Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12366/86

by Antero RIEME

against Sweden

The European Commission of Human Rights sitting in private

on 5 July 1989, the following members being present:

MM. J.A. FROWEIN, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 28 July 1986 by

Antero RIEME against Sweden and registered on 1 September 1986 under

file No. 12366/86;

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

Rules of Procedure of the Commission;

Having regard to the written observations submitted by the

Government on 26 February 1988 and by the applicant on 26 April 1988

as well as the parties' submissions at the hearing held on

5 July 1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, which do not appear to be in dispute

between the parties, may be summarised as follows:

The applicant is a Finnish citizen born in 1940 and a resident

of Tumba, Sweden. He is metal worker by profession. Before the

Commission he is represented by Mr. Lennart Hane, a lawyer practising

in Stockholm.

The applicant has a daughter, Susanne, together with Mrs.

AG. Susanne was born on 28 October 1976. When she was eleven

months old, the Southern Social District Council (södra sociala

distriktsnämnden) of Södertälje, on 26 September 1977, decided that the

daughter should be taken into care pursuant to Sections 25(a) and 29

of the Child Welfare Act (barnavårdslagen). Shortly thereafter

Susanne was placed in a foster home. She still lives in this foster

home. Mrs. AJ had the legal custody of the daughter from her birth.

On 30 November 1981 the applicant instituted civil proceedings

before the District Court (tingsrätten) of Södertälje requesting that

the custody of the daughter be transferred to him. By a judgment of

28 September 1983 the District Court ordered that the legal custody of

Susanne be transferred to the applicant. Mrs. AJ appealed against the

judgment to the Svea Court of Appeal (Svea hovrätt), which on 21 June

1984 confirmed the judgment of the District Court. This judgment

acquired legal force.

Provisions regulating the custody of a child appear in the

Parental Code (föräldrabalken). A decision on taking a child into

public care does not affect the legal status of the parent or

parents as custodians, even though they cannot exercise all their

rights and obligations as custodians in the same way as other parents.

Similarly, a decision on the custody of a child does not affect a

care order. Care orders can only be issued by the social authorities

and the Administrative Courts. A decision to alter a parent's legal

status as a custodian can only be made by a court order issued by

an ordinary court.

On 19 October 1983 the applicant submitted a request to the

Social District Council that the care of his daughter be terminated.

The Social District Council held a hearing at which the applicant, his

wife and his representative, Mr. Hane, were present. On 16 October

1984 the Social District Council decided to terminate the care of the

daughter but, pursuant to Section 28 of the Social Services Act

(socialtjänstlagen), to prohibit the applicant from taking Susanne

from the foster home, on the ground that there was a risk which was

not of a minor character that the daughter's mental health would be

harmed if she were separated from the foster home.

Section 28 reads:

"The Social Council may for a certain period of time or until

further notice prohibit the custodian of a minor from taking

the minor from a home referred to in Section 25 (i.e. a foster

home), if there is a risk, which is not of a minor nature, of

harming the child's physical or mental health if the child is

separated from that home."

The decision of the Council was based on a report, submitted

to it by the social welfare officers responsible for the matter. This

report reflects the different views and considerations that should be

taken into account if Susanne were to move to her father. A

psychiatric statement by an authorised psychologist, Jaakko Rantanen,

and a senior physician, Dr. Sari Granström, both at the Institution

for Child and Youth Psychiatry in Stockholm (PBU) is appended to the

report. It contains the following statement (pages 2 and 3):

"A change of home for Susanne would mean many anguishing

changes for her, for instance the loss of objects of

security (her foster parents and foster siblings), loss of

friends at home and at school, loss of a familiar

environment and daily routines, etc. At the same time it

would mean that all the new things she would need to be

acquainted with, for instance new friends, a new school and a

new physical environment, new daily routines, etc. would be

heavy stress factors that her insufficient inner structure

would scarcely be able to cope with in a satisfactory way.

She would also lose the ego support from secure adults (her

foster parents) that she still needs. She has not yet been

able to develop an equivalent relationship with her biological

father and his wife. Her chances of mastering everyday life

and of being able to develop would thus be rendered more

difficult in two ways: on the one hand her insufficient

ego functions would be confronted with an unreasonable

adaptation task through too many changes at one time, and on

the other, much required support for her ego development

would be taken away from her immediately when facing such

strains. Susanne has shown that she has a tendency to react

with her body to significant changes. A probable consequence

of a move would be that the psychosomatic problems she had

today, enuresis, would be aggravated, for example by her

starting to wet herself during the day too. Another

probable consequential psychosomatic symptom is recurring

stomach pains. There is also a risk of increased reserve

and depression.

A move to Susanne's biological father requires that the

relationship between him, his present wife and Susanne be

developed and deepened. Furthermore, it requires that

Susanne is sufficiently mature for the move to be discussed

with her, with its advantages and disadvantages and related

feelings of loss and sorrow, which has as yet proved

impossible in her case according to the investigation at

PBU. As a consequence, Susanne should be allowed to

continue to develop and mature within the family frame that

has been her home for more than six years. This also means,

in our opinion, that she should not be subjected to new

examinations connected with her return home within the next

few years, but Susanne's contact with her father needs to be

continued and developed in collaboration with her foster

parents. The regular contact between Susanne and her

biological father has meant that Susanne has been able

to create psychological childhood ties with her biological

origin. If this development, which has already begun, shall

have a chance to continue, Susanne's biological father needs a

great deal of support in order to be capable of maintaining

and further developing his contact with his daughter based on

the daughter's needs."

The applicant appealed against the prohibition on removal to

the County Administrative Court (länsrätten) of the County of

Stockholm. The Court held a hearing in camera on 22 January 1985 at

which hearing the applicant and his wife were present and represented

by Mr. Hane. The foster parents were heard as witnesses at the request

of the applicant. Furthermore, at the request of the Social District

Council, the chief doctor Sari Granström and the psychologist

Jarkko Rantanen were heard. In the judgment dated 25 January 1985,

the County Administrative Court rejected the applicant's appeal and

stated as follows in its reasons:

"The District Council has decided to terminate the care of

Susanne. It follows that (the applicant's) personal

circumstances do not as such constitute an obstacle to sending

the girl home. (The applicant) is of the opinion that Susanne

is not at ease in the foster home which is sometimes expressed

in her bashful attitude towards other children.

From the District Council, it has been alleged that a removal

of Susanne would involve a risk of harm to her mental health

which is not of minor character. In support of this, the

Council has invoked a child psychiatric certificate issued by

Sari Grauström and Jaakko Rantanen. The information given in

the certificate has been confirmed by them at the hearing. It

suggests that an immediate removal of Susanne would involve

the serious consequences alleged by the District Council, i.e.

that Susanne - who is a sensitive, fragile, and vulnerable

girl - will lose her security and show psychosomatic symptoms

such as enuresis - bedwetting - and stomach pains as well as

depressive tendencies. In addition, it must be recalled that

the placement in the foster home - where Susanne apparently

feels safe and at home in all respects - must be assessed to

be entirely compatible with her best interests. Against this

background, bringing the child home must at present be

considered to involve a risk which is not of a minor

character. When balancing this risk against the interests of

the custodian - for which the Court, as such, has great

sympathy - the County Administrative Court finds the

preponderant reasons to be in favour of letting Susanne, until

further notice, stay in the (foster home)."

The applicant appealed against the judgment to the

Administrative Court of Appeal (kammarrätten) of Stockholm. The

applicant requested that the psychologist Lars Billing should be

appointed as an expert. By a decision of 13 June 1985 the Court

rejected this request stating that there were no reasons to ask for an

opinion from an expert under Section 24 of the Administrative Court

Procedure Act (förvaltningsprocesslagen). The Court noted however

that the applicant was not prevented from submitting such an opinion

himself or otherwise from submitting the evidence which he wanted to

invoke in the case.

By a judgment of 2 August 1985, the Administrative Court of

Appeal rejected the appeal. In its reasons, the Court stated as

follows:

"The aim of the provisions of Section 28 of the Social

Services Act is to safeguard the best interests of the

child. Among the circumstances which must be considered

in that context is the age of the child, its abilities and

emotional ties. Furthermore regard must be had, inter

alia, to the child's own wishes and the time that the

child has been cared for in the home from which it is

supposed to be removed.

(Susanne) has been cared for in the foster home since

October 1977 and thus for the major part of her life.

She is considered to be a sensitive child and has had

certain psychosomatic symptoms. After the County

Administrative Court's examination of the question of

the removal of Susanne, it appears that the relationship

between Susanne and (the applicant) has developed in a

favourable manner. The Administrative Court of Appeal

finds, however, that an enforced removal still involves

a risk of harming Susanne's mental health, a risk which

is not of a minor character. The request to lift the

prohibition from taking Susanne away from the foster home

cannot therefore be accepted. The question as to when

the prohibition can be lifted is dependent upon how the

contacts between (the applicant) and Susanne will develop in

the future. The Administrative Court of Appeal finds that

the prohibition cannot at present be limited in time."

The applicant appealed to the Supreme Administrative Court

(regeringsrätten) which, on 26 March 1986, refused to grant leave to

appeal.

COMPLAINTS

1. The applicant alleges a breach of Article 6 of the Convention.

He submits that he has not been entitled to an impartial hearing

within a reasonable time. The main argument against his request for

having his daughter returned to him is the long time that the child

has spent in the foster home. However, in 1978 the applicant was

already capable of taking care of his daughter. Ever since the

proceedings concerning the legal custody were instituted on 30

November 1981, the proceedings have deliberately and with success been

delayed not only by the social authorities but also by the courts. As

an example, it took a remarkably long time for the Supreme

Administrative Court to refuse leave to appeal. Such a decision would

normally take six weeks, but in this case it took almost eight months.

The case concerning the legal custody in the District Court, the

outcome of which ought to be self-evident since the mother was not

capable to retain custody, took almost two years.

Moreover, the Administrative Court of Appeal has refused to

appoint a psychiatrist as an expert. This seriously weakened the

applicant's procedural position.

2. The applicant also alleges a breach of Article 8 of the

Convention. He submits that the insurmountable difficulties which he

has met since 1978 show that the social authorities do not respect his

and his daughter's family life. The same is true of the handling of

the case thereafter. No health reasons have been proven. The

applicant has had his own home for many years and his situation is

well-established. He is competent to take care of and take the

responsibility for his daughter. But he has been treated almost as a

dangerous delinquent with the inclination of seriously harming his

daughter. The child psychiatric investigations which support the

social authorities' power over the daughter do not fulfil any

reasonable demands on scientific methods or knowledge but are an

adaptation to the bureaucracy's request for power and superiority and

serve the bureaucracy's and the child psychiatrist's own

interests.

Moreover there is a violation of the family's rights since a

right of access in the sense that the child should have a right to

live together with the father has not been arranged. If a comparison

is made with separated parents, the separated father is normally

entitled to have his child with him regularly as well as during

vacations, if there are no special reasons against it. However, when

the bureaucracy acts as substitute parents, it is not possible for the

natural parent to have a right of access comparable to that of a

separated parent.

3. The applicant also alleges a violation of Article 17 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 July 1986 and registered

on 1 September 1986.

On 6 October 1987 the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits limited to the complaints under Article 8

of the Convention.

The Government's observations were dated 26 February 1988 and

the applicant's observations in reply were dated 26 April 1988.

On 9 December 1988 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

The hearing was held on 5 July 1989, when the parties were

represented as follows:

The Government

Mr. Hans CORELL Ambassador, Under-Secretary for

Legal and Consular Affairs,

Ministry for Foreign Affairs,

Agent

Mr. Leif LINDGREN Legal Adviser, Ministry of Health

and Social Affairs

Mr. Pär BOQVIST Legal Adviser, Ministry for

Foreign Affairs

The applicant

Mr. Lennart HANE Lawyer

The applicant and his wife were also present.

THE LAW

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

(Art. 6-1) of the Convention, which reads as follows in its first

sentence:

"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 alleges that his case has not been determined

"within a reasonable time" as required by Article 6 para. 1 (Art. 6-1).

He refers to the fact that he instituted proceedings on 30 November

1981 for the purpose of having the civil custody of his daughter

transferred to him, and that the issue concerning the prohibition on

removal was terminated finally on 26 March 1986 when the Supreme

Administrative Court refused leave to appeal.

The Commission considers that the present case involves, on

the one hand, proceedings relating to the legal custody of the child

and, on the other hand, proceedings concerning the prohibition on

removal. These two sets or proceedings were handled by different

courts and must be separated also for the purposes of the examination

under Article 6 (Art. 6) of the Convention.

It is another matter that this issue of the length of the

different proceedings is also a significant element in the examination

of the applicant's complaint under Article 8 (Art. 8) of the

Convention. In that context the different proceedings must be seen as

a whole. Consequently, the Commission's examination under Article 6

(Art. 6) of the length of the proceedings will not prejudge its

examination of the complaints under Article 8 (Art. 8) of the

Convention.

Under Article 26 (Art. 26) of the Convention, the Commission

may only deal with a matter which has been submitted to it within six

months from the final decision on the domestic level. As regards the

proceedings concerning legal custody they were terminated on 21 June

1984. Since the present application was introduced on 28 July 1986,

which is more than six months later, it follows that the complaints

concerning the proceedings over the legal custody have been introduced

out of time and must be rejected pursuant to Article 27 para. 3

(Art. 27-3) of the Convention.

As regards the duration of the proceedings concerning the

prohibition on removal, the Commission notes that the Social Council

decided on 16 October 1984 to prohibit removal. The applicant's

appeal to the Administrative Courts was finally rejected when the

Supreme Administrative Court refused leave to appeal on 26 March 1986.

The time to be taken into account is thus approximately 17 months. In

this period the applicant's appeal was examined by three courts;

first by the County Administrative Court which, after a hearing,

delivered judgment on 25 January 1985, then by the Administrative

Court of Appeal which delivered judgment on 2 August 1985 and finally

by the Supreme Administrative Court.

The Commission considers that, although it is of great

importance that matters of this nature are dealt with speedily, the

duration of the proceedings, in this instance, cannot be said to have

exceeded a "reasonable time" within the meaning of Article 6 para. 1

(Art. 6-1) (cf. Eriksson v. Sweden, Comm. Report 14.7.88, paras. 237 -

238 and Eur. Court H.R., Eriksson judgment of 22 June 1989, Series A

no. 156, para. 77).

The applicant further complains that the Administrative Court

of Appeal did not appoint a psychologist as an expert in accordance

with his request.

The Commission observes that the Court refused to obtain an

opinion from the proposed psychologist as a court expert. However,

the Court reminded the applicant that he could himself submit such an

opinion to the court, or any other evidence he wished to invoke. The

applicant apparently never submitted such an opinion (cf. No. 11119/84,

Dec. 17.10.85, unpublished).

In these circumstances, and noting that the applicant was

represented by legal counsel before the Administrative Court of

Appeal, the Commission finds no indication of a violation of Article 6

para. 1 (Art. 6-1) in this respect.

The applicant finally maintains that he did not receive a

"fair hearing".

In accordance with Article 19 (Art. 19) of the Convention, the

Commission's task is only to ensure the observance of the obligations

undertaken by the Contracting States in the Convention. The

Commission 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 that such errors might have involved a possible

violation of any of the rights or freedoms set out in the Convention

(cf. e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 ;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45).

The Commission has examined the case in the light of the

applicant's submission on this point. It notes that the applicant was

legally represented throughout the proceedings, that there was a

hearing before the County Administrative Court and that both the

County Administrative Court and the Administrative Court of Appeal

delivered fully reasoned judgments.

In such circumstances, and in the absence of any elements

suggesting an unfair hearing, the Commission finds that there is no

indication that the procedure followed failed to satisfy the condition

of a "fair hearing".

The Commission concludes that the applicant's complaints under

Article 6 (Art. 6) of the Convention are manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, insofar

as they are not inadmissible for failure to comply with the six months

rule.

2. The applicant also complains under Article 8 (Art. 8) of the

Convention that the maintenance in force of the prohibition on removal

over such a long period constitutes a violation of that provision.

The applicant further refers to Article 17 (Art. 17) of the

Convention.

Article 8 (Art. 8) of the Convention 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."

The Government make no objection to the admissibility of the

application under Article 26 (Art. 26) of the Convention, apart from

the events which have taken place in the period after the Supreme

Administrative Court refused leave to appeal on 26 March 1986. The

Government submit that, in respect of the period thereafter, the

applicant may submit a fresh request that the prohibition on removal

be quashed. Since the applicant has not done so he has not exhausted

domestic remedies in this regard. As regards the merits of the

complaint, the Government submit that, although the prohibition on

removal constitutes an interference with the applicant's right to

respect for family life as guaranteed by Article 8 para. 1 (Art. 8-1),

this interference is justified under the terms of Article 8 para. 2

(Art. 8-2) as being a measure taken "in accordance with the law" and

"necessary in a democratic society" to protect the child's interests.

The Government conclude that the complaint should be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

The applicant submits that the Commission must also examine

what has happened after March 1986. The prohibition on removal applies

until further notice, and there are no new circumstances, apart from

the lapse of time, which could justify a fresh application to have the

prohibition quashed. Furthermore, the applicant fears that, if he were

to introduce such an application, he would be refused access to his

child and the social authorities might start proceedings to take away

from him the legal custody over the child.

The Commission recalls that, according to its constant

practice, it will consider the facts of a case as they stand at the

time of the examination of the case. In so doing, the Commission will

take into account facts which may have occurred in the course of the

proceedings before it and after the final domestic decision insofar as

those facts constitute a continuation of the facts on which the

application is based. If those facts are susceptible of a possible

re-assessment under domestic law, the applicant would normally be

required under Article 26 (Art. 26) of the Convention to request a

reconsideration of the case. However, where, as in the present case,

there are no significant new facts, apart from the lapse of time, it

cannot be required that the applicant again tries the remedy referred

to by the Government.

It follows that this part of the application cannot be

rejected under Article 27 para. 3 (Art. 27-3) in conjunction with

Article 26 (Art. 26) of the Convention for failure to exhaust domestic

remedies.

As to the merits, the Commission considers that the

applicant's complaints raise in particular the issue whether, in the

circumstances of the present case, the prohibition on removal was

justified under the second paragraph of Article 8 (Art. 8-2), i.e.

whether it was "in accordance with the law" and "necessary in a

democratic society" in the child's interest.

After an examination of this issue in the light of the

parties' submissions the Commission considers that it raises questions

of fact and law which are of such a complex nature that their

determination requires an examination of the merits. This aspect of

the application cannot therefore be declared inadmissible as being

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

(Art. 27-2) of the Convention and no other ground for declaring it

inadmissible has been established.

For these reasons, the Commission

DECLARES INADMISSIBLE the complaints under Article 6

(Art. 6) of the Convention

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the remainder of the application.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J.A. FROWEIN)

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RIEME v. SWEDEN

RIEME v. SWEDEN

LEXI