Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13635/88

by Annette NORDBORG

against Sweden

The European Commission of Human Rights sitting in private

on 4 April 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

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 7 September 1987

by Annette Nordborg against Sweden and registered on 29 February 1988

under file No. 13635/88;

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 applicant, may be

summarised as follows.

The applicant is a Swedish citizen, born in 1966. She is an

employee in a geriatric hospital and resides in Östersund. Before the

Commission the applicant is represented by Mr. Gunnar Hillström, a

lawyer practising in Östersund.

The applicant has a son Pierre, born in 1984. He was taken

into care in 1984. On 9 November 1986 the applicant gave birth to a

daughter, Jennie.

On the same day Jennie was taken into immediate care pursuant

to a decision by the Chairman of the Social Council (socialnämnden) in

Östersund. After about a week Jennie was taken to a foster home where

she is still living.

On 18 November 1986 the immediate care order was confirmed by

the County Administrative Court (länsrätten) of the County of Jämtland.

The Court found that it was likely that Jennie needed care under the

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

med särskilda bestämmelser om vård av unga; "the 1980 Act") and that

the Court's decision on care could not be awaited because of the risk

to Jennie's health and development. The applicant appealed to the

Administrative Court of Appeal (kammarrätten) of Sundsvall, which

confirmed the decision on 8 December 1986.

In the meantime, the Social Council lodged a request with the

County Administrative Court for an order that Jennie be taken into

care pursuant to the 1980 Act.

The County Administrative Court held a hearing in the case at

which the applicant was present and assisted by counsel. The Court

heard seven witnesses (three at the applicant's request) and two

psychologists as experts. The presiding judge had previously taken the

decision of 18 November 1986 concerning the immediate care order. He

was now assisted by two lay assessors. In a judgment of 22 December 1986

the Court ordered that Jennie be taken into care.

The applicant appealed to the Administrative Court of Appeal in

Sundsvall, which held a hearing. The Court was composed of three

judges and two lay assessors. The three judges had previously taken

the decision of 8 December 1986.

At the hearing the applicant was present and assisted by

counsel. One of the psychologists was heard again as an expert. In a

judgment on 26 February 1987 the Administrative Court of Appeal

confirmed the judgment of the County Administrative Court. The Court

stated inter alia:

"The Administrative Court of Appeal has to decide, on the

basis of the findings concerning (the applicant's) person and

her present living conditions, whether or not she would be

able, on her own, to give her daughter the necessary care.

The question whether it was justified or not to admit (the

applicant) to a special school for the mentally retarded or

the fact that she has previously been the object of special

measures by the public authorities is not in itself decisive.

The assessment shall be made in view of the findings concerning

her ability under her prevailing circumstances. In this

respect, the facts indicate no deficiency in her intellectual

and emotional capacity which would appear to exclude that she

could take care of the daughter herself, provided however that

she receives considerable support from others. It seems

impossible to get such necessary assistance from anybody

closely related to the applicant. (The applicant) has firmly

stated that she is opposed to any co-operation with the Social

Council. The Administrative Court of Appeal finds that her

statement - even if it may be the result of the situation in

which she finds herself - must be taken as an expression of

her true attitude. It must therefore be assumed that a

favourable co-operation with supportive measures by the Social

Council will not be established.

As it is impossible to provide for such supportive measures,

which the Administrative Court of Appeal finds manifestly

necessary if (the applicant) is to take care of her child, the

Court finds that the conditions for care under the 1980 Act

are satisfied."

The applicant appealed to the Supreme Administrative Court

(regeringsrätten) which, on 10 July 1987, refused leave to appeal.

Section 1 of the 1980 Act reads as follows in its relevant

parts:

"Care is to be provided pursuant to this Act for persons

under 18 if it may be presumed that the necessary care cannot

be given to a young person with the consent of the person or

persons having custody of him and, in the case of a young

person aged 15 or over, if a similar presumption can be made

concerning his own consent.

Care is to be provided for a young person if

(1) his health or development is endangered by lack of care

or other conditions in his home, or ..."

Care orders are issued by the County Administrative Court at

the request of the Social Council.

Under Section 6 of the 1980 Act the Social Council is authorised

to order that a child be taken into care immediately. The order may be

made by the Chairman of the Social Council if the decision of the

Council cannot be awaited. The conditions for an immediate care order

are that "it is likely that the young person needs to be given care

under the 1980 Act and that "the Court's decision cannot be awaited

owing to the risk to the young person's health or development or

because the continued investigation can be seriously impeded or further

measures prevented."

An immediate care order under Section 6 of the Act must be

submitted for confirmation to the County Administrative Court within a

week from the date of the decision. The Court shall examine the

decision as soon as possible, normally within a week from the day on

which the case was submitted to the Court.

Section 8 of the Act provides that, if the Court confirms an

immediate care order, the Social Council shall apply for a final care

order within four weeks from the day on which the child was taken into

care. If the application is not made within that time limit the

immediate care order shall cease to be valid.

COMPLAINTS

1. The applicant complains that she has been the victim of a

violation of Article 8 of the Convention on the ground that her

daughter has been taken into care. The applicant maintains that

Swedish law does not satisfy the requirements as to the quality of the

law since it is too vague and does not define the scope of the

discretion conferred upon the authorities.

2. The applicant further alleges a violation of Article 6 para. 1

of the Convention on the ground that she did not receive a fair

hearing within a reasonable time after the events of 1984 on which the

findings were based. She also alleges a violation of Article 6 para. 1

on the ground that the same judges decided first on the immediate care

order and then on the final care order. She submits that the requirement

of an impartial tribunal was not satisfied.

THE LAW

1. The applicant complains that her daughter has been taken into

care and alleges a violation of Article 8 (Art. 8) of the Convention which

reads as follows:

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

family life, home and 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 finds that the taking into care of the

applicant's daughter interfered with her right to respect for her

family life 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), i.e.

whether the interference was "in accordance with the law" and pursued

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

(Art. 8-2) and whether it was "necessary in a democratic society"

for that or those aims.

The Commission recalls that it is established that the

relevant provisions in the 1980 Act with Special Provisions on the

Care of Young Persons satisfy the requirement as to the quality of the

law (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A

no. 130, pp. 30-31, paras. 60-63). In the opinion of the Commission,

there is nothing to suggest that the decision taken by the Courts in

the present case were contrary to Swedish law. The issue of taking

the child into care was examined by the competent administrative

courts up to the Supreme Administrative Court. In these circumstances,

the Commission is satisfied that the decision to take the applicant's

daughter into care was "in accordance with the law".

The Commission furthermore 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 expression "for the

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

rights and freedoms of others" (cf. above-mentioned Olsson judgment,

p. 31, paras. 64-65).

It remains to be examined whether the interference was

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

According to the established case-law the notion of necessity

implies that the interference corresponds 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" the Commission furthermore has to take into

account that 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. Olsson judgment, loc. cit., pp. 31-32,

paras. 67-68).

The Commission recalls that both the County Administrative

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

applicant was present at both hearings and was assisted by counsel on

these occasions. The County Administrative Court heard two experts as

well as seven witnesses, three of them at the applicant's request.

Before the Administrative Court of Appeal one of the experts who had

been heard by the County Administrative Court was heard again. 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 applicant was involved in the

decision-making process to a degree sufficient to provide her with the

requisite protection of her interests.

However, a decision to take a child into care 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 can be considered "relevant and sufficient"

for the purpose of Article 8 (Art. 8), the Commission has examined the

reasons adduced by the courts and the evidence available to them.

The Commission recalls the grounds on which the judgment of

the Administrative Court of Appeal of 26 February 1987 was based. The

Court found it not excluded that the applicant was emotionally and

intellectually capable of taking care of her daughter, but in the

specific circumstances of the case it was a condition that she received

considerable support from closely related persons or from the Social

Council. However, it was not possible to receive the required support

from a closely related person and the applicant had firmly opposed

co-operation with the Social Council. Consequently, the Court found

that the support which was necessary could not be ensured.

The Commission finds that these reasons are "relevant" to a

decision to take a child into care.

It further recalls that a number of reports and certificates

were available to the courts when they examined the case. Furthermore,

the Courts heard experts as well as witnesses. The Courts' judgments

accordingly were not only founded on documentation but also on the

evidence given at the hearings held before them and they had the

benefit of their own impression of the persons involved.

The Commission finds that the decision to take the applicant's

child into care was supported by "sufficient and relevant" reasons and

that, having regard to their margin of appreciation, the Swedish

authorities were entitled to find it necessary to take the applicant's

child into care. The Commission concludes that this decision 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 applicant further complains of violations of Article 6

(Art. 6) of the Convention which in the first sentence of the first

paragraph (Art. 6-1) reads:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The applicant's allegation of a violation of Article 6 para. 1

(Art. 6-1) is in substance based on three contentions, i.e. that the courts

were not impartial, that she did not receive a fair hearing and that

the condition of "reasonable time" was not satisfied.

As to the question of impartiality, the Commission recalls

that the existence of impartiality must be determined according to a

subjective test, that is on the basis of the personal conviction of a

particular judge in a given case, and also according to an objective

test, that is by ascertaining whether the judge offered guarantees

sufficient to exclude any legitimate doubts in this respect (see,

amongst other authorities, Eur. Court H.R., De Cubber judgment of

26 October 1984, Series A no. 86, pp. 86, pp. 13-14, para. 24).

As to the subjective test, the personal impartiality of a

judge must be presumed until there is a proof to the contrary. The

applicant has in no way shown that the judges concerned acted with

personal bias.

Under the objective test, it must be determined whether, quite

apart from the judge's personal conduct, there are ascertainable facts

which may raise doubts as to his impartiality. In this respect even

appearances may be of a certain importance. What is at stake is the

confidence which the courts in a democratic society must inspire in

the public and above all in the parties to the proceedings. Accordingly,

any judge in respect of whom there is a legitmate reason to fear lack

of impartiality must withdraw (cf. De Cubber judgment, loc. cit.,

Series A no. 86, p. 14, para. 26).

This implies that in deciding whether in a given case there is

a legitimate reason to fear that a particular judge lacks impartiality,

the standpoint of the complaining party is important but not decisive.

What is decisive is whether this fear can be held objectively justified.

In the present case, the fear of lack of impartiality was based

on the fact that the County Administrative Court judge who presided at

the hearing, following which the final care order was issued, had

previously taken the decision that the child should be taken into

immediate care, and that similarly, at the level of the Administrative

Court of Appeal, the judges who took part in the judgment had

previously decided on the immediate care order.

This kind of situation may occasion misgivings on the part of

a party as to the impartiality of a judge, misgivings which are

understandable but which nevertheless cannot necessarily be treated as

objectively justified. Whether they should be so treated depends on

the circumstances of each particular case.

In the present case, the judge of the County Administrative

Court and the judges of the Administrative Court of Appeal were first

called upon to examine whether an immediate care order should be confirmed

and later whether a final care order should be issued. As regards the

first examination the courts were required to examine whether it was

"likely" that a final care order would be issued and whether the

courts' final decision on the care could be awaited. This examination

involves a summary assessment of the available material, and is

different from the assessment as to whether a final care order should

be issued.

In the Commission's view, the mere fact that a judge or an

appeal judge, in a system like the Swedish one, has first to determine

a request for an immediate care order, which is a temporary measure

normally constituting an initial phase to a decision to take a child

into public care, and then to take part in the decision on the final

care order, cannot be held as, in itself, justifying fears as to his

impartiality. The Commission is therefore of the view that in the

circumstances of the case the impartiality of the tribunals was not

capable of appearing to be open to doubt and that the applicant's fear

in this respect cannot be considered objectively justified.

As to the contention that she did not have a fair hearing, the

applicant submits that the psychologist, who expressed his view on her

mental health, had not examined her since August 1983. The psychologist's

statement was in her opinion not founded on scientific methods. She

points out that a psychiatrist who examined her in February 1987 had

declared that she was not mentally retarded.

With regard to the judicial decisions of which the applicant

complains in this connection, the Commission first recalls that, in

accordance with Article 19 of the Convention, its only task is to

ensure the observance of the obligations undertaken by the Parties to

the Convention. It is not competent to deal with an application

alleging that errors of law or fact have been committed by domestic

courts, except where it considers the rights and freedoms set out in

the Convention (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31

and 45). In this respect the Commission recalls that the applicant's

case was dealt with by three different courts, i.e. the County

Administrative Court, the Administrative Court of Appeal and the

Supreme Administrative Court.

As regards the procedure before the courts, the Commission

notes that hearings were held before the County Administrative Court

and the Administrative Court of Appeal. During these hearings the

applicant was assisted by counsel. Several witnesses and other

persons were heard, including experts who had issued certificates.

There is no indication that the applicant was prevented from

presenting her arguments and views to the courts or that the procedure

was in any other respect unfair. The Commission is not called upon to

examine whether the Courts correctly assessed the evidence before them.

The applicant further claims that the proceedings have not

been concluded within a reasonable time. The Commission here notes

that, on 9 November 1986, Jennie was taken into care. The proceedings

terminated on 10 July 1987 when the Supreme Administrative Court

refused leave to appeal.

Consequently, the proceedings lasted approximately eight months.

The Commission finds that the duration of these proceedings, at three

levels of jurisdiction, is not excessive for the purpose of Article 6

para. 1 (Art. 6-1). The fact that the courts took into consideration

facts which dated back to 1984 cannot change this assessment.

Consequently the Commission finds no appearance of a violation

of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that also this part of the application is 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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NORDBORG v. SWEDEN

NORDBORG v. SWEDEN

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