Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15467/89

by Jan and Marja IPSONIUS

against Sweden

The European Commission of Human Rights sitting in private on

12 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

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 July 1989 by

Jan and Marja IPSONIUS against Sweden and registered on

8 September 1989 under file No. 15467/89;

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 applicants are Swedish citizens born in 1941 and 1952,

respectively. They are resident at Norsborg. Mr. Ipsonius is a

technician and Mrs. Ipsonius is a catering assistant by profession.

They have two children together, Anna born in 1982 and Johan born in

1984. Before the Commission they are represented by Mrs. Kerstin

Koorti, a lawyer practising in Stockholm.

The facts of the case, as submitted on behalf of the applicants,

may be summarised as follows.

Particular circumstances of the case

As from August 1986 the applicants' family was, on several

occasions, contacted by the Social District Council (sociala

distriktsnämnden) of Alby under Section 6 of the Social Services Act

(socialtjänstlagen) due to rows during some of which Mrs. Ipsonius had

been assaulted by Mr. Ipsonius, the incidents generally involving

alcohol.

During the summer of 1988 the Social District Council were

informed that the applicants had relapsed into alcoholism and that

there were again rows in the family.

On 21 October 1988 the applicants' children were placed in a

children's home in Klingsta under Section 6 of the Social Services Act.

On 5 November 1988 the children were transferred, in agreement with the

applicants, to the home of the second applicant's sister. On 21

November 1988 the children were again transferred, in agreement with

the applicants, to a children's home (utrednings- och korttidshem) in

Geneta under Section 6 of the Social Services Act for an investigation

of the family situation. The children's home was to be used for

shorter stays.

On 2 February 1989 Mrs. Ipsonius came drunk to the children's day

care center and took Johan away, while Anna refused to go with her. On

the same day the Social District Council of Alby decided to take the

applicants' children into care on a provisional basis, having regard

to the applicants' long and serious abuse of alcohol. The care order

was issued under Section 6 of the 1980 Act with Special Provisions on

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

unga, hereinafter "the 1980 Act"). The decision was confirmed on 16

February 1989 by the County Administrative Court (länsrätten) of the

County of Stockholm.

On 1 March 1989 the Social District Council requested that the

children be taken into care under Section 1, para. 2, sub-para. 1 of

the 1980 Act.

On 6 April 1989 the County Administrative Court, after a hearing,

issued a care order regarding the children.

In the proceedings before the County Administrative Court the

Social District Council referred to a care plan (vårdplan, arbetsplan)

of 23 February 1989, according to which, in order to ensure the

children's future health and development, their need for care could

r

for the moment, best be achieved by providing care under the 1980 Act;

the need of care would best be met by placing them in a family home;

the intercourse with their parents and siblings was of great importance

and was therefore to be encouraged and facilitated; a plan was to be

made in cooperation with the parents in order to have them undergo

treatment; and termination of the care was to be considered in

cooperation with the parents when their alcohol problems were solved.

The plan included an opinion regarding the mental state of the

children of 25 January 1989 submitted by a psychologist. According to

this opinion the enforcement of the care plan was necessary in order

to prevent further difficulties from which the children would otherwise

suffer.

The County Administrative Court found inter alia that the

applicants had been abusing alcohol for a long time and extensively.

It further found that, although the applicants had agreed to the care

plan, it was doubtful whether their consent would last for the whole

of the necessary period of care.

At a hearing before the Administrative Court of Appeal (kammar-

rätten) of Stockholm following the applicants' appeal the Social

District Council again referred to the care plan and argued, in

particular, that the children needed to be placed in a family home for

up to one and a half years and that the parents' consent to the care

plan did not concern possible long term care. Moreover, the aim was to

arrange frequent contacts with the parents. The Social District Council

found, however, that the relationship as such between the parents and

the children was good.

According to the deputy matron of the children's home, who was

heard as a witness, the children's home had no cooperation problems

with the parents. However, when they had previously relapsed into their

abuse of alcohol their behaviour had again become disturbed.

On 2 June 1989 the Administrative Court of Appeal of Stockholm

rejected the applicants' appeal. The Court noted that the family

situation had improved, but found it premature to consider whether it

had improved to such an extent as to allow the public care to be

terminated. It further doubted that the parents' consent to the care

plan would last for the necessary period of care.

The applicants underwent institutional treatment for their abuse

of alcohol, the first applicant for six weeks as from 16 March 1989 and

the second applicant for eight weeks as from 7 March 1989.

Before the Social District Council and the administrative courts

the applicants were represented by their lawyer before the Commission.

The children remained in the children's home of Geneta until

7 March 1990, when the Social District Council revoked the care order

and the children were returned to the applicants.

Relevant domestic law

Under Section 1, para. 2, sub-para. 1 of the 1980 Act care is to

be provided for a young person, if his health or development is

endangered by lack of care or any other condition in the home.

Under Section 5 the care shall be carefully monitored by the

Social Council. The care shall be terminated when it is no longer

necessary.

Under Section 11, paras. 1 and 4 the Social Council shall, when

a care order has been issued under the 1980 Act, decide how care is to

be arranged for the person concerned and where he is to reside during

the period of care. The person shall be kept under surveillance and

decisions concerning his personal circumstances shall be made, to the

extent they are necessary for the discharge of the care. According to

the Government Bill (1979/80:1, Part A, pp. 585, 596) the question

whether a young person should be given care is to be considered by the

County Administrative Board, while it is for the Social District

Council to consider whether care should be given in another private

home, a foster home or an institution.

According to Section 6 of the Social Services Act the Social

Council shall ensure assistance for a person's maintenance and way of

life, provided these needs cannot be ensured in any other way. The

assistance shall ensure reasonable conditions of living and strengthen

the person's possibilities to lead an independent life.

Under Section 22 the Social District Council shall ensure that

persons needing care or accommodation in homes other than their own are

admitted to a family home or to a nursing or residential home. The care

should be designed to promote the person's affinity to his next of kin

and his contact with the home environment.

Under Section 41 of the 1981 Social Services Ordinance

(socialtjänstförordningen) a care order based on unsatisfactory

conditions in the child's home must be reconsidered by the Social

Council regularly and at least once a year.

COMPLAINTS

1. The applicants complain that they could not obtain a judicial

determination of their civil rights. They submit that, as they had not

been consuming any alcohol since 3 February 1989, the care should have

been terminated. Moreover, following the institutional treatment of

their alcohol problems they underwent repeated after-treatment and

joined Alcoholics Anonymous.

The applicants further complain that, contrary to the care plan

invoked by the Social District Council before the administrative courts

in support of its request that the care order be upheld, the children

were never placed in a family home, but remained in a children's home.

However, neither the keeping in force of the care order nor the fact

that the care plan was not being implemented could be challenged before

a court. They allege violations of Article 6 para. 1 of the Convention.

2. The applicants further complain of a violation of Article 13

of the Convention, as they had no effective remedy before a national

authority to challenge the validity of the care plan.

THE LAW

1. The applicants complain that they could not obtain a judicial

determination of their civil rights, as they could not challenge the

keeping in force of the care order or the fact that the care plan

regarding their children was not being implemented by the Social

District Council. They allege violations of Article 6 para. 1

(Art. 6-1) of the Convention, which reads, in its relevant parts:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law..."

(a) Insofar as the complaint pertains to the alleged failure to

terminate the care in view of the improved family situation the

Commission recalls that family law rights are civil in character and

therefore fall within the scope of Article 6 para. 1 (Art. 6-1) of the

Convention (see Eriksson v. Sweden, Comm. Report 14.7.88, para. 232,

Eur. Court H.R., Series A no. 156, p. 48, with further reference). A

decision as to whether a child should be taken into public care or kept

in care is, having regard to the effects on the enjoyment of the family

life of the parents, decisive for their "civil rights".

The Commission observes that under the general principles of

Swedish administrative law the applicants could, at any time, have

requested the Social District Council to terminate the care. An appeal

lay to the County Administrative Court, thereafter to the

Administrative Court of Appeal and finally to the Supreme

Administrative Court (regeringsrätten), in the last-mentioned case

provided leave to appeal was granted (cf. Eur. Court H.R., Olsson

judgment of 24 March 1988, Series A no. 130, pp. 25-26, para. 49). The

applicants thus had access to a tribunal in accordance with Article 6

para. 1 (Art. 6-1) of the Convention in order to challenge the keeping

in force of the care order in view of the improved family situation.

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.

(b)The applicants further complain that they could not obtain a

judicial determination of their civil rights, as they could not

challenge before a court the fact that the care plan was not being

implemented by the Social District Council.

It appears that the administrative courts, when deciding on the

necessity of placing and keeping the children in public care, had

regard to the care plan referred to by the Social District Council. The

Commission considers, however, that this plan did not have the

character of a legally binding agreement reached between the Social

District Council and the applicants. Nor was the care plan a formal

decision on where the children were to be placed or how they were to

be treated. Rather, the care plan set out the modalities of the care

and, in this sense, served as a working-plan guiding social workers on

how the care of the applicants' children should be enforced. The

alleged failure of the Social District Council to adhere to the care

plan did therefore not involve any determination of the applicants'

civil rights.

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.

2.The Commission has also examined the application under 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."

Under this provision it must be examined whether the fact that

the applicants' children were kept in public care, notwithstanding the

applicants' abstention from alcohol even before the care plan was

adopted, can be justified for any of the reasons set out in Article 8

para. 2 (Art. 8-2).

The Commission has found above that the care plan cannot be

considered a legally binding agreement or decision. Therefore, there

could be no obligation for the Social District Council to deal with the

children in accordance with the plan. Moreover, it is clear from the

file that the applicants have a background of long and extensive abuse

of alcohol. Their previous attempts to abstain from alcohol had failed,

which fact was also noted by the administrative courts.

In these circumstances the fact that the applicants' children

were not returned to them at an earlier stage must be considered

justified under para. 2 of Article 8 (Art. 8-2) of the Convention for

the protection of the children.

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 applicants further complain that they had no effective remedy

before a national authority to challenge the validity of the care plan.

They allege a violation of Article 13 (Art. 13) of the Convention,

which reads:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The applicants' complaint under Article 13 (Art. 13) is closely

linked to their complaint under Article 6 para. 1 (Art. 6-1) of the

Convention, which the Commission has found above to be manifestly

ill-founded. It follows that the complaint under Article 13 (Art. 13)

of the Convention must also be rejected on the same grounds.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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IPSONIUS v. SWEDEN

IPSONIUS v. SWEDEN