Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20877/92

by Helena ENGDAHL

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 February 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

J.-C. GEUS

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 2 November 1992

by Helena ENGDAHL against Sweden and registered on 3 November 1992

under file No. 20877/92;

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

The applicant is a Swedish citizen born in 1956. She is a

secretary resident in Stockholm.

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

summarised as follows.

Particular circumstances of the case

On 9 November 1991 the applicant gave birth to a son, Issa.

On 25 November 1991 Issa, the applicant and the father of Issa

were admitted to the crisis and investigation home Eurenii Minne in

application of Section 6 of the 1980 Social Services Act (social-

tjänstlag 1980:620).

On 10 December 1991 Issa's father was transferred to the

psychiatric institution of Beckomberga.

On 23 January 1992 the applicant and Issa were discharged from

Eurenii Minne. On the same day the Chairman of Social District Council

no. 4 of Stockholm (sociala distriktsnämnden nr 4 i Stockholms stad)

provisionally decided pursuant to Section 6 of the 1990 Act on the Care

of Young Persons (lag 1990:52 med särskilda bestämmelser om vård av

unga, "the 1990 Act") to place Issa in public care in a children's

home. The Chairman had regard to information from Eurenii Minne showing

that the applicant was not able to give Issa sufficient care and that

his health and development was thus being jeopardised.

On 6 February 1992 the County Administrative Court (länsrätten)

of Stockholm held a hearing in camera. The Court had regard to a

memorandum of 29 January 1992 submitted by two members of the staff at

Eurenii Minne.

The applicant, represented by official counsel, objected to the

placing of Issa in public care and submitted, in particular, that as

from 1987 she was no longer undergoing compulsory psychiatric treatment

but was receiving therapy on a voluntary basis. She was well aware of

her psychiatric symptoms. Subsequent to her discharge from compulsory

treatment she had complied with all instructions by the medical

authorities. She was living in stable conditions. She was no longer

cohabiting with Issa's father and had no intention of cohabiting with

him again. The allegations in the memorandum were out of context and

irrelevant and the decision of the Social District Council was

formulated in general terms. Her possible need for social assistance

could be fulfilled through voluntary arrangements.

Issa, represented by official counsel, requested that the

placement in public care be confirmed.

The County Administrative Court decided, by a majority, not to

confirm the placement order, considering that there was no reason to

believe that the applicant would not, as she had already done,

voluntarily accept assistance in the care of Issa. The applicant was

aware of her symptoms and her contacts with the medical institutions

had been correct.

The Social District Committee appealed, alleging that the

applicant had fetched Issa from the nursing home, that she had refused

to let investigators from the social authority in to her home and that

she was unable to care for Issa without extensive assistance.

On 11 February 1992 the Administrative Court of Appeal (kammar-

rätten) of Stockholm provisionally ordered that Issa be placed in

public care pending further proceedings in the case.

The applicant objected to the appeal, submitting, in particular,

that she had refused to be visited by the social welfare officials

between 7 and 9 February 1992, a weekend, as she had wanted to spend

some time alone with Issa for the first time since his birth.

Issa's official counsel concurred with the Social District

Committee's appeal, having regard to the applicant's symptoms and her

attitude towards assistance given on a voluntary basis.

On 21 February 1992 the Administrative Court of Appeal quashed

the decision of the County Administrative Court and upheld the

provisional care order.

On 12 March 1992 the County Administrative Court pursuant to

Section 1, para. 2 and Section 2 of the 1990 Act and following an oral

hearing in camera on 2 March 1992 finally placed Issa in public care.

It had regard to the fact that the applicant was a single mother and

further stated the following:

"... It appears, mainly from the report submitted by

Dr. Weronica Mattsson, deputy chief doctor at the [open]

institution for psychiatric rehabilitation of Södermalm,

that [the applicant]...suffers from a chronic psychiatric

disturbance diagnosed as a schizophrenic process. She is

known within the field of psychiatric treatment at

Södermalm since 1984 and since 1987 she has been in

[voluntary] treatment... Her treatment...consists of

injections every two weeks... She further has pills which

she can take against temporarily stronger anxiety as well

as...sleeping pills. She has further participated in

psychosocial therapy... As a result of interruptions in her

medication [she] has on a two occasions been subjected to

compulsory treatment. At present, however, she is aware of

her need for regular medication and is managing [her

medication] well. Already several years ago she attained a

stable condition without schizophrenic symptoms. This has

made it possible for her to continue leading a fairly

normal life. The prognosis is good provided the treatment

continues. She is, however, still on sick leave from her

work.

As [the applicant] had become pregnant the Social District

Council began investigating whether [she] and her then

cohabitant, the father of [Issa], who also suffers from a

psychiatric illness, were capable of taking care of a

child.

Following the birth of [Issa] the family was enrolled at

the Eurenii Minne in order to investigate the relations

between the respective parents and [Issa] and the parents'

caring capability and possible needs for assistance. The

father has not been able to go through with the

investigation, as in December 1991 he became acutely ill

and was taken into care under the 1966 Act on Compulsory

Psychiatric Treatment (lag 1966:293 om beredande av sluten

psykiatrisk vård i vissa fall).

From the investigation conducted at Eurenii Minne it

appears... that the time the applicant spent [there] has

shown her to be competent to a large extent to care [for

Issa] in the practical and physical sense of the word. She

is not, however, sufficiently capable of conceiving and

meeting [Issa's] needs, in particular his mental needs. She

is severely restricted from having a deeper relation and

social intercourse with [Issa]. [She] has not been able to

understand and process these problems. Her own problems and

needs affect to a large extent her capacity to establish

and maintain a close relation to Issa. Neither [the

applicant] nor [Issa's father] can at present on their own

meet Issa's needs.

Mr. Jan Elmqvist, deputy manager of Eurenii Minne, has been

heard as a witness at the Social District Council's request

and has submitted the following in connection with the

written opinion. In an investigation of the social

intercourse between parents and their child regard is had

to the parents' capability of entering into [a relation

with the child], their capability of conceiving the child

in a realistic way, their control of impulses and their

awareness of problems. Under these criteria [the

applicant's] capability of caring [for Issa] must at

present be considered severely restricted. ... There is a

lot to suggest that [she] finds it difficult to perceive

and assess Issa's needs, the changes caused by his growing

and development and to... adjust to those [changes]. Regard

has then also been had to the fact that parents facing a

crisis such as being subjected to an investigation

sometimes behave differently... In [the applicant's] case

the staff have not noticed that she has really been

affected... Part of her problem is rather that due to her

medication upon which she is totally dependent she becomes

so subdued that she cannot feel the anxiety that she should

sometimes feel with regard to [Issa]. Moreover, because of

her medication she sometimes sleeps so deeply that a

child's crying does not wake her up... There has been a

certain anxiety among the staff members caused by the fact

that Issa has been sleeping often and for lengthy periods

of time, sometimes for up to 11-12 consecutive hours. The

reason for this [sleeping pattern] is unknown.

[The applicant] has submitted... that she is aware of her

illness and that she realises that she needs medication in

order to feel well. After the birth of [Issa] she has only

very rarely taken sleeping pills. [Issa] is a child very

much longed for and she loves him. She has no problems in

caring for him... She may, however, need assistance with

cleaning. One of the side effects of the medication is that

she becomes almost pedantic. She associates with, among

others, persons with serious problems. This cannot be

wrong. She also has other friends. As from about a month

ago she is no longer living with Issa's father... She feels

that when considering Issa's situation too much regard has

been had to his father's illness. Issa is a healthy and

normally developed boy... It has not been shown that he

suffered during the period when he was staying in her home.

She has given explanations as to the problems referred to

in the submission by Eurenii Minne. She felt nervous and

pressured when staying there.

At [the applicant's] request Ms. Karin Tivenius, a

psychotherapist..., has been heard as witness regarding

[the applicant's] capability of caring for Issa.

[Moreover,] Ms. Birgitta Einarsson, a nurse... and midwife,

has been heard... regarding her observations during [the

applicant's] pregnancy and her capability of accepting

advice and support... Although the witnesses have expressed

themselves in [the applicant's] favour neither one of them

has, however, seen [the applicant and Issa] together.

Issa's official counsel has referred to certain

observations made by the foster parents while [the

applicant] has been visiting Issa. These observations point

in the same direction as the opinion by Eurenii Minne.

...

[In the Court's view] the basis for assessing whether [the

applicant's] psychiatric disturbance is of such a character

that she is unable to care for Issa in an adequate way

must... consist of the written evaluation of [the relation

between] [the applicant and Issa] at... Eurenii Minne as

well as of the witness statement submitted in this respect.

During the investigation period... it has been observed

that [the applicant] is well capable of handling the

practical care of Issa. Her caring capability in the mental

sense has, however, been insufficient. [Her] strong

dependency on medication raises doubts as to how she would

be able to care for Issa alone. When she feels in need of

being alone there is nobody in her home who can assist in

taking care of Issa. [She] does not seem to have any close

relatives nearby... Her social network... largely consists

of friends with mental problems of their own. [T]his does

not affect [Issa's]... environment in any positive way. It

does not seem realistic [to expect] [her] to care for Issa

on her own even with significant support from the social

welfare authority. It should also be noted that [she] has

clearly stated that she is in no need of any help with the

care of Issa... The conditions in [her] home jeopardise

Issa's health and development and he should therefore be

given [public] care... in accordance with the 1990 Act..."

Issa's official counsel had supported a final placement in public

care.

The applicant appealed, submitting that her psychiatric

disturbance did not prevent her from caring for Issa in an adequate

way. She refuted the finding that to a large extent she had been

associating with persons with mental problems of their own.

The Social District Council referred inter alia to a psychiatric

report concerning the applicant and submitted that on some occasions

she had handed Issa over to persons incapable of caring for him, this

showing that she was considering her own needs more important than

those of Issa.

Issa's counsel stated that the applicant's difficulties in

realising Issa's all needs had increased as he had developed and was

demanding more from his parents. The support which the applicant had

agreed to receive was not sufficient. If she were to take care of Issa

in her home a further person would have to be available throughout the

twenty-four hours.

On 23 June 1992 the Administrative Court of Appeal following an

oral hearing in camera rejected the appeal.

On 21 July 1992 the Supreme Administrative Court (regerings-

rätten) refused leave to appeal.

Relevant domestic law

Under Section 1, para. 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).

A Social Council or, in urgent cases, its Chairman or another

member appointed by the Board may provisionally place a young person

under 20 years of age in public care, if it is likely that the person

is in need of care under the 1990 Act and provided a court decision

cannot be awaited having regard to inter alia the danger to his health

or development (Section 6).

Section 6 of the Social Services Act grants individuals a right

to assistance by the Social Council for their maintenance and living

in general provided their needs cannot be met otherwise.

Under Section 16 of the 1971 Act on the Procedure before

Administrative Courts (förvaltningsprocesslag 1971:291, "the 1971 Act")

the publicity of oral hearings shall, mutatis mutandis, be governed by

Chapter 5 of the Code of Judicial Procedure (rättegångsbalken). An

administrative court may further decide to hold an oral hearing in

camera provided there is reason to believe that the submissions at the

hearing are to be protected under the Secrecy Act (sekretesslag

1980:100).

Under Section 34 of the 1971 Act an appeal against a decision in

a procedural matter shall, with certain exceptions not relevant in the

present case, be lodged in connection with the appeal against the

decision on the merits.

COMPLAINTS

1. The applicant complains of the taking into public care of Issa.

She refutes the allegations made in the memorandum drawn up on the

basis of her stay with Issa at Eurenii Minne.

2. The applicant further complains of restrictions of her freedom

of movement while staying at Eurenii Minne. She alleges that she was

refused permission to leave the institution on Christmas Eve and New

Year's Eve 1991 and that she needed permission from a social welfare

official to go for longer walks.

3. The applicant finally complains that the oral hearing before the

County Administrative Court on 6 February 1992 was held in camera.

The applicant invokes no particular provision of the Convention

or any of its Protocols.

THE LAW

1. The applicant complains of the taking into public care of Issa.

The Commission has considered this complaint under Article 8

(Art. 8) of the Convention, which reads in its relevant parts:

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

family life...

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...,for the protection of health ..., or for the

protection of the rights and freedoms of others."

It is common ground 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, para. 54, to be published

in Series A no. 226-B). 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., para. 69).

The taking into care of Issa clearly 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., 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 domestic law was aimed at protecting the health and

the rights and freedoms of Issa. 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 notes that both the provisional and the final care

orders were based on careful examination by the County Administrative

Court and the Administrative Court of Appeal following oral hearings.

The reasons for the placing of Issa in public care were, in essence,

that the applicant was suffering from a psychiatric disturbance

requiring medication and that, as a single mother, she was unable to

care properly for her child.

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

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

Commission further observes 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 Issa 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 be considered justified

under Article 8 para. 2 (Art. 8-2) as being necessary in a democratic

society for the protection of the rights and freedoms of Issa.

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 of restrictions of her freedom

of movement while staying at Eurenii Minne.

The Commission does not consider it necessary to determine

whether this complaint should be examined under Article 5 (Art. 5) of

the Convention or under Article 2 of Protocol No. 4 (P4-2) to the

Convention as it is, in any event, manifestly ill-founded for the

following reason.

The Commission notes that the applicant's stay at Eurenii Minne

was not a deprivation of liberty as referred to in Article 5 (Art. 5)

of the Convention, but was based on Section 6 of the Social Services

Act and occurred with her consent. Consequently, any rules which may

have restricted her movements during her stay at the institution must

be considered to have been accepted by her in connection with her

admission. Moreover, she was free at any time to interrupt the

investigation undertaken at the institution. The restrictions cannot

therefore raise any problem under Article 5 (Art. 5) of the Convention

or under Article 2 of Protocol No. 4 (P4-2).

It follows that this part of the application is also manifestly

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

Convention.

3. The applicant finally complains of the fact that the oral hearing

before the County Administrative Court on 6 February 1992 was held in

camera.

The Commission observes that, following this hearing, the County

Administrative Court ruled in the applicant's favour. The question

therefore arises whether the applicant can claim to be a "victim",

within the meaning of Article 25 (Art. 25) of the Convention, of a

violation of her rights under Article 6 para. 1 (Art. 6-1) of the

Convention, which reads, in its relevant parts:

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

entitled to a... public hearing...[T]he... public may be

excluded from all or part of the trial..., where the

interests of juveniles or the protection of the private

life of the parties so require..."

The Commission notes that the decision of the County

Administrative Court was subsequently quashed by the Administrative

Court of Appeal and that a final care order was issued by the Country

Administrative Court following a second hearing which also took place

in camera. This decision was upheld by the Administrative Court of

Appeal, again following a hearing in camera. Finally, the Supreme

Administrative Court's consideration of whether the applicant should

be granted leave to appeal took place without a hearing.

The Commission considers that the question regarding the

applicants "victim" status under Article 25 (Art. 25) of the

Convention, and the question whether the absence of a public hearing

discloses any violation of Article 6 (Art. 6) of the Convention, need

not be resolved as, under Article 26 (Art. 26) of the Convention, it

may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

In the present case the applicant has not shown that she objected

to a hearing in camera either before the County Administrative Court

or that she raised this issue in her submissions to the administrative

courts of appeal. In these circumstances she has not established that

she has availed herself of the domestic remedies at her disposal.

Moreover, an examination of the case does not disclose any

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from raising this

issue in the proceedings referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must be rejected under Article 27 para. 3 (Art. 27-3) 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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ENGDAHL v. SWEDEN

ENGDAHL v. SWEDEN

LEXI