Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14061/88

by Yvonne and Ioannis ZISOPOULOS

against Sweden

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, 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 10 July 1988

by Yvonne and Ioannis ZISOPOULOS against Sweden and registered

on 26 July 1988 under file No. 14061/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicants, Mr. Ioannis and Mrs. Yvonne Zisopoulos, who

are husband and wife, were born in 1947 and 1952 respectively. They

are Swedish citizens and live at Spånga in Sweden. By profession,

the husband is a shop manager and the wife is a cleaner. Before the

Commission the applicants are represented by Mr. Lennart Möller, a

lawyer practising in Stockholm.

The applicants have a son, Konstantin, born in 1984.

On 5 July 1984, the day after Konstantin was born, the Eastern

Social District Council (östra sociala distriktsnämnden) of the

municipality of Solna took Konstantin into immediate care pursuant to

Section 6 of the 1980 Act with Special Provisions on the Care of Young

Persons (lagen med särskilda bestämmelser om vård av unga; "the 1980

Act"). Konstantin was placed in the Klingsta children's home.

On 30 July 1984, on the basis of a report on social and

medical investigations, the District Council filed a request with the

County Administrative Court (länsrätten) of Stockholm that the

applicant's son be taken into care pursuant to Section 1 para. 2 (1)

of the 1980 Act. On 20 August 1984 the County Administrative Court

ordered that the son be taken into care under the 1980 Act.

The applicants appealed to the Administrative Court of Appeal

(kammarrätten) of Stockholm. On 26 February 1985 the Administrative

Court of Appeal confirmed the judgment of the County Administrative

Court.

The applicants appealed to the Supreme Administrative Court

(regeringsrätten), which refused leave to appeal on 7 July 1985.

In September 1985 Konstantin was placed in the foster home of

Mr. and Mrs. Agermo in the Stockholm area, where he is still staying.

In the meantime on 30 April 1985, the Social Council decided

pursuant to Section 16 (1) of the 1980 Act to restrict the applicants'

access to their son to once a month and once at Christmas and Easter

and on the son's birthday and name-day. The applicants appealed to the

County Administrative Court which, on 20 July 1985, confirmed the

restrictions.

Following a request of 11 February 1986 by the applicants for

the termination of the care of their son, it was decided that the

applicants should participate in an investigation at the Child

Psychiatric Ward at the Karolinska Hospital, where the relations

between the parents and their son should be observed. It was also

decided that the National Board of Health and Social Welfare

(socialstyrelsen) should be consulted.

The applicants thus stayed with their son daily from

7 May to 3 June 1986 at the Child Psychiatric Ward of the hospital.

On 16 January 1987 the Social Council rejected the request for

termination of the care on the ground that the applicants' psychological

condition constituted a danger to their son's health and development.

The decision was based mainly on the medical report obtained from the

Child Psychiatric Ward and the statement from the National Board of

Health and Social Welfare, which both concluded that the parents were

still unable to respond to the child's emotional needs and to satisfy

his demand for security.

The applicants appealed to the County Administrative Court.

They applied for the termination of the care; in the alternative they

demanded that access to their son be extended. Having been considered

schizophrenic, the applicants raised the question whether a schizophrenic

person is generally unable to take care of a child. The Court held

hearings on 26 and 27 May and on 22 June 1987 at which the applicants

were present and assisted by counsel under the Legal Aid Act

(rättshjälpslagen). The son was represented by officially appointed

counsel. At the request of the applicants, Dr. D., a psychologist who

since November 1984 had been in continuous contact with the applicants,

gave evidence, as did some other witnesses. Chief doctor G.B. at the

Child Psychiatric Ward was heard as a witness. The nurse K.H. and the

welfare officer H.K., both of whom were members of the team observing

the family during the investigation at the Child Psychiatric Ward, were

heard as witnesses. During the hearings various written opinions from

the medical files were examined.

In its judgment of 20 July 1987, the County Administrative

Court rejected the appeal. It stated inter alia:

"The investigation indicates that Ioannis' as well as

Yvonne's health is better or in any case more stable than

earlier. The Court can therefore no longer maintain that it

is the parents' illnesses or what remains thereof that cause

their ability or inability to satisfy Konstantin's needs,

which it is now the task for the Court to examine.

...

As regards Ioannis' and Yvonne's ability to take care of

Konstantin, the examination indicates the following. Both

parents have difficulties to satisfy Konstantin's emotional

needs. As to their practical ability, when taking care of

Konstantin, Yvonne proves to be awkward and Ioannis is not

interested in helping her with the practical problems that the

care situation demands, except for shorter periods when

elements of pleasure and play characterise the situation. The

parents' undeveloped emotional relation does not allow them to

realise and satisfy their own needs, which in itself makes the

situation more complicated.

Having regard to this the Court finds that Ioannis and

Yvonne (cannot be regarded as) able to take care of

Konstantin or to give him the security which is required

of them for terminating the public care..."

As to the applicants' question whether a schizophrenic person

is generally unsuitable to care for children, the Court replied as

follows:

"The Court always examines each case on the basis of the

facts in the particular case. The Court's experience is

that schizophrenia is always a serious element of risk when

it comes to satisfying another person's needs, in particular

emotional needs. In any case when the individual has an

attack of his sickness he is normally unable to cope with

his own and others' practical needs. In practice the

decisive factors in the individual case are the parent

constellation and what other close human contacts the sick

parent has."

The applicants appealed to the Administrative Court of Appeal

in Stockholm which, on 10 November 1987, held a hearing at which the

applicants were present and were assisted by a lawyer under the Legal

Aid Act. The child was represented by officially appointed counsel.

In a judgment of 4 December 1987 the Administrative Court of Appeal

confirmed the judgment of the County Administrative Court. The Court

shared the County Administrative Court's assessment that the

applicants' psychological illness, although the parents still suffered

from a lingering psychological weakness, in itself no longer prevented

lifting the public care.

The Administrative Court of Appeal found however that the

result of the investigation and other facts of the case, submitted to

the County Administrative Court and being decisive for its judgment,

were not entirely conclusive. In making an overall assessment the

Court stated:

"The acute deficient conditions in the home environment,

which were at the basis of the decision on public care

of the child under the 1980 Act, cannot be considered as

continuing. Having regard to the general consideration

accounted for above and with particular regard to the result

of the investigation carried out at the Child Psychiatric

Ward, the Administrative Court of Appeal finds that it is

still not possible to transfer to the parents the

responsibility for the care of their son. The care under

the 1980 Act shall therefore continue."

The Court also considered that an extended right of access

could probably involve a more mutual contact between the parents and

Konstantin which could be to Konstantin's advantage in his further

development.

Two lay assessors dissented. They considered that the care

order should be lifted.

The applicants appealed to the Supreme Administrative Court

(regeringsrätten) which, on 29 January 1988, refused leave to appeal.

COMPLAINTS

1. The applicants complain that Konstantin's separation from his

natural parents and his home without any justifiable reason violates

Article 8 of the Convention.

2. The applicants further allege that the background of one of

the applicants - his specific culture and way of life as a Greek

immigrant - may explain the above encroachment on the applicants'

rights. In their view this is an interference with their rights under

Article 8 of the Convention which is not based on objective grounds

but on the national origin of one of the applicants and hence

constitutes a violation of Article 14 of the Convention.

THE LAW

1. The applicants allege a violation of Article 8 (Art. 8) of the

Convention on the ground that their son is kept in public care without

sufficient reasons.

Article 8 (Art. 8) of the Convention reads as follows:

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

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission recalls that the mutual enjoyment by parent and

child of each other's company constitutes a fundamental element of

family life. Furthermore, the natural family relationship is not

terminated by reason of the fact that the child is taken into public

care (see the W. v. the United Kingdom judgment of 8 July 1987,

Series A no. 121, p. 27, para. 59). It follows that the measure at

issue, i.e. the decision not to terminate the care, amounted to

an interference with the applicants' right to respect for their family

life as protected by Article 8 para. 1 (Art. 8-1) of the Convention.

It must therefore be examined whether this interference was justified

under the terms of Article 8 para. 2 (Art. 8-2). In this respect the

Commission recalls that three conditions must be satisfied: the

interference must be "in accordance with the law", it must pursue one

or more of the legitimate aims enumerated in para. 2 of Article 8

(Art. 8-2) and it must be "necessary in a democratic society" for

that or those legitimate aims.

It is established that the relevant provisions of the 1980 Act

with Special Provisions on the Care of Young Persons satisfy the

requirement of the quality of the law inherent in the notion of "law"

(cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130,

pp. 30-31, paras. 60-63). The Commission finds no elements in the

present case which suggest that the refusal to terminate the care was

contrary to Swedish law. In these circumstances the Commission is

satisfied that the interference was taken "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

The Commission further considers that the interference had a

legitimate aim under Article 8 para. 2 (Art. 8-2), namely the

interests of the child, which falls under the expressions "for the

protection of health and morals" and "for the protection of the

rights and freedoms of others".

It remains to be determined whether the interference was

"necessary in a democratic society" in the interests of the child.

According to the case-law the notion of necessity implies that

the interference corresponds to a pressing social need. A margin of

appreciation is left to the Contracting States. However, the

Convention organs' review is not limited to ascertaining whether a

respondent State has exercised its discretion reasonably, carefully

and in good faith. They cannot confine themselves to considering the

relevant decisions in isolation but must look at them in the light of

the case as a whole. They must determine whether the reasons adduced

to justify the interference at issue are "relevant and sufficient"

(cf. above-mentioned Olsson judgment, pp. 31-32, paras. 67-68).

In the present case, the applicants allege that the refusal to

terminate the care of the child was based on insufficient reasons.

The Commission recalls that both the County Administrative

Court and the Administrative Court of Appeal held oral hearings. The

applicants were present at both hearings and assisted by a lawyer on

these occasions. The Courts heard several persons, including the head

of the Child Psychiatric Ward, where the applicants and their child

had been observed. Also the nurse and the welfare officer belonging

to the team at the Child Psychiatric Ward were heard. Reports

compiled by the social administration and medical files and reports

compiled by the Child Psychiatric Ward were available to the courts.

These reports were in turn supported by a number of persons well

acquainted with the case. Before the courts the applicants had the

possibility of presenting any argument or document, which in their

opinion could be relevant. Having regard to these facts the

Commission finds that, insofar as certain procedural requirements are

implicit in Article 8 (Art. 8), these requirements were satisfied since the

applicants were involved in the decision-making process to a degree

sufficient to provide them with the requisite protection of their

interests.

However the refusal to terminate the care of the child must

also be supported by sufficiently sound and weighty considerations

since such a decision is a serious interference with the right

protected under Article 8 para. 1 (Art. 8-1). In order to determine

whether in the present case the reasons given can be considered

"relevant and sufficient" for the purposes of Article 8, the

Commission must further examine the reasons adduced by the courts

and the evidence that was available to them.

As regards the reasons for the refusal to terminate the care of

the child, the Commission notes the findings of the courts as quoted

above. The Administrative Court of Appeal found that, although the

applicants still suffered from a lingering psychological weakness, this

was not in itself sufficient for continuing the care. The Court

nevertheless found that at the relevant time it was not yet possible to

lift the care order. This finding was based, in particular, on the

results of the investigation carried out at the Child Psychiatric Ward.

The Commission further recalls that the refusal to terminate care was

based on a report compiled by the social administration, including the

medical report compiled by the Child Psychiatric Ward, where the family

had stayed for investigation. These reports were in turn supported by

statements from persons well acquainted with the case, including a

chief doctor, a nurse and a welfare officer. Above all, the County

Administrative Court's judgment, as well as that of the Administrative

Court of Appeal, were founded not only on written material but also on

hearings in the presence of the applicants.

In this context, the Commission observes that in general it is

justifiable not to terminate public care unless the improvement in the

circumstances that occasioned it appears with reasonable certainty to

be stable; it would clearly be contrary to the interests of the child

concerned to be restored to his parents, only to be taken into care

again shortly afterwards (cf. above-mentioned Olsson judgment, p. 35,

para. 76 in fine).

In the light of the foregoing the Commission finds that the

Swedish authorities had "sufficent" reason for thinking that it was

necessary for the care decision to remain in force.

Accordingly the Commission finds that the refusal to terminate

the care can be regarded as "necessary in a democratic society"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention in the

interests of the child.

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 applicants further complain that the first applicant has

been discriminated against on account of his national origin. They

allege a breach of Article 14 (Art. 14) of the Convention, which prohibits

discrimination on the grounds of sex, race, colour, language, religion,

political or other opinion, national or social origin, association with

a national minority, property, birth or other status, in relation to

the enjoyment of the rights and freedoms set forth in the Convention.

However, the Commission finds nothing in the case file to

substantiate this allegation.

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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ZISOPOULOS v. SWEDEN

ZISOPOULOS v. SWEDEN

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