AS TO THE ADMISSIBILITY OF

                      Application No. 19905/92

                      by T.Y.

                      against Sweden

      The European Commission of Human Rights sitting in private on

14 October 1992, the following members being present:

           MM.   J.A. FROWEIN, President of the First Chamber

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Sir   Basil HALL

           Mr.   C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   M. PELLONPÄÄ

                 B. MARXER

           Mr.   M. de SALVIA, Secretary to the First 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 4 March 1992 by

T.Y. against Sweden and registered on 27 April 1992 under file No.

19905/92;

      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 Finnish citizen born in 1950. He is a car

mechanic by profession and resides at Köping, Sweden. He is the father

of three children, Maria, Helen and Susan H., born out of wedlock in

1977, 1979 and 1980, respectively. The mother of the children U.-B.H.,

has custody of them.

      The facts of the case, as submitted by the applicant and apparent

from the documents submitted, may be summarised as follows.

Particular circumstances of the case

      In 1981 the mother and the children left the applicant, then

resident in Finland, and settled in Sweden.

      In June 1985 the children were taken into care by the County

Administrative Court (länsrätten) of Jönköping at the request of the

Social Welfare Board (socialnämnden) of Värnamo, and placed in foster

homes. The care order was issued under Section 1, subsection 2, para. 1

of the 1980 Act with Special Provisions on the Care of Young Persons

(lag 1980:620 om särskilda bestämmelser för vård av unga, hereinafter

"the 1980 Act").

      In 1987 the applicant instituted proceedings against U.-B.H.

before the District Court (tingsrätten) of Västervik, requesting that

the custody of the children be transferred to him, alternatively that

he be granted visiting-rights. At the time he had not seen his children

since November 1981. In the course of the proceedings he withdrew his

request for custody.

      The Social Welfare Board of Västervik considered that U.-B.H.

should remain the children's custodian.

      On 22 October 1987 the District Court rejected the applicant's

action.

      On 23 March 1988 the Göta Court of Appeal (Göta hovrätt), upon

the applicant's appeal, partly quashed the District Court's decision

and granted the applicant the right to visit Susan once a month under

the supervision of the Social Welfare Board of Värnamo. As regards

Maria and Helen the appeal was rejected.

      On 8 December 1988 the Social Welfare Board decided pursuant to

Section 16, subsection 1 of the 1980 Act to prohibit the applicant's

access to Susan (kontaktförbud).

      The Board noted the decision of the Göta Court of Appeal. The

Board's decision was made at the request of a social welfare officer

who had been in contact with the children during their stay in the

foster homes and who had met Susan and her foster parents during the

autumn in 1988.

      On 3 May 1989 the prohibition of access was maintained.

      The applicant appealed to the County Administrative Court.

      On 10 July 1989 the child and youth psychiatric clinic of

Halmstad (hereinafter "the Clinic") submitted an opinion according to

which Susan had, inter alia, been showing signs of a neurotic

disturbance due to strains during her adolescence and was not

considered ready to see the applicant. Such a contact would further

disturb the development of her personality taking place in cooperation

with her foster parents. A contact with her father would, therefore,

not be of advantage to her development and should be put off until she

had become older and more harmonious. In conclusion it would be

detrimental to Susan's rehabilitation to see her father immediately.

      In an opinion to the Court of 21 August 1989 the County

Administrative Board (länsstyrelsen) of Jönköping supported the Social

Welfare Board's view that the applicant should not, for the time being,

have access to Susan.

      On 20 October 1989 the County Administrative Court rejected the

appeal, having regard to the opinion of 10 July 1989 submitted by the

Clinic.

      As of 1 July 1990 the 1980 Act was replaced by a new Act with

Special Provisions on the Care of Young Persons (lag 1990:52 med

särskilda bestämmelser om vård av unga; hereinafter "the 1990 Act").

      In the autumn of 1990 the Social Welfare Board of Värnamo

pursuant to Section 14, subsection 3 of the 1990 Act reviewed the

prohibition of access. It appears from the judgment of the County

Administrative Court of 21 May 1991 that the authorities had available

a memorandum in which it was stated as follows:

      "In November 1989 [the applicant] and Susan met at the

      request of her foster parents. [Representatives] of the

      social welfare authorities and the Clinic were also

      present. The purpose of the meeting was to enable Susan to

      obtain, if possible, answers to possible questions

      regarding her father, whom she had not met since she was

      one year old. After the meeting the child and the Clinic

      considered it good that Susan had been given a possibility

      to meet her father and form her own conception of him. As

      such a meeting is difficult both for Susan and her foster

      parents as well as [the applicant] the child and the Clinic

      considered that future meetings should be sparse, well

      prepared and take place in the presence of social welfare

      officials. A [further] meeting between [the applicant] and

      Susan was arranged on 12 December 1990 in accordance with

      an access plan (umgängesplan). Susan's foster parents, the

      woman with whom [the applicant] was cohabiting, [a

      representative of] the Clinic and social welfare officials

      were also present. It is still too early to assess the

      meeting primarily from Susan's point of view, as she may

      need time to reflect on her feelings and thoughts. The plan

      should give Susan a possibility to meet her father also on

      a single occasion in 1991. This should be carefully

      prepared in cooperation with the foster home, the Clinic

      and the social welfare official in charge of the case."

      By a decision of 7 December 1990 following the applicant's

complaint to the Prime Minister of the way in which the matter had been

handled by the Social Welfare Board the County Administrative Board

criticised the lack of regular documentation of the Social Welfare

Board's contacts with the applicant during 1990. Moreover, there was

no documentation of the review of the prohibition of access issued

under Section 14, subsection 3 of the 1990 Act. The County

Administrative Board further emphasised that the foster parents' and

the custodian's possible resistance against the applicant and Susan

meeting each other could be no reason for prohibiting such contacts.

Instead, it was up to the social authorities to guide and advise the

foster parents and the custodian so as to ensure that the applicant and

Susan could meet in a relaxed atmosphere.

      On 18 December 1990 the Social Welfare Board decided to maintain

the prohibition of access.

      On 5 March 1991 the Social Welfare Board rejected the applicant's

request for a revocation of the prohibition of access with regard to

Helen and Maria. The Board noted that the decision of the Göta Court

of Appeal of 23 March 1988 prohibited the applicant from having access

to Helen and Maria. As regards Susan the Board decided to maintain the

prohibition of access. It noted that according to the access plan Susan

was to be given an opportunity to meet the applicant on one occasion

in the late autumn of 1991.

      The applicant appealed to the County Administrative Court

requesting that he be allowed to see Susan once a month in accordance

with the decision of the Göta Court of Appeal or at least once every

three months. He submitted, inter alia, that no reasons had been given

why he should not be allowed to see his children, in particular as he

did not abuse drugs.

      In an opinion to the County Administrative Court the Social

Welfare Board objected to the appeal, referring to its previous

investigations. Moreover, both the social welfare officials and the

Clinic had considered that Susan, while staying with her foster

parents, was in great need of security and continuity. The purpose of

the access plan, that is to arrange a meeting once a year between Susan

and the applicant, was to maintain their contact so that Susan at a

more mature age could herself decide how much contact she wished and

had the strength to maintain with the applicant.

      On 21 May 1991 the County Administrative Court dismissed the

appeal insofar as it concerned the Social Welfare Board's decision of

18 December 1990 and took no measures insofar as the request concerned

Maria and Helen. Insofar as the appeal concerned the Social Welfare

Board's decision of 5 March 1991 the Court rejected it, noting the

Social Welfare Board's responsibility under Section 14 of the 1990 Act.

It referred to the Clinic's opinion of 10 July 1989 according to which,

inter alia, Susan was emotionally inhibited and had a negative image

of herself; her disturbance was of a moderate character; and during

interviews she had strongly indicated her affinity with her foster

parents and had reacted negatively to meeting her father.

      The Court further found that although the two subsequent meetings

between the applicant and Susan had been successful they had put a

strain on Susan. Having regard to the circumstances as a whole the

Court considered it necessary, in order to carry out the care of Susan,

that the applicant's access to her be restricted. However, prior to its

next review of the prohibition of access the Social Welfare Board

should contact the Clinic in order to investigate whether Susan's

situation (including her mental state etc.) was such that a more

frequent contact with the applicant could take place.

      The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Jönköping, submitting, inter alia, that Susan's

neurotic disturbances could not have been caused by him, as she had

been only one year old when she and U.-B.H. had moved away from him.

      In the Social Welfare Board's memorandum of 5 June 1991 forming

the basis for a further review of the prohibition of access it was

considered that the contact should be very restricted having regard to

the strain it was putting on Susan and her foster parents.

      In a memorandum of 16 August 1991 forming the basis for the

Social Welfare Board's opinion to the Administrative Court of Appeal

inter alia the following was stated:

      "[The applicant] is in no way excluded as a father or a

      person. For all we know there are no reasons for preventing

      him from seeing Susan at a neutral place. The primary

      question is how much strength Susan has. When [considering]

      the access plan the Social Welfare Board's starting-point

      is to take Susan's present mental state into account and on

      this basis decide on her contact with both her mother and

      her father. [The applicant's] wish to see his daughter can

      at present not be fully complied with, as this would be

      contrary to Susan's [own] will and as she is showing signs

      of neurotic disturbances and is in need of calm and

      security. The present plan aims at maintaining the contact

      between [the applicant and Susan]."

      In an account to the Social Welfare Board of 4 December 1991 it

was found, inter alia, that Susan's situation had remained stable. The

social welfare officer in charge of the case, M.G., further submitted,

inter alia, that on 28 November 1991 the applicant and Susan had met

for an hour. M.G., the applicant, the woman with whom he was cohabiting

and Susan's foster parents had also been present. The meeting had been

good, although stiff. Susan had been very uninterested in the meeting.

According to M.G. the meeting did not cause Susan any serious harm.

M.G. noted that Susan knew what it was all about and felt secure

knowing that she would not be removed from her foster parents.

      On 4 December 1991 the Social Welfare Board decided to maintain

the access plan with one meeting per year.

      On 13 January 1992 the Administrative Court of Appeal quashed the

County Administrative Court's decision and granted the applicant a

right to see Susan on three occasions during 1992. The Court had regard

to an opinion of 5 June 1991 by H.C., a psychologist at the Clinic

according to whom the conditions for contact had not changed. In a

further opinion of 8 November 1991 H.C. had stated that Susan's mental

condition was stable and that she could see the applicant once a year.

The Administrative Court of Appeal stated inter alia as follows:

      "...Notwithstanding the fact that a young person is taken

      into care under the 1990 Act [in this case the 1980 Act]

      the contact [between him or her and the parent who does not

      have the custody] is to be decided by a general lower court

      (allmän domstol). Accordingly, the Social Welfare Board

      shall proceed from the contents of the decision by the Göta

      Court of Appeal. [It] may, however, ... decide on how

      [this] contact should be executed. A restriction of the

      contact can only be made for weighty reasons and [Section

      14] should be applied restrictively ...

      The reasons invoked by the Board are Susan's mental state

      and the strains which the [meetings between Susan and the

      applicant] have put on her and the foster parents.

      As regards first the foster parents the Board has not

      invoked anything that could affect the question of contact.

      As regards Susan's mental state it is now considered

      stable. She is found to feel secure knowing that she will

      not be removed from the foster home.

      No objections have been made against [the applicant's]

      person. According to the Board the lengthy interruption of

      the contact between him and [Susan] is an obstacle to a

      more frequent one taking place. From the outside the

      meetings ... have been successful. Having regard to the

      fact that the first meetings took place after an

      interruption of nearly ten years, and to the lengthy period

      between the meetings [in 1989, 1990 and 1991] Susan's lack

      of interest cannot be considered remarkable. According to

      the evaluation of the meetings in 1989 and 1990 these put

      a strain on Susan. No evaluation of the meeting in 1991 has

      yet been made. However, according to [M.G.] that meeting

      appeared not to have been detrimental to Susan.

      ... [I]n view of, in particular, the interruption of the

      contact ... for almost ten years there are weighty reasons

      for a certain restriction of the access. However, they are

      not so weighty as to restrict it to one visit per year.

      [The applicant] shall, therefore, have a right to see

      [Susan] on three occasions in 1992. The Administrative

      Court of Appeal requires that subsequent contact be more

      frequent. The meeting-place and the arrangements should

      initially remain unchanged."

      On 24 February 1992 the Supreme Administrative Court

(regeringsrätten) refused the applicant leave to appeal.

      On 4 March 1992 the Social Welfare Board of Värnamo again decided

to maintain the prohibition of access. It further fixed the meetings

between the applicant and Susan in 1992 in accordance with an agreement

signed by the applicant on 20 February 1992.

Relevant domestic law

      Under Section 1 of the 1980 Act care was to be provided for

persons under eighteen years of age if it could be presumed that the

necessary care could be given to the young person with the consent of

the person or persons having custody of him or her and, in the case of

a young person aged fifteen or more, with the consent of the young

person. Care was to be provided for a young person if, for instance,

lack of care of him or her or any other condition in the home entailed

a danger to his health or development (subsection 2, para. 1).

      Once a decision on public care had been taken, the Social Welfare

Board was to execute the decision, take care of the practical details

regarding where to place the child and decide what education and other

treatment he or she should be given etc. Under Section 11 the Board was

to decide how care was to be arranged for the young person concerned

and where he or she was to reside during the period of care. It was

further to keep the young person under surveillance and make such

decisions concerning his or her personal circumstances as were

necessary for the care.

      Section 16 of the 1980 Act provided that, if it was necessary in

order to achieve the purposes of care measures taken under this Act,

the Board could decide how the right of access to the young person was

to be exercised by a parent or other person who had custody of him, or

decide that the young person's place of residence should not be

disclosed to the parent or custodian.

      The preparatory work to this provision (Bill 1979/80:1, Part A,

p. 601), contains the following statement:

      "The Social Welfare Board should, when carrying out the

      care, as far as possible cooperate with the parents and

      assist in maintaining contacts between the parents and the

      child. ... A care decision should not give rise to other

      restrictions of the parents' right of access to the child

      than those which are necessary in order to carry out the

      care. The circumstances might, however, be such that the

      parents during the care period should not meet the child.

      There might for example be a risk that the parents

      interfere with the care without authorisation. The parents'

      personal circumstances might also, for instance by reason

      of severe abuse [of alcohol or drugs] or mental illness, be

      such that they should not meet the child at all ... The

      proposed provisions concerning restrictions of the right of

      access should be applied restrictively. [The Board] should

      only in exceptional cases refuse to disclose the child's

      place of residence to the parents."

      The Standing Social Committee of the Parliament stated in its

report (Statens offentliga utredningar - "SOU" 1979/80:44, p. 116) that

the Social Welfare Board was in principle responsible for all decisions

concerning visits to the child. This was inherent in its general powers

to decide on the child's conditions during care. Parents enjoyed a

special right of access to the child and it was important that they

maintain regular contact. The circumstances could, however, be such

that the parents during a certain time or until further notice should

not meet the child.

      According to a guide on the 1980 Act (1981:2, p. 112) issued by

the National Board of Health and Social Welfare (socialstyrelsen), the

local Social Welfare Board was empowered under Section 16 to restrict

and terminate completely the parent's access to the child.

      Decisions of the County Administrative Court that a child be

taken into care under the 1980 Act could be the subject of an appeal

to the Administrative Court of Appeal and, with leave, to the Supreme

Administrative Court.

      An appeal lay to the County Administrative Court (and then to the

Administrative Court of Appeal and, with leave, to the Supreme

Administrative Court) against, inter alia, decisions taken by a Social

Welfare Board regulating the right of access under Section 16 of the

1980 Act.

      As of 1 July 1990 the 1980 Act was replaced by the 1990 Act which

entails certain amendments and additions to the 1980 Act. The

provisions of the 1990 Act corresponding to those of the 1980 Act

mentioned above are essentially the same. However, Section 14, which

replaces Section 16 of the 1980 Act, is worded as follows:

      "The Social Welfare Board is responsible for accommodating

      as far as possible the young person's needs of contact with

      his parents or any person who has custody of him.

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

      measures taken under this Act, the Social Welfare Board 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, ...

      The Social Welfare Board shall reconsider at least once

      every three months whether such a decision as referred to

      in the second paragraph remains necessary."

      It follows from Chapter 6, Section 15, para. 2 and Section 17 of

the Parental Code (föräldrabalken), that a court order refusing a

parent access to his child may be reconsidered at that parent's request

following an action brought against the child's custodian.

COMPLAINT

      The applicant complains that his right of access to his children

is being restricted for no justifying reason. He further complains of

the modalities of the meetings with Susan. He invokes Article 8 of the

Convention and Article 5 of Protocol No. 7.

THE LAW

      The applicant complains of the interference with his right of

access to his children, and of the modalities of the meetings with

Susan. He invokes Article 8 (Art. 8) of the Convention and Article 5

of Protocol No. 7 (P7-5).

      The Commission has examined the application under Article 8

(Art. 8) of the Convention which states:

      "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."

(a)   As regards firstly the alleged restriction of access to Susan and

the modalities of the meetings arranged by the social authorities

between the applicant and Susan 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, as the most recent authority, 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 implementation of the care order and the prohibition or

restriction of access in the present case interfere with the

applicant's right to respect for his 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" (cf. ibid., paras. 55-56).

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

accordance with the law". The Commission, for its part, finds no

indication to the contrary.

      The relevant domestic law was aimed at protecting the health and

the rights and freedoms of Susan. 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) (cf. ibid., para. 66).

      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 is 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 judgment of 24 March

1988, Series A no. 130, pp. 31-32, paras. 67-68). 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 the restriction of the applicant's

access to Susan is based on careful and successive examination by the

Social Welfare Board, the County Administrative Court and the

Administrative Court of Appeal. It takes Susan's mental state into

account and the fact that she had not met the applicant since 1981,

when she was one year old.

      Having regard to the strain which the meetings with the applicant

put on Susan and, in particular, her mental health it was considered

to be in her interests that her contacts with the applicant develop

gradually. These reasons were relevant and sufficient for the purposes

of Article 8 (Art. 8) of the Convention and also justified the

modalities of the meetings arranged between the applicant and Susan.

In the Commission's view the applicant was, for the purposes of Article

8 (Art. 8), sufficiently involved in this decision-making process.

      The Commission further notes that under Section 14, subsection

3 of the 1990 Act the prohibition of access had to be reviewed by the

Social Welfare Board at regular intervals not exceeding three months.

Moreover, when extending the applicant's right of access to three times

during 1992, the Administrative Court of Appeal required that the

access be further extended in subsequent years.

      The Commission has not overlooked the applicant's situation. The

absence of one's child may cause considerable suffering to the non-

custodial parent. However, where, as in the present case, there is a

serious conflict between the interests of the child and those of one

of its parents which can only be resolved to the disadvantage of one

of them, the interest of the child must prevail (No. 12495/86,

Dec. 7.12.87, D.R. 54 p. 187 [194]).

      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 at present relevant

and sufficient reasons for their measures restricting the applicant's

access to Susan.

      The Commission concludes that the interference with the

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

to the legitimate aim pursued, could and can at present 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

Susan.

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

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

(Art. 27-2) of the Convention.

(b)   As regards secondly the alleged refusal of access to Maria and

Helen the applicant has not shown that he requested leave to appeal to

the Supreme Court against the decision of the Göta Court of Appeal of

23 March 1988 rejecting his request for access to those children. The

applicant has, therefore, not exhausted the remedies available under

Swedish law, as required in Article 26 (Art. 26) of the Convention.

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

of any special circumstance which might have absolved the applicant,

according to the general rules of international law, from exhausting

the remedies at his disposal.

      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.

(c)   The applicant has also invoked Article 5 of Protocol No. 7

(P7-5). However, the Commission finds no issue under this provision.

      If follows that the application in this respect 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 First Chamber        President of the First Chamber

      (M. de SALVIA)                         (J.A. FROWEIN)