, subsection 2 of the 1990 Act a child shall be

placed in public care in one of the circumstances mentioned in Section

2 if it can be assumed that the necessary care cannot be provided with

the consent of that person or those persons who have custody of him.

      Public care shall be provided if there is a particular reason to

believe that the health or development of the child may be jeopardised

because of insufficient care or any other circumstance in the home

(Section 2).

      The Social Council is to decide how care is to be provided and

where the child is to reside. It 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. Care is, however, always to

commence away from his home (Section 11, subsections 1 and 2).

      The Social Council's decision to transfer the young person to

other premises during the course of the care can be appealed against

to the administrative courts (Section 41, subsection 1, no. 1).

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 11 August 1992 and registered

on 17 December 1992.

      On 19 January 1993 the respondent Government were requested to

submit certain information pertaining to the application.

      This information was submitted by the Government on 1 February

1993. The applicant submitted comments in reply in February and March

1993.COMPLAINT

      The applicant complains that her son Jonas is unjustifiably kept

in public care. She refutes the allegations by the social authorities

that she is suffering from a mental illness and refers to the

psychiatric opinion of Dr. A.S. The applicant was allegedly accused by

a neighbour of using "strange methods" in raising Jonas. She invokes

Article 8 of the Convention.

THE LAW

      The applicant complains of the keeping in force of the public

care order regarding her son Jonas. She invokes Article 8 (Art. 8) of

the Convention which 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 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 (see e.g.

Eur. Court H.R., Rieme judgment of 22 April 1992, Series A no. 226-B,

p. 68, para. 54). The right to respect for family life includes a right

to the taking of measures with a view to the parent or parents being

reunited with the child (ibid., p. 71, para. 69).

      The Commission finds that the taking into care of Jonas

interfered and continues to interfere with the applicant's right to

respect for her family life. Such an interference constitutes a

violation of Article 8 (Art. 8) of the Convention unless it is "in

accordance with the law", has one or more aims that are legitimate

under Article 8 para. 2 (Art. 8-2) and is "necessary in a democratic

society" (ibid., p. 68, paras. 55-56).

      It has not been alleged that the interference was not "in

accordance with the law". The Commission, for its part, accepts that

the interference was in accordance with Swedish law.

      The relevant legislation was and continues to be aimed at

protecting the health and the rights and freedoms of Jonas. The

Commission finds no indication that the provisions were applied for any

other purpose. The interference thus had aims that were legitimate

under Article 8 para. 2 (Art. 8-2).

      The notion of necessity implies that the interference with a

right under Article 8 para. 1 (Art. 8-1) must correspond to a "pressing

social need" and, in particular, that it must be proportionate to the

legitimate aim pursued. In determining whether an interference is

"necessary in a democratic society" a margin of appreciation is to be

left to the Contracting State. The Convention organs' review, however,

is not limited to ascertaining whether the State exercised its

discretion reasonably, carefully and in good faith. Moreover, the

Convention organs must look at the impugned decisions in the light of

the case as a whole and determine whether the reasons adduced to

justify the interference are "relevant and sufficient" (Eur. Court

H.R., Olsson no. 2 judgment of 27 November 1992, para. 87, to be

published in Series A no. 250). When determining these questions the

Convention organs should take into account that Article 8 (Art. 8)

includes a procedural requirement that in child-care cases the parents

must have been sufficiently involved in the decision-making process

(e.g. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July

1987, Series A no. 121, pp. 28-29, paras. 63-65).

      The Commission considers that the placing of Jonas in public care

and the keeping in force of the care have been based on careful

examination by Swedish administrative courts. The reasons for the

placing of Jonas in public care were, in essence, that the applicant

had been found to suffer from a mental disturbance involving morbid and

paranoid suspicions and therefore, as a single mother, had been unable

to care properly for Jonas. Moreover, she had refused Jonas permission

to see his father or to establish social contacts outside the home.

      These reasons are clearly relevant and in the Commission's view

also sufficient to justify the placement of Jonas in public care. The

Commission further observes that, although several meetings between her

and Jonas have been planned by the authorities at his request, the

applicant has refused to attend them.

      The Commission also notes that the applicant was represented by

counsel throughout the proceedings. There is thus no indication that

she was not sufficiently involved in the decision-making process.

      Taking all the circumstances of the case into account and having

regard to the State's margin of appreciation, the Commission is

satisfied that the Swedish authorities had and have relevant and

sufficient reasons for placing and keeping Jonas in public care.

      The Commission thus concludes that the interference with the

applicant's right to respect for her family life, being proportionate

to the legitimate aim pursued, could and can at present reasonably be

considered as being necessary in a democratic society for the

protection of the rights and freedoms of Jonas. It has therefore been,

and still is, justified under Article 8 para. 2 (Art. 8-2).

      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 reason, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber        President of the Second Chamber

        (K. ROGGE)                             (S. TRECHSEL)