NYBERG v. SWEDEN
Doc ref: 12574/86 • ECHR ID: 001-271
Document date: October 4, 1988
- Inbound citations: 0
- •
- Cited paragraphs: 0
- •
- Outbound citations: 0
AS TO THE ADMISSIBILITY OF
Application No. 12574/86
by Birgitt and Lars Erik NYBERG
against Sweden
The European Commission of Human Rights sitting in private
on 4 October 1988, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
Mr. C. L. ROZAKIS
Mrs. J. LIDDY
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 9 June 1986
by Birgitt and Lars Erik NYBERG against Sweden and registered
on 2 December 1986 under file No. 12574/86;
Having regard to:
- the first report provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Government's written observations dated 4 September 1987;
- the applicants' written observations in reply dated
17 November 1987;
- the second report provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the submissions of the parties at the hearing on
4 October 1988;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties'
submissions, may be summarised as follows:
The applicants are Mr. and Mrs. Nyberg, born in 1944 and 1954
respectively. Mr. Nyberg is a Swedish citizen and Mrs. Nyberg is a
German citizen. They reside at Neukirchen-Vluyn in the Federal
Republic of Germany. Before the Commission the applicants are
represented by Mr. Lennart Hane, a lawyer practising in Stockholm.
The applicants have two sons: Björn born in 1981 and Ralf
born in 1984.
On 3 December 1981 the Social District Council No. 6 (sociala
distriktsnämnden nr. 6) in Stockholm decided to take Björn into care
pursuant to Sections 25 (a) and 29 of the 1960 Act on Child Welfare
(barnavårdslagen). On 23 February 1982 the County Administrative
Court (länsrätten) of Stockholm decided to take Björn into care under
Section 1 para. 2 sub-para. 1 of the 1980 Act with Special Provisions
on the Care of Young Persons (lagen med särskilda bestämmelser om vård
av unga). The reasons for the care order were that the mental state
of the parents involved a danger to Björn's development. Björn was
placed in a foster home at Skirebo outside Jönköping on 8 October 1982.
On 25 October 1982 the applicants submitted a request to the
Social Council that the care of their son be terminated. The request
was rejected by the Council on 16 June 1983. The applicants' appeals
to the County Administrative Court, the Administrative Court of
Appeal (kammarrätten) and the Supreme Administrative Court
(regeringsrätten) were unsuccessful. The Supreme Administrative
Court refused leave to appeal on 12 January 1984.
On 5 July 1984 the applicants introduced an application
(No. 11180/84) before the Commission alleging inter alia that the
refusal to return their son to them was a breach of Article 8 of the
Convention. After having obtained the Government's and the
applicants' written observations on the admissibility and merits of
the application, the Commission declared the application inadmissible
on 5 March 1986. The Commission stated in its decision that the
refusal to terminate the care order, although constituting an
interference with the applicants' rights under Article 8 para. 1 of
the Convention, was justified under the terms of paragraph 2 of
Article 8 as being necessary in a democratic society for the
protection of the health and rights of others.
On 11 September 1984 the applicants requested the Social
District Council No. 6 in Stockholm to make arrangements in order to
establish contacts on a regular basis between the applicants and their
son Björn. They suggested that meetings should be arranged at least
twice a month with a view to reuniting Björn with his parents.
On the same day the County Administrative Board
(länsstyrelsen) of the County of Stockholm asked for the Social
Council's opinion on account of the applicants' request for an
extended right to contact with their son. On 29 November 1984 the
Social Council in its opinion to the County Administrative Board
stated that the applicants should be given the opportunity to meet
their son every five weeks. The Social Council did not make a
decision under Section 16 of the 1980 Act with Special Provisions on
the Care of Young Persons, which regulates the right of parents to
have contact with a child taken into public care.
The applicants complained to the County Administrative Board
which on 7 March 1985 instructed the Social Council to investigate and
decide the matter urgently. The County Administrative Board
emphasised that it was important that the Social Council, in case its
opinion differed from that of the parents as to the frequency of their
contact with the child, make a decision under Section 16 of the 1980
Act. As the parents can appeal against such a decision it gives them
the opportunity of having the question decided by a court.
From the investigation made by the social authorities, which
was completed on 24 September 1985, it appears that in November 1983
the parents complained that they were not allowed to see Björn often
enough. It also appears that attempts at that time were made to reach
the applicants by telephone but with no result since their telephone
had been disconnected. In December 1983 the applicants did not turn
up at a meeting with Björn since Mrs. Nyberg who was pregnant had gone
to Germany to give birth to the child. In July 1984 Björn's foster
parents received a post card from the applicants saying that they had
returned to Sweden and wanted to meet Björn as soon as possible.
During their stay in Germany they had written a few letters to Björn
and had talked to him over the telephone on a few occasions. The
applicants met with Björn in September 1984. It was then decided that
they should see him every five weeks.
On 3 October 1985 the Social Council decided that Björn could
meet his parents one day every three weeks at a place chosen by Björn's
parents but not at the foster home, and that a special contact person
(kontaktman) should be present at the meetings.
On 19 December 1985 the Social Council reviewed that decision.
A new investigation had been carried out in which it was concluded
that Björn's frequent visits to his parents in Stockholm affected him
negatively. Since the Social Council's decision Björn had visited the
applicants on three occasions together with a contact person. The
Council now decided that the meetings should take place every three
weeks, alternately at the parents' home and the foster parents' home.
In January 1986 the applicants brought an appeal against that
decision but withdrew it in view of the Council's decision to terminate
the public care of Björn.
In the meantime, on 19 October 1984, the applicants submitted
a further request to the Social Council that the care of the son be
terminated. On 23 January 1985 the Council requested a child
psychiatric opinion which was received on 23 June 1985. The Council
also found it necessary to supplement the investigation with a
psychiatric opinion on the applicants and requested such an opinion in
April 1985. The opinion dated 7 June 1985 was received by the Council
in June 1985. It was issued by an assistant chief doctor at the
Enskede Skarpnäck Psychiatric Institute.
The child psychiatric opinion, which was issued among others by
a specialist in child psychiatry at the Children's and Juveniles'
Psychiatric Clinic of Jönköping, was criticised by the applicants
and withdrawn by the doctors who issued it. A new opinion based on a
new investigation was issued by a chief doctor and a qualified
psychologist at the Clinic on 9 September 1985. The applicants did
not participate in the latter investigation which thus concentrated on
Björn's development. Since the two opinions contained completely
different conclusions, the Social Council decided to ask the National
Board of Health and Welfare (socialstyrelsen) for a new assessment of
the child. On 15 November 1985, the National Board replied that it
could not make such assessments. The Social Council then decided to
ask the National Board for an assessment of the child psychiatric
opinion of 9 September 1985 in order to obtain an opinion as to whether
further psychiatric examinations were necessary. On 27 January 1986
the National Board replied that the investigation which was at the
basis of the opinion was sufficient for an assessment as to what was
in the best interest of the child.
The social investigation made subsequent to the request
that the public care of Björn should be terminated was completed on
23 January 1986. The conclusion of the investigation was that there
were no longer sufficient reasons to uphold the public care order
concerning Björn. It was found, however, that there was a
considerable risk that Björn's health and development could be
seriously damaged if Björn was separated from his foster parents.
On 6 February 1986 the Social Council decided to terminate the
care of Björn and to issue a prohibition for the applicants to
separate Björn from the foster home where he was living. The latter
decision was taken pursuant to Section 28 of the Social Services Act
(socialtjänstlagen).
This section provides, in its first paragraph:
(Swedish)
"Socialnämnden får för viss tid eller tills vidare förbjuda
den som har vårdnaden om en underårig att ta denne från ett
hem som avses i 25 §, om det finns risk som inte är ringa för
att barnets kroppsliga eller själsliga hälsa skadas om det
skiljs från hemmet."
(English translation)
"The Social District Council may for a certain period of time,
or until further notice, prohibit the custodian of a minor
from taking the minor away from 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 said prohibition was valid until further notice. The
Council expressed the opinion that it was important to create good
opportunities for Björn to build up and develop a relationship of
confidence with the applicants.
The applicants appealed to the County Administrative Court
against the decision regarding the prohibition on removal
(flyttningsförbud). Following a hearing before the Court on 28 May
1986, the Court, in a judgment of 6 June 1986, confirmed the
prohibition on removal, but ordered that it should only apply until
15 December 1986. In the judgment the following reasons are stated:
"On the basis of the investigation in the case, the Court
finds, inter alia, the following facts established. Björn was
placed on 8 October 1982 in the foster home of the spouses
Maud and Göran Henriksson in Skirebo outside Jönköping. In
the home there is, apart from the spouses, a foster brother
who is four years older than Björn. There is no indication in
the case that Björn has received other than the best possible
care in the foster home. As regards the spouses Nyberg a
durable stabilisation appears to have occurred as regards
their mental health. Birgitt Nyberg works as a home assistant
and Lars Erik Nyberg receives sickness benefits. He has
regular contact with a psychiatric care centre for medication.
Björn's younger brother Ralf, born on 14 January 1984, lives
with the spouses Nyberg. Lars Erik Nyberg takes care of Ralf
during the day while Birgitt Nyberg works. The spouses'
ability to function as parents has been shown by Ralf's
favourable development. It is undisputed in the case that
the spouses would be able to take care of and foster Björn.
Birgitt Nyberg had the responsibility for the care of Björn
during his first eight months. Thereafter the separation
from the mother took place as a result of her sudden
sickness. After the separation the spouses, in particular
Birgitt Nyberg, endeavoured to maintain contact with Björn.
A couple of lengthy interruptions have occurred in the
contact when the spouses Nyberg stayed in the Federal
Republic of Germany. In 1986 some contact occurred between
Björn and his parents. Björn has slept overnight once in his
parents' home. No contact could take place in May.
The Social Council has invoked a statement from the
Children's and Juveniles' Clinic of the Central Hospital of
Jönköping dated 9 September 1985 concerning Björn. In the
statement the investigators, the chief doctor, Ingrid
Laurell, and the qualified psychologist, John-Erik Ottosson,
consider that Björn is in all respects a normally developed
boy. He has no child neurotic disturbances. Emotionally he
is secure and settled in his foster family where he has
spent almost three-quarters of his life. As a result of
Björn's young age it is, of course, evident that his
security and identity are attached to the foster parents.
According to the investigators' opinion, there ought to be
very strong reasons for moving him from the foster home,
having regard to the long time he has lived there and the
connection he has.
In the investigators' opinion there is a risk which is not
of a minor nature that Björn's mental development will be
jeopardised by his removal from the foster home, if it is
not ascertained in advance that Björn's relationship with
the natural parents is of such a nature that Björn can
identify them as alternative psychological parents along
with the foster parents.
In a statement of 27 January 1986 the National Board of
Health and Welfare expressed its opinion on the position
taken by the Children's and Juveniles' Psychiatric Clinic
of Jönköping that Björn should not be removed from his
foster parents. In the opinion of the National Board
this position is well-founded on the basis of knowledge of
children's development and needs as applied to Björn's
special situation. The National Board has considered that
Björn, if he is moved from the foster home, will be
subjected to a risk of damage to his mental health and
development which is not to be considered as being only of a
minor nature. It is desirable that he should be allowed to
stay in the foster home. The National Board of Health and
Welfare considers that Section 28 of the Social Services Act
is applicable.
The spouses Nyberg have invoked a certificate by the
certified psychologist Lars Billing.
In a statement the County Administrative Board of the
County of Stockholm took the view in brief that it is
at present not possible to move Björn to his natural
parents and that, therefore, a prohibition pursuant to
Section 28 of the Social Services Act ought to be
maintained but that preparatory measures ought to be
taken in order to reunite Björn with his parents.
At the request of the spouses Nyberg, evidence has been
given by a psychiatrist in private practice, Olle
Björkström, the certified medical doctor Gunnel Hörnqvist,
and the certified nurse Nancy de Sousa.
Björkström has in essence said the following: As the
situation now is with the defective contacts Björn has had
with Birgitt Nyberg, it is a fact that the foster parents
are Björn's primary and psychological parents. Björn's
solidarity is with them. It would be very strenuous for
Björn if he were to move home to his biological parents.
His primary parent-child relationship would then be broken,
which would imply a great trauma for him.
Hörnqvist has considered that the spouses Nyberg would
manage to take care of Björn and to tackle the problems
which would arise if he moved home. Hörnqvist considers
that Björn has a living contact and a deep relationship
with, in particular, Birgitt Nyberg. It would therefore not
be a serious risk if Björn came home.
Nancy de Sousa met Björn in September 1984 and March 1986
during his visits to the spouses Nyberg. She indicated what
she saw during these visits and stated that they were
favourable and without any problems.
The Deputy Chief Doctor Frank Ståhl at the Sankt Göran's
hospital, who is a specialist in children's and juvenile
psychiatry, has been heard as an expert. Ståhl stated mainly
the following: As a result of the separations during Björn's
first years, he is more sensitive than others to a break-up
from the environment in which he now finds himself, and it
involves as such a considerable risk of damage to his
psychological health, which is not of a minor nature. The
foster parents are the most important persons for Björn in his
life. Birgitt Nyberg does not sufficiently understand
Björn's need of his foster parents. Björn is now settled in
the foster home and to move him would involve strain. Björn
must now get a clear message as to where he belongs. It is
important that he may have a relationship with his natural
parents. What is at present particularly damaging for Björn
is the conflict between the foster parents and the natural
parents.
Under Section 28 of the Social Service Act the Social
Council may, when the child's best interests so require, for
a certain period, or until further notice, prohibit the
person who has the care of the minor from taking the child
away from a foster home if there is a risk which is not
considered to be of a minor nature that the child's physical
or mental health would be jeopardised if he is separated
from the home. Only a temporary disturbance or any other
temporary inconvenience is not a sufficient reason for
issuing a prohibition. When placing a child in a foster
home the normal objective should be the reunification of the
natural parents and the child. A prohibition under Section
28 of the Social Services Act ought to be seen as a
temporary measure, valid until such time as a child, without
risk for any damage which is indicated in the said
prohibition, can be separated from the foster home. The
facts which should be considered in cases concerning
prohibitions on removal are inter alia the child's age, his
or her degree of development, abilities and emotional
relationships, the time the child has been cared for in
other places than with the parents, the present living
conditions of the child, and those which he or she would
have after a removal, as well as the contact between the
parents and the child during the time they have been
separated.
The County Administrative Court makes the following assessment.
Björn will be 5 years old in September. During his first
eight months he stayed with Birgitt Nyberg. As from the age
of one year he has lived in the foster home. The spouses
Nyberg's suitability to take care of Björn is not
questioned. Since the circumstances which led to Björn
being placed in the foster home have ceased to exist, the
aim must be that Björn should be reunited with his parents.
The experts who have submitted their opinions in the case
have by and large jointly expressed themselves against
Björn's removal to the natural parents. They have based
themselves on the emotional bond which has arisen between
Björn and the foster parents and the long time he has lived
in the foster home. The facts of the case show that the
spouses Nyberg have maintained contact with Björn but that
the contact has been made more difficult during recent
times. There is now a situation filled with conflicts
between the spouses Nyberg and the foster parents which is
to Björn's detriment. The Court finds it established in
the case that there is a risk, which is not of a minor
nature, that Björn's mental health would be jeopardised
if he were now separated from the foster home. The
prohibition on removal should therefore at present be
maintained.
Irrespective of whether a prohibition on removal is limited
in time or not, it is the obligation of the Social Council
to see to it that appropriate preparations are made promptly
with a view to the reunification in order that the child
should not become more attached to the family which it
should leave. From the facts of the case it appears that
Björn is a normally developed boy without any disturbances.
If he does not in the near future live with his natural
parents and his brother, the prohibition on removal can, in
the long run, turn out to be in conflict with Björn's best
interests. The County Administrative Court considers that
if Björn as soon as possible receives a clear message that
after a certain time he should move home to his parents and
his brother and that preparations are made with frequent
contacts with his parents, Björn would not run any risk of
more than temporary disturbances when moving. The conflicts
between the foster parents and the spouses Nyberg must not
be an absolute impediment to active measures of preparations
for Björn's removal. Making an overall assessment, the
County Administrative Court finds that there are reasons
to limit the prohibition on removal in time for no longer
than half a year. The Court takes it for granted that the
Social Council will actively further the reunification of
Björn and the natural parents and that the Council will
intensify its work in this respect. Great responsibility is
incumbent upon the foster parents. They must participate
positively and actively and help and support Björn. The
spouses Nyberg and the foster parents must try to reach
agreement and see to the best interests of Björn."
Both the applicants and the Social Council appealed to the
Administrative Court of Appeal of Stockholm. The Court held a hearing
in the case on 17 September 1986 and delivered judgment on
7 October 1986. The Court ordered that the prohibition on removal
should apply no longer than to 1 March 1987. In the reasons for its
judgment the Court stated inter alia the following:
"The Administrative Court of Appeal finds, as did the
County Administrative Court, that there is a risk which is
not of a minor nature that Björn's health and development
would be jeopardised if he immediately were to move from the
foster home. The County Administrative Court has
therefore had reasons to issue a prohibition on removal.
From the investigation in the case it appears that the
contacts between the parents and the child have been good
most of the time when Björn lived in the foster home. It
furthermore appears from the investigation, inter alia from
the testimony of Dr. Hörnqvist, that it has been possible to
maintain a rather deep emotional contact between Björn and,
in the first place, his mother, during the time he has
stayed in the foster home. In view of this, and having
regard to the other facts of the case, there is reason to
believe that it is possible to arrange for a relatively
quick reunification without there being any risk for Björn's
health.
When deciding on the date until which the prohibition on
removal should be valid, it must be kept in mind that Björn,
on some occasions, has shown that he does not wish to visit
the parents and that two visits in May 1986 could not take
place as a result of his refusal to follow them to
Stockholm. It should further be observed that Björn has not
met his parents since the end of May 1986. On the other
hand, great importance must be attached to the fact that
Björn, according to the medical certificates which have been
invoked in the case, is in all respects a normally developed
child both physically and mentally.
The measures taken by the Social Council so far, in order to
create the basis for a reunification between Björn and his
natural parents, have been insufficient. Thus it must be
considered that the occasions on which there have been
contacts between them have been too few and too short and
that, also in other respects, they have been designed in a
way which has not been favourable to strengthening the links
between Björn and his parents. Nor has sufficient regard
been had to the conflicts which have arisen between, in
particular, Birgitt Nyberg and the foster parents. The
Administrative Court of Appeal takes it for granted that the
Social Council, in pursuing the objective of reuniting Björn
with his natural parents will, through different measures,
intensify its work in this respect. Furthermore, the Court
also takes it for granted that the spouses Nyberg will
completely and fully co-operate in order to make the removal
as smooth as possible for Björn and that the foster parents
will also co-operate for this purpose.
In view of what has been said above, the Court finds that
some further time is necessary for the preparatory measures
before the prohibition on removal can be terminated."
The applicants and the Social Council appealed to the Supreme
Administrative Court, which in a decision of 7 November 1986 refused
to grant leave to appeal.
Following complaints from the applicants the Parliamentary
Ombudsman (justitieombudsmannen) stated in a decision of 19 June 1986
that the Social Council's examination of the applicants' request for
an extended right of contact with Björn had been unduly long (more
than one year), thereby depriving the applicants of the right to have
this request examined by a court, and that the fact that the
applicants' request for a termination of the care order had only been
dealt with after almost one and a half years was unacceptable.
On 18 December 1986 the Social Council decided to institute
civil proceedings before the Stockholm District Court (tingsrätt)
requesting that the legal custody of Björn be transferred from the
applicants to the foster parents in accordance with Chapter 6 Section
8 of the Parental Code (föräldrabalken). The Social Council invoked
an investigation, made by a welfare officer, of 5 December 1986 and the
written consent of the foster parents. In the Social Council's
application for a summons, dated 25 November 1986, it is stated that
there was a risk that Björn's mental health would be harmed if he was
separated from his foster parents and that it would obviously be in
his best interests to stay with them.
In the investigation it is inter alia stated that Björn,
during the period January 1986 to May 1986, by strong emotional
reactions in connection with the meetings with his parents, showed
that he did not want to see them. The following conclusion was
reached:
"Even though Birgitt Nyberg has been Björn's primary
parental figure for the first eight months of his life,
through his long separation from her, Björn has lost an
essential part of his emotional attachment to her. For
natural reasons Björn is identifying himself with his foster
parents and feels that he belongs in his foster family. A
separation from the foster parents would inevitably involve
a crisis for Björn."
On 26 January 1987 the applicants applied to the County
Administrative Court for the enforcement of the return to them of
their son Björn in accordance with the provisions of Chapter 21 of the
Parental Code.
On 30 January 1987 the County Administrative Court of
Jönköping ordered that the Head of Section at the social authorities
of Jönköping, Mrs. Ingrid Westerlund-Henja, should try to achieve a
voluntary transfer of the child from his foster parents to the
applicants.
On 9 February 1987 the Social Council requested the District
Court to transfer, by a provisional decision, the legal custody of
Björn to the foster parents. The reasons given for the request was
the applicants' application of 26 January 1987 for the enforcement of
the return to them of Björn and the fact that according to the Social
Council they had not, in the way the Administrative Court of Appeal of
Stockholm had provided in its judgment of 7 October 1986, completely
co-operated in order to make the removal as smooth as possible for
Björn.
On 23 February 1987 the Social Council requested an opinion
from the Children's and Juveniles' Psychiatric Clinic of Jönköping
as to whether Björn would be able to endure the meetings with his
parents without becoming mentally injured. In the opinion, which was
issued on 25 February 1987 by the doctors who had issued the opinion
of 9 September 1985, the following was stated:
"Since measures to create contact have not been brought
about until 3 February 1987, in spite of the judgment of
the Administrative Court of Appeal of 7 October 1986, it has
been necessary under considerable lack of time and in a
doubtful manner to try to create contact between Björn and
his natural parents in such a way that, in our opinion,
it has not facilitated Björn's attachment to his natural
parents. To continue trying to create contact in the
same manner is considered by the under-signed to be
directly harmful to Björn's mental health and development.
...
It is our unambiguous opinion that until a functioning
contact and a positive attachment can be brought about
between Björn and his natural parents and all those
involved have done what is possible to help Björn with the
separation from the foster parents, who naturally are his
psychological parents, a transfer of Björn to his natural
parents will bring about an apparent risk that Björn's
mental health and development will be seriously harmed."
In view of this certificate the Chairman of the Social Council
decided on 26 February 1987 to issue a new prohibition on removal, this
time valid until further notice.
On 5 March 1987 the Social Council provisionally upheld the
Chairman's decision.
On 10 March 1987 the County Administrative Court held a
hearing in the case concerning enforcement under Chapter 21 of the
Parental Code and on 16 March 1987 it delivered judgment. The
applicants' request for enforcement was granted. The Court ordered
that the child be temporarily placed for a maximum of five days at the
Children's and Juveniles' Psychiatric Clinic of Jönköping and that
thereafter the child should be transferred to the applicants. The
foster parents were ordered to leave the child with the Clinic not
later than 24 March at 10.00 hours. In the judgment the following
reasons are indicated:
"In the situation which is at hand in the present case, the
Court may under Chapter 21 Section 7 second paragraph of the
Parental Code refuse enforcement if, in view of the child's
best interest, it is necessary that the question of the
legal custody of the child be examined by an ordinary court.
It appears from the investigation that (the applicants),
with some exceptions, have had continuous and good contact
with Björn and that they have all the time had the intention
of taking care of him themselves. In view of this and of the
other facts, there is no obstacle to the enforcement on the
ground that it would be necessary to re-examine the question
of the legal custody of Björn. The fact that proceedings
concerning this question are now pending does not affect this
conclusion.
It can be established that the preparatory measures which
according to the judgment of the Administrative Court of
Appeal were necessary in order to terminate the prohibition
on removal have not been implemented to the extent or in the
manner envisaged. The Social Council's measure to request
before the District Court a transfer of the custody of Björn
within a rather short time after the judgment of the
Administrative Court of Appeal appears remarkable and has not
been designed to facilitate the preparatory measures. The
manner in which contacts took place between Björn and his
natural parents during the month of February did not
facilitate his relations to them either.
At least during the last year there has been a conflict
between the natural parents and the foster parents. The
conflict has become worse recently. In the opinion of the
Court the result is that it will presumably be very
difficult to achieve Björn's gradual adaptation to his
natural parents as intended in the judgments concerning the
prohibition on removal.
The issue in the case is therefore whether nevertheless the
conditions for enforcement are fulfilled. According to
Chapter 21 Section 6 second paragraph of the Parental Code,
the County Administrative Court may refuse enforcement if
there is a risk, which is not of a minor character, that the
child's bodily or mental health may be harmed. In that
context not only should the risks of the actual transfer and
the resulting problems of adaptation be taken into account,
but also what in the long run must be considered to be in
the best interest of the child. In view of the statements
of Mrs. Ingrid Laurell and Mr. John Erik Ottosson and the
other facts, it appears clear that there is a risk that
Björn's mental health might be harmed by a transfer. In the
case before the County Administrative Court of Stockholm
concerning prohibition on removal the expert on children's
and juveniles' psychiatry, Mr. Frank Ståhl, stated inter
alia that Björn must receive a clear message as to where he
belongs and that what is most harmful to him is the conflict
between the foster parents and the natural parents. The
Court concurs with this opinion. There is thus also a risk
that Björn's mental health may be harmed if the conflict and
the uncertainty as to where he belongs continue.
Björn, who is not yet six years old, is a normally developed
boy. It is established that there were previously good
contacts between him and his natural parents. The certified
doctor Mrs. Gunnel Hörnqvist stated in the case concerning
the prohibition on removal that Björn had close contact and
deep relations, in particular with Mrs. Nyberg. Even if the
contact between them has not been so good in the special
circumstances which have prevailed recently, there is good
reason to believe that the previous good relations will be
restored. The numerous proceedings which have been instituted
and which are still going on concerning Björn have resulted in
great strain for all the parties involved, and have evidently
worsened the conflict between the natural parents and the
foster parents. This, of course, affects Björn. It must,
from his point of view, be important to terminate the 'fight'
over him. As long as he stays in the foster home it is likely
that the 'fight' will continue.
The natural parents have, of course, a justified claim to
have their child back. As has been said above, it appears
impossible to achieve Björn's gradual adaptation to them.
Making an overall assessment of the risk to him which a
transfer would involve compared to the risks which continued
uncertainty and continued conflicts would involve, the Court
finds that the most weighty arguments are in favour of
enforcement now."
On 19 March 1987 the Social District Council decided, thereby
confirming their provisional decision of 5 March 1987, to prohibit the
applicants from moving Björn from the foster home since there was a
risk which was not of a minor character that Björn's mental health and
development would be harmed if he was separated from the foster home.
The decision was based on an investigation made by Social District
Council No. 6 in Stockholm and completed on 9 March 1987. The
investigation contains a report on the different occasions in February
1987 when Björn met his parents. In the investigation it is stated
inter alia that when the meetings started Björn had not seen his
parents since June 1987, that the conditions at the meetings had been
strained particularly for Björn, that Birgitt Nyberg had stated that
she found it hard to establish a good contact with Björn when the
welfare officers were present and that the scheduled meetings were
interrupted on 25 February 1987 after a recommendation from the
Children's and Juveniles' Psychiatric Clinic in Jönköping.
Both the applicants and the foster parents appealed to the
Administrative Court of Appeal against the judgment of the County
Administrative Court of 16 March 1987. Before the Administrative
Court of Appeal preparatory sessions were held in order to try to
solve the dispute on a voluntary basis. In the course of these
sessions the parties agreed to co-operate for the purpose of
transferring Björn to the applicants. The foster parents promised to
endeavour to have the case on legal custody before the District Court
withdrawn. Mrs. Nyberg promised to endeavour to have a police report
in Germany against the foster father withdrawn. Following these
sessions the Administrative Court of Appeal of Jönköping decided on
1 April 1987 to adjourn its examination of the case.
On 2 April 1987 the Social Council decided to maintain its
action before the District Court of Stockholm concerning the transfer
of the legal custody of Björn from the applicants to the foster
parents and to maintain the prohibition on removal under Section 28 of
the Social Services Act. The decision was not unanimous and the
chairman expressed a separate opinion.
On 3 April 1987 the foster parents wrote a letter to the
District Court repeating the agreement reached with the natural
parents before the Administrative Court of Appeal and expressed their
surprise over the Social Council's decision.
On 15 April 1987 the Social Council decided to withdraw its
action before the District Court concerning the transfer of the legal
custody and to revoke the prohibition on removal. The application
before the District Court was withdrawn by the Social Council on
21 April 1987 and removed from the Court's case list on 13 July 1987.
The applicants claimed that the District Court should oblige
the Council to pay their legal costs. The reason given for this was
that the Council intentionally or by neglect had caused unnecessary
proceedings. The Court rejected the applicants' claim. The applicants
appealed to the Court of Appeal, which found that there were special
reasons to oblige the Council to pay their legal costs since the
Council withdrew its action after a considerable delay.
The social authority covered the foster parents' costs for
legal aid in the custody proceedings out of its expense account. This
was decided on 26 March and 26 May 1987 by two social welfare
officers.
On 21 April 1987 the foster parents and Björn arrived at the
applicants' home at Neukirchen. On 23 April the foster parents left
Björn with the applicants and the family is since then re-united.
On 14 May 1987 the Administrative Court of Appeal removed the
case concerning the enforcement of the return of Björn to his parents
from its list of cases.
-------------------------------------
Previously, on 29 May 1986, the applicants had been allowed to
meet their son Björn for the day in order to have some contact with
him. In view of the fact that the child's grandmother had not had the
opportunity of meeting the child for a long time, the parents decided,
thereby violating the conditions for the right of contact with the
child, to travel to the Federal Republic of Germany on a visit and
took the child with them.
When the foster mother came to pick up Björn at his parents'
home in the evening nobody was there. She informed the social
authorities.
On 29 May 1986 the Deputy Chairman of the Social Council
decided to take Björn into public care and to ask for assistance from
the police authority in order to have the decision enforced. The
applicants were reported to the police for having taken Björn away
without permission, but no action was taken against them.
The social authorities contacted the Ministry for Foreign
Affairs in order to find out if there was any possibility to have
Björn returned to Sweden and were informed that there were no treaties
or conventions between Sweden and Germany regarding a situation like
the one in question.
On 30 May 1986 the foster parents talked to Björn's father
over the telephone. They were informed that Björn's parents intended
to spend some time in Germany.
On 31 May 1986 the foster father went to Germany with a
friend. Before he left he had contact with one of the social welfare
officers dealing with the case of Björn. She ordered air tickets, in
the social authority's name, for the foster father and his brother.
She also ordered return tickets, including one for Björn. She booked
tickets on a flight to Amsterdam. The bill was sent to the social
authority but forwarded to the foster parents. The reason why the
social welfare officer helped to book the tickets was that it was
Saturday and the foster father could not raise the money needed for
the trip. She also understood that the foster parents were concerned
about Björn. It is disputed between the parties whether the
authorities were aware of the foster father's intention to take Björn
away from the applicants.
The foster father arrived at Neukirchen-Vluyn, where Björn
was staying with the applicants, on 31 May 1986. On the following day,
late in the afternoon, the applicants took a walk with their two sons.
A car approached them from behind. Out of the car came the foster
father, apprehended Björn and took him into the car, which then
disappeared quickly. Thereafter the foster father went to Sweden with
Björn via Amsterdam.
This incident was reported to the police. On 1 August 1986
the Regional Prosecutor (regionåklagaren) of Jönköping decided not to
institute criminal proceedings since it was considered that the foster
father's action was founded on his care for Björn and that criminal
proceedings were not required in the general interest. In view of
this decision no investigation was initiated by the prosecutor
regarding the officials at the Social District Council. Upon appeal the
Prosecutor-General (riksåklagaren) saw no reason to amend the decision
of the Regional Prosecutor and on 27 October 1986 he decided not to
take any action.
When Björn had returned to Sweden the foster parents paid the
money back that the social authorities had advanced for the air
ticket.
A social welfare officer on 10 June 1986 decided to grant the
foster parents an allowance of 5,825 SEK. The only note made about the
allowance was that it was a special measure of support. When asked
about the allowance by the Parliamentary Ombudsman, in the course of
her investigation, the social welfare officer said that it was a
special measure of support in view of the difficulties the foster
parents experienced when Björn had returned to them. In an application
for compensation to the foster parents for their travel expenses,
submitted by the social authority to the Berg-Rolanska Foundation, it
appears that the entire cost for the travel, including air tickets,
hotel and a rented car, was 12,825 SEK and that the social authority
had granted an allowance of 5,825 SEK. The foster parents had their
expenses fully covered by financial contributions from the Swedish
Save the Children Federation and from the Berg-Rolanska Foundation.
-------------------------------------
On 24 May 1988 the Parliamentary Ombudsman took a decision
concerning the social welfare officers' and the Social District
Council's handling of Björn's case from 29 May 1986 and onwards.
The Ombudsman considered that the assistance by the social
welfare officer was crucial when Björn's return to Sweden was brought
about and that it cannot be accepted that the social authorities
facilitate illegal actions. However, she did not find it substantiated
that the social welfare officer's intention when assisting the foster
father was that he should take Björn back to Sweden but she seriously
criticised the action of the social authorities.
The Ombudsman further considered that, whether the
contribution of 5,825 SEK to the foster parents was supposed to cover
their travel expenses or not, the social authority had through its
actions, after the foster father had brought Björn back, shown that it
supported his action. She found this inappropriate.
From the Ombudsman's investigation it appears that the reasons
the social authorities have given for the decision of the chairman of
29 May 1986 to take Björn into care on a provisional basis were, inter
alia, that the social authorities wanted to make it possible to ask
for assistance from the police to bring Björn back to Sweden, that
Björn's parents, by abruptly separating him from the foster parents,
had shown that they lacked understanding for his needs, that they had
prevented the preparation for their reunification with Björn as it had
been envisaged by the County Administrative Court in its judgment on
prohibition on removal and, finally, that Björn's strong reactions
when he met his parents in spring 1986 might be detrimental to his
health and development.
In this respect the Ombudsman pointed out that only the last
reason was valid and that it was not likely that the provisional care
decision would have been upheld by the County Administrative Court.
She did not pursue the issue as the decision was never enforced. She
added that the decision ought to have been brought before the Council
for re-examination when it had a meeting a few days later and Björn
was back in Sweden. This was never done.
As for the remaining part of the examination the Ombudsman has
stressed that the Social District Council, in view of the judgments of
the Courts on 6 June and 7 October 1986, was under a special
obligation - besides what normally rests with a social authority in
this regard - to be active in seeing to it that contacts were created
between the child and his natural parents. She found no indication
that serious efforts were made in order to improve the relations to
the natural parents. On the contrary, she said, the application of
December 1986, for having the custody of Björn transferred to the
foster parents, proved that the Social District Council had taken the
view that Björn was not to be reunited with his parents. For this she
expressed strong criticism.
She further could not accept the subsequent measures such as
the decision on a new prohibition on removal concerning Björn taken a
few days before he should be returned to his parents according to the
judgment of the Administrative Court of Appeal of 7 October 1986, the
fact that the social authority covered the foster parents' costs for
legal aid in the custody proceedings and the decision of the Social
Council of 2 April 1987 to maintain the action on transfer of custody
and the prohibition on removal. The latter decision was contrary to
the judgment of the County Administrative Court of 16 March 1987,
according to which Björn should be returned to his parents.
Generally the Ombudsman observed that the handling of the case
showed that the social welfare officers had engaged themselves
strongly in it for the benefit of the foster parents. She found it
doubtful whether the Social District Council and the social welfare
officers realised that respect for court decisions is a fundamental
and indispensable requirement of legal security.
Further particulars concerning the contacts between the applicants
and Björn
During Björn's first year in the foster home Mrs. Nyberg
visited him once a month. Every second time she visited him she was
accompanied by Lars Erik Nyberg and the visit lasted for a day, and
every second time she came alone and the visit lasted two days. After
some time the spouses Nyberg visited Björn together every sixth week.
During the period 4 November 1983 to 23 September 1984 the
applicants did not meet Björn as they had gone to Germany in order for
Mrs. Nyberg to give birth to their second child. They met Björn again
on 23 September 1984.
In the period between their request of 19 October 1984 that
the care of Björn be terminated, and the decision of the Social
Council of 6 February 1986 to terminate the care, the applicants met
Björn on the following occasions, alternately in their home and at
the foster parents' home:
4 November 1984 14 August 1985
22-23 December 1984 19 October 1985
2 February 1985 7 November 1985
13 March 1985 1 December 1985
22 April 1985 21 December 1985
2 June 1985 12 January 1986
12-13 July 1985
After the care had been terminated and during the spring of
1986, until the time when Björn was brought to Germany by the
applicants, they met him on the following occasions:
8-9 February 1986 16 May 1986
22-23 March 1986 29 May - 1 June 1986
The applicants returned to Sweden from Germany in January 1987.
A plan was made by the social authorities, in co-operation with the
applicants and the foster parents, according to which the applicants
were to meet Björn 17 times in February. The first meeting took place
on 3 February 1987 and the last one on 24 February 1987. The meetings
were interrupted by the social authorities on 25 February 1987 due to
a medical opinion of the same date. There were in total 13 meetings
between Björn and his parents in February 1987. Björn further met his
parents on a number of occasions in March and April 1987.
COMPLAINTS
1. The applicants allege that the refusal until April 1987 to
allow them to take Björn home was a breach of Article 8 of the
Convention. The only reason appeared to be that the social authorities
considered the foster home to be a better home than the applicants'
home, a reason which is unacceptable.
The applicants maintain that a prohibition on removal is
formally a decision which aims at a smooth transfer of the child from
the foster parents to the natural parents. In practice, however, such
a decision is taken for the opposite purpose, namely to obstruct the
return of the child to his or her home. In the present case, the social
authorities did nothing to reunite the applicants with their son. The
applicants' right of contact with their son has been obstructed. They
were given insufficient access to their son, and reunification was
thereby not in any way promoted.
2. The applicants further allege that the delay in the
reunification of their family, partly through administrative slowness,
partly through successive delays by different authorities, constitutes
a breach of Article 6 of the Convention in that a "civil right" has
not been determined "within a reasonable time".
3. The applicants allege that the kidnapping of the child in the
mother's and child's home country, in conflict with international law,
and without any subsequent criminal proceedings being instituted, is a
breach of Article 3 of the Convention. They allege that the social
authorities accepted this kidnapping.
4. The applicants allege that the same facts show disrespect
for family life in breach of Article 8 of the Convention, since no
measures were taken by the authorities.
5. The applicants also allege a breach of Article 13 of the
Convention, contending that there exists no effective remedy for the
alleged violations of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced with the Commission on
9 June 1986 and registered on 2 December 1986.
Refusing a request from the applicants, the Commission decided
on 13 March 1987 not to take any action under Rule 36 of the Rules of
Procedure.
On 7 May 1987 the Commission decided to invite the respondent
Government to submit written observations on the admissibility and
merits of the application.
The Government's observations were dated 4 September 1987 and
the applicants' observations in reply were dated 17 November 1987.
On 16 October 1987 the Commission granted legal aid to the
applicants.
On 6 July 1988 the Commission decided to invite the parties to a
hearing on the admissibility and merits of the application.
At the hearing, which was held on 4 October 1988, the parties
were represented as follows:
The Government
Mr. Hans Corell Ambassador, Under-Secretary for
Legal and Consular Affairs,
Ministry for Foreign Affairs,
Agent
Mrs. Christina Bergenstrand Legal Adviser, Ministry of
Health and Social Affairs
Mr. Carl-Henrik Ehrenkrona Legal Adviser, Ministry for
Foreign Affairs
The Applicants
Mr. Lennart Hane Lawyer
Mrs. Gunilla Hane Assistant
The applicants, Mr. and Mrs. Nyberg, were also present.
SUBMISSIONS OF THE PARTIES
A. The Government
1. The Admissibility
Regarding the complaints, under Articles 3 and 8 of the
Convention, concerning Björn's return to Sweden with his foster father
in May 1986, the Government are of the opinion that the suffering to
which the applicants might have been subjected was caused by an
individual towards another individual. This does not raise an issue
under international law but should be taken care of within the legal
system within the States concerned. For that reason the Government
maintain that this part of the application should be declared
inadmissible for being incompatible ratione personae with the
provisions of the Convention.
The Government question whether Article 3 could apply at all
even if the way Björn was brought back to Sweden had been authorised
by a Swedish authority. The contents of Article 3 must be seen in the
light of the atrocities that took place in Europe the years before the
Convention was drafted. It must have been the severer forms of
ill-treatment that the Contracting Parties had in mind (cf. Eur. Court
H.R., Case of Ireland v. United Kingdom, judgment of 18 January 1978,
separate opinion, Series A no. 25, p. 117, para. 17). The suffering to
which a person can be subject due to actions taken by the authority,
when these actions are based on a serious concern for a child's
welfare, is far from reaching that level and of a totally different
nature.
The Government maintain that the complaints under Article 3
should for this reason be declared inadmissible for being
incompatible ratione materiae with the provisions of the Convention.
The Government furthermore maintain that the complaint under Article 8
should be declared inadmissible for being incompatible ratione
materiae with the provisions of the Convention.
It is added that, if the applicants had refused to send
Björn back to the foster parents while in Sweden, the authorities
could have asked for assistance from the police in order to enforce
Björn's return to the foster home from which he, according to a
decision by the Social Council then in force, was not to be moved. The
fact that the foster father's action in this case was contrary to the
law does not make any difference as far as the application of Article 3
is concerned.
Should the Commission be of another opinion, the Government
maintain that the complaints in this regard are manifestly ill-founded.
As to the complaints under Article 6 of the Convention the
Government admit that Article 6 is applicable. With reference to what
is said below on the merits the Government are of the opinion that the
complaints should be declared inadmissible since they are manifestly
ill-founded.
Regarding the remaining complaints as to Article 8 and the
complaints as to Article 13 of the Convention the Government, with
reference to their observations below on the merits, maintain that
these should be declared inadmissible since they are manifestly
ill-founded.
2. The Merits
2.1 Article 3 of the Convention
The Government observe that the complaints under Article 3
refer to the event in May 1986 when Björn was brought back to Sweden
by his foster father without the consent of his parents.
According to what has been submitted to the Government by the
Social Council in this regard the Council was not informed about the
foster father's journey to Germany before he left. However, one of
the officers within the social welfare administration, who was
responsible for Björn's case, was informed by the foster father that
he was going to Germany to talk to Björn's parents. The officer
helped him to arrange his journey. She advised him not to go even if
she symphatised with his intention to try to persuade the parents to
let Björn return to Sweden.
The Government point out that the events to which this part
of the complaints relates have been examined by the Parliamentary
Ombudsman and that she concluded that it was not possible, through
further investigations, to get a clear idea of the full truth in the
matter. The Government cannot make any other assessment. They stress
that, regardless of what the truth in the matter is, the only thing
the responsible social welfare officer had in mind was to assist Björn
in what she considered to be a difficult situation for him. However,
it is beyond doubt that any participation in the foster father's
action would clearly have been contrary to Swedish law, if the social
welfare officer had been aware of his intention. The Government
maintain that this question cannot be solved without taking evidence
before a court.
The Government submit that, since the action was neither
initiated nor authorised by Swedish authorities, it can hardly be said
that it involves a violation of Article 3. The applicant's complaints
in this regard are manifestly ill-founded.
The measures taken by the foster father must also be seen in
the light of the fact that Björn's parents had brought him to Germany
without informing the foster parents or the social authorities.
Björn's parents thus neglected the prohibition on removal then in
force and their agreement with the foster parents to let them pick up
Björn late in the afternoon of 29 May.
2.2 Article 6 of the Convention
As to the alleged slowness of the proceedings the Government
submit that a decision to take a child into public care or to return a
child, who has been living in a foster home for a long time, to its
parents involves psychological and sometimes medical assessments which
can be very difficult. A parent's legitimate wish to live and be with
his or her child must be weighed against the child's welfare when the
two interests cannot be reconciled. But the interest of the child
must prevail when a conflict occurs. In order to establish the child's
interest the social authorities as well as the courts have, to a great
extent, to rely on evidence of doctors and psychologists. These
specialists have to base their assessments on careful investigations
of the child and often regarding its parents. These investigations
cannot be carried out too hastily.
It is uncontested that the application of 19 October 1984 was
not finally decided upon until 7 November 1986 when the Supreme
Administrative Court refused to grant leave to appeal. It is also
uncontested that Björn was returned to his parents on 21 April 1987.
However, it took the Social Council more than one year to get
sufficient information from different experts in order to be able to
determine the matter. This could be said to be one of the main
reasons for the delay. The Council's handling of the matter was
criticised by the Parliamentary Ombudsman in his decision of 19 June
1986. The measures taken by the Social Council at the end of 1986 and
in 1987 also affected the time-limit that was set by the courts.
According to the judgment by the Administrative Court of Appeal the
prohibition on removal should be terminated on 1 March 1987, which
would have been the case if the Social Council had not acted the way
it did.
In the Government's opinion it is the period from 19 October
1984 till 7 November 1986 that should be taken into account when the
condition "within a reasonable time" is examined. The Government
consider that this does not exceed the time-limit laid down in
Article 6. Even if the period until Björn was returned to his parents
is added the Government maintain that this condition is satisfied.
The case has been very complex and strong emotions are
involved. Consulted experts have been of different opinions and one
of them has withdrawn the opinion that he had first submitted to the
Social Council.
In the cases where Article 6 has been considered to be violated,
the period of time to be examined has been of considerable length. It
even seems clear that the European Court of Human Rights has accepted
periods of time which have been longer than the one in the present
case.
The Government are aware that a case like the present one
should and must be decided upon without delay and that necessary
psychological investigations should be carried out as soon as possible.
The Government maintain that, even if the Social Council's
dealing with the matter has been criticised by the Parliamentary
Ombudsman as far as the duration of the proceedings is concerned, the
length of the period looked upon as a whole cannot be considered as
violating Article 6. The complaints in this regard are manifestly
ill-founded.
2.3 Article 8 of the Convention
The Government admit that a prohibition on removal issued when
a care order is lifted constitutes an interference with the individual's
right to respect for family life as guaranteed in Article 8 para. 1 of
the Convention as does the care order itself. In view of the opinion
expressed by the Parliamentary Ombudsman the Government admit that the
social authorities have not been able to fulfil their task in creating
such conditions as to make a smooth transfer of Björn to his parents
possible. In the Government's view, however, the whole responsibility
for the failure cannot be placed on the social authorities.
From the files of the social authorities it appears for
instance that the applicants have created difficulties themselves when
they were to meet with Björn in 1983 and 1984.
In order to be justified under Article 8 para. 2 of the
Convention an interference must satisfy three conditions: it must be
in accordance with law, it must pursue one or more of the legitimate
aims enumerated in Article 8 para. 2 and it must be necessary "in a
democratic society" for that or those legitimate aims.
The Government submit that the measures and the decisions
taken up to and including 6 February 1986, when the care order was
lifted, were clearly in accordance with Swedish law, as was the
decision to lift the care order and issue a prohibition on removal. In
the Government's view the decisions of all the courts which have
examined the case from different points of view after that date were
also in accordance with the law within the meaning of the Convention.
The different actions taken by the social authorities in
spring 1986 and onwards have been carefully examined by the
Parliamentary Ombudsman. The Government cannot make any other
assessment of these actions than was made by the Ombudsman. She has
severely criticised the Social District Council and its officers
regarding the way the matter was handled during this period.
However, as the Ombudsman has stated, nothing indicates that
the social authorities had any other motives for their actions than
what they believed would be the best solution for Björn. It should be
noted that the Ombudsman has chosen not to take further actions
against the Social District Council and its officers.
The Government recall that the whole legislation aims at
protecting the interest of the child. They maintain that the
interference that has taken place was made in the interest of the
child. This is a legitimate aim under Article 8 para. 2, as falling
under the expression "for the protection of health or morals" and "for
the protection of the rights and freedoms of others".
Regarding the third condition the Government submit that it is
not the Commission's task to take the place of the competent national
courts and make a fresh examination of all the facts and evidence of a
case brought before it in the same way as may be done by a domestic
court. The Commission should review under Article 8 the decisions
taken while analysing the criteria applied and the reasons and
evidence on which each decision was based. Thus, the examination of
this case should be made with a view to establishing whether it was
necessary within the meaning of the Convention not to return Björn to
his parents and to issue the prohibition on removal when the care
order was lifted later on.
In the Government's opinion such an examination does not imply
that any misjudgment that may be considered in this regard must
constitute a violation of the Convention. An area must be provided
within which no violation can be found even if the decisions taken can
be questioned or even considered wrong provided that there are fair
reasons for the conclusions at which the competent authorities have
arrived. If this borderline is not properly fixed, the procedure under
the Convention will constitute an extra instance with a function very
similar to an extra instance within the State concerned.
In the Government's opinion this leads to the conclusion that
the Commission's examination of the present case should be limited
mainly to establishing whether the decisions taken have been based on
irrelevant circumstances, unacceptable criteria or standards or on
other reasons which cannot be considered fair. Another approach could
lead to consequences that were not foreseen by the authors of the
Convention. The examination aimed at establishing whether the
interference corresponds to "a pressing social need" can of course
result in different opinions. But the important thing in this case is
that such different opinions relate to the question whether a
separation from the foster parents could endanger Björn's mental
health or development. The condition "necessary in a democratic
society" should not be applied in such a way that a serious concern
with the aim of protecting a child's mental health from being
endangered could be considered a violation of the Convention. Such an
interpretation does not conform with the spirit of the Convention.
From the reasons given by the courts it is evident that the
best possible solution in Björn's interest, doing him as little harm
as possible, has been aimed at. This aim permeates the reasoning in
all the judgments. It has been an extremely difficult task since
psychiatric experts and doctors have taken different positions in what
should be done and how. In this case opinions can be divided but it
seems obvious that it was not possible to entrust Björn to his parents
without giving him some time. It is evident that one cannot return a
child that has lived for several years in a foster home to his parents
if one has not been successful in establishing a trustful relationship
between the child and his parents. If one does, there is a serious
risk of damage to the child's mental health and of infliction of
unnecessary suffering on the child.
In the Government's opinion the decisions of the courts
clearly satisfy the condition of being necessary within the meaning of
the Convention. Although there could be different opinions as to the
necessity of not letting Björn be reunited with his parents at an
earlier stage, the decisive question was when this could be done
without exposing Björn to unnecessary suffering. The Government
consider that differing opinions in this regard clearly fall within
the wide margin of appreciation afforded to the Contracting States.
As regards the measures taken by the social authorities after
the decision to lift the care order the Government find it difficult
to maintain, in view of the decisions of the Courts and the
Parliamentary Ombudsman, that the measures were necessary within the
meaning of the Convention. However, it must be emphasised that Björn
had lived nearly his whole life with his foster parents and the
investigations show that he had become very attached to them. There
were great problems in establishing a trustful relationship between
Björn and his parents. The social authorities and the courts
therefore had to carefully seek the best solution for Björn. The
Government refer to the documents upon which the courts and the social
authorities have based their assessments. The strong emotional
reactions which Björn seems to have shown when he should meet his
parents are pointed out. They made the organising of the meetings
between Björn and his parents an extremely difficult task.
In view of the special circumstances of the case the
Government leave it to the Commission to decide whether the actions taken
by the Social District Council, or the lack of actions, reveal a
violation of Article 8. In the Government's view, however, the
decisions taken by the courts do not amount to a violation of
Article 8. The complaints in this regard are manifestly ill-founded.
The applicants have alleged that the circumstances concerning
Björn's return to Sweden also constitute a violation of Article 8.
With reference to what has been said above the Government maintain
that the complaints in this regard are also manifestly ill-founded.
2.4 Article 13 of the Convention
The applicants have alleged violations of Articles 3, 6 and 8.
The complaints under Article 6 concern the duration of the
proceedings before the Social Council and the courts. The courts as
well as the social authorities are supervised by the Parlimentary
Ombudsman and the Chancellor of Justice. Complaints regarding
slowness in dealing with a case can be submitted to these organs. If
there are reasons for the complaints the authority concerned can be
criticised and in serious cases the person responsible for the delay
can be prosecuted. Disciplinary actions can also be instituted against
civil servants and officials who do not carry out their task properly.
The Social Council is also supervised by the County
Administrative Board which is obliged to see to it that the Council
carry out its tasks properly. Complaints can be lodged with the Board
which can take proper actions after having made necessary
investigations. This remedy was used by the applicants.
As far as Articles 3 and 8 are concerned the Government submit
that the court proceedings as such constitute an effective remedy.
Everyone is free to refer to the contents of an Article of the
Convention if he so wishes when arguing a case. The Convention is not
incorporated into Swedish law. However, arguments based on Articles
in the Convention must be taken into account and be examined by the
court as any other argument. An alleged violation of the Convention
is thus examined and will affect a decision on the matter even if a
Swedish court normally does not express its opinion regarding the
interpretation of a Convention Article explicitly.
The Government also point out that an official responsible for
a decision or action violating the law which also could involve a
violation of the Convention can be prosecuted. It is possible to
prosecute a person for misuse of office or negligence in office.
If the circumstances call for such measures they usually appear from
investigations carried out by the Parliamentary Ombudsman or by the
Chancellor of Justice since such cases normally are reported to these
organs.
The Government submit that there has been no violation of
Article 13 and that the complaints in this regard are manifestly
ill-founded.
3. Conclusions
The Government conclude:
- concerning the admissibility
that the application should be declared inadmissible, partly
for being incompatible ratione materiae with the Convention, partly
for being incompatible ratione personae with the Convention and partly
for being manifestly ill-founded, and
- concerning the merits
that there has been no violation of the Convention.
B. The Applicants
1. The Admissibility
As to their complaints concerning Björn's return to Sweden the
applicants submit that Swedish foster parents would never kidnap their
foster child, a German citizen, in Germany, especially after having
been instructed to co-operate in the reunification of the foster child
with his parents, if they had not been assured that there would be no
reaction against the kidnapping from the Swedish authorities. In
addition the authorities took part in the kidnapping through the
Chairman's decision to take Björn into public care, by reporting the
incident to the police and by financing the foster father's trip to
Germany. The financing was essential for the kidnapping before the
prohibition on removal of Björn from the foster parents would be
revoked.
To kidnap human beings and take them from their native country
to a remote country is in the applicants' view inhuman and degrading
since a six year old child has been kidnapped from his legitimate
parents for the purpose of an illegal pseudo-adoption. The
co-operation between the social workers, the Social Council and the
foster parents throughout the whole procedure clearly shows that their
aim has never been to let Björn be reunited with his parents.
The Government's submission that these measures were taken out
of serious concern for a child's well-being shows an astounding
cynicism.
The Government incorrectly state that Swedish authorities
could have asked for police assistance to enforce Björn's return to
the foster home. This could obviously not have been the case if the
Government are referring to the German police authorities. If the
Government are referring to the Swedish police authorities their
statement is also misleading. The Deputy Chairman's decision to take
Björn into public care was contrary to the law and would have been
quashed by the County Administrative Court. Some time after this,
probably just a few days or a week later, the prohibition to remove
Björn would have appeared ridiculous and would have been nullified. A
correct description of the legal conditions underlines the breach of
Article 3 of the Convention.
2. The Merits
2.1 Article 3 of the Convention
The kidnapping of Björn must in the applicant's view be seen
in the light of the fact that the Ministry for Foreign Affairs had
informed the social authorities about the possibilities to have Björn
returned to his foster parents in Sweden. The information must have
made it clear to the social welfare officer in charge and to the
foster parents that the case was out of the hands of the Swedish
authorities and that, even if the action of the applicants was
prohibited, nothing could be done about it. The kidnapping was the
only remaining alternative.
The applicants do not accept that the social welfare officer,
who had dealt with Björn's case for several years, believed that
Björn's foster father would have a chance to persuade Björn's parents
to let Björn go back to Sweden with him. If the foster father had
been concerned about Björn's well-being, he could of course have
discussed this with Björn's parents in a civilised manner when he came
to Germany. But had he done that, his chances to kidnap Björn would
have been spoilt. He must have realised this since he chose to act
quickly and secretly.
The social welfare officers not only sympathised with the
foster father's plan to kidnap Björn but they encouraged it. They
knew the address of the Nyberg family in Germany and their telephone
number. They could have phoned Björn's parents if they wanted to talk
to them. The hurry to arrange the air tickets was caused by the
intention to kidnap Björn. It is likely that the Social Council would
have revoked the prohibition on removal if Björn had stayed with his
parents a few days more.
The foster parents naturally had no independent right to Björn
and were well aware of that. They obviously acted the way they did
because they had been guaranteed to keep Björn if the kidnapping was
successful.
The logical reason for the decision of 29 May 1986 of the
Deputy Chairman of the Social Council to take Björn into care must have
been that the Social Council wanted to correct the information given
by the Ministry for Foreign Affairs. In case the kidnapping would be
a failure or cause an interference by the German police the decision
could be used to deceive the German authorities. The decision is a
strong indication that the social officers and the Social Council knew
about the plans to kidnap Björn. In addition the money advanced for
the air tickets was a condition for the realisation of the kidnapping.
As has been mentioned above, the kidnapping of a six year old
child from his legitimate parents is a cruel, inhuman and degrading
action.
2.2 Article 6 of the Convention
The applicants submit that Björn has unnecessarily been
detained in a foster home for a long period of time, at least from
1983. There have during that period been many occasions and reasons
to reunite Björn quickly and smoothly with his family. The
reunification did not take place until April 1987 because of the
energetic resistance from the Swedish authorities. Important years of
Björn's childhood have been wasted and turned into suffering for him
and his family. This has been said to have been done in Björn's
interest which has been alleged to be in conflict with that of his
parents.
The Swedish philosophy concerning the taking of children into
care is in the applicants' view a primitive expert cult with
catastrophic consequences for children and parents. It only brings
joy to the continuously growing autocratic bureaucracy. The
Government admit that the authorities, to a great extent, have to
trust the evidence given by doctors and psychiatrists. This of course
does not mean that the courts and the lawyers must let them completely
out of control. If the children in question are healthy and the
parents healthy and loving, it is naturally necessary in the relation
between them to leave some room for common sense, but also for unknown
and valuable influences. This is not knowledge that is reserved for
psychiatrists or psychologists.
The Swedish model for examinations with its many primitive
methods and unscientific theories seems to be unique in the western
world. The assessments made are an abuse of psychiatry and
psychology. The examinations that have been made of Björn have, apart
from their primitive and speculative contents, no substance of a kind
that would have prevented them from being carried out far earlier and
in a considerably shorter time.
Björn was taken into public care because of an incorrect
prognosis of his mother's mental health and of how the spouses Nyberg
would function as a family. Already in 1984 the misjudgments had been
corrected by adult psychiatrists involved in the case. If Björn had
not been definitely replaced it would have been easy to arrange a
child psychiatric opinion about him at that time, whatever purpose it
would have served. What reveals the mentality of the social
authorities is, not only their efforts to have the prohibitions on
removal prolonged by the courts, but also their abuse of the time they
gained thereby. Any reasonable step leading to a family reunification
was neglected.
The breaches of the Nyberg family's rights started in August
1982 when a psychiatrist made the assessment that Birgitt Nyberg soon
would recover and be able to take care of her son. Since then the
applicants have unceasingly and persistently, with strong support from
the adult psychiatrists, tried to get their child back. Only because
of fortunate circumstances they finally succeeded after four and a
half years in having Björn returned to them.
The applicants' case was in fact very simple. There was a
good relation between the parents and their second son, who was a fine
healthy child that had been well looked after. Mrs. Nyberg had made
an extremely stable recovery not long after she had been taken ill.
Mr. Nyberg suffered from some minor mental problems but co-operated
closely with and received support from adult psychiatrists. He
further took care of the housework while his wife was at work. In
short, a well-functioning family, well-suited for having the full
responsibility for small children.
The difficulties in this case have been created by the
bureaucrats involved. The family's main problem was the definite
placement of Björn in a foster family and the intervention in the case
by child psychiatrists. The experts who claim to know such a lot about
children's needs and the relations between children and parents are in
opposition to adult psychiatry and common sense. The need for those
experts and their assessments must be questioned.
The extent and the contents of the child psychiatric opinions
- irrespective of being unscientific and of giving meaningless
motivations - show that they could have been prepared in a
considerably shorter time. If the social welfare officers had the
intention not to accept the assessments made by the adult
psychiatrists they should have ordered the child psychiatric opinion
immediately. When delaying the matter, the welfare officers again
showed that they use child psychiatry as a weapon against parents.
The only way to stop the reunification of the Nyberg family was to let
time pass.
It was unfortunate that the reunification should be the matter
of legal procedure of an apparently serious nature for nine months and
that the prohibition on removal was made valid for a year without any
clear directions as to what would happen when that time had expired.
Such arrangements aim at preventing a reunification.
The criticism put forward by the Parliamentary Ombudsman as to
the District Council's slow handling of Björn's case is tragi-comical
in view of the continued delays of the matter by appeals both to the
Administrtive Court of Appeal and to the Supreme Administrative Court
and by the failure to take any measures for the reunification of the
family while the courts examined the appeals.
The abuse of child psychiatry and the delaying of the
reunification of the Nyberg family violated Article 6 of the
Convention.
2.3 Article 8 of the Convention
The prohibition on removal of Björn interfered with the
applicants' right to respect for family life as guaranteed in Article
8 para. 1 of the Convention. Legislation should allow the social
authorities and the courts the use of this measure only when certain
well-defined criteria are fulfilled and for a short period of time.
A decision to discontinue the public care of a child is made
when the child's parents are again considered to be able to take care
of it. It should be followed by a reunification of the parents and
the child. Prohibitions on removal have no support in law but are
based on general and completely unlimited authority to exercise power
arbitrarily. Court procedure is a farce, when the speculations of
psychology are not only superior to law, but interpreted by
bureaucrats and those supported by them. The prohibition to remove
Björn from his foster parents was not necessary in a democratic
society, but was in breach of one of the most fundamental aims of the
Convention, i.e. the principle of the rule of law, and contrary to
ideals concerning freedom of the individual that are common to the
Convention States.
A prohibition on removal is a weapon against the human rights
of parents especially if obtained under the lordship of psychological
terminology. The difference between a prohibition valid until further
notice and a prohibition valid for a certain period of time is
revealed in the present case. The social authorities prefer a
prohibition valid until further notice since it leaves them unlimited
time during which they do not have to arrange a reunification of the
child with its parents. The position of the parents is not stronger
when the prohibition is valid for a certain period of time. The only
difference is that the parents can point out that no measures have
been taken to reunite them with their child. An effect of a
prohibition on removal is that, since the child is no longer in public
care, the parents have no right of access to the child.
In March 1987 the Social Council issued a new prohibition on
removal of Björn, although the prohibition decided by the courts had
been valid for more than one year. This shows that the prohibitions
on removal are used for completely alien purposes. It would be hard,
not to say impossible, to find cases where the prohibitions on removal
have not been valid for so long that they effectively prevented the
parents from having their children back.
It is in principle of no importance who is accused of having
done something wrong as concerns the placing of Björn in the foster
home and the measures taken in connection with it. The system of
unlawfulness covered by propaganda, even in the texts of the statutes,
automatically leads to violations of family rights. The Nyberg family
is not the only family to experience this. It is next to impossible
for parents to have a child, who has been taken into care, returned to
them if individual welfare officers are opposed to it.
Swedish law is not only vague but without contents and
subordinate to psychology. The fact that the State places experts at
the parents' disposal is without importance. Since the experts move
in areas where no knowledge can be obtained, their investigations are
meaningless, independently of how many experts have been mobilised on
each side. In Sweden there is an additional problem, namely that,
since the experts, for their support, depend on commissions assigned
to them by the social welfare officers, it is almost impossible for
parents to engage an expert.
The social welfare officers have not been acting in good faith
in this case. Already when they started their investigation they had
the intention to make Björn's stay in the foster home definite and
they realised the value of a time-consuming investigation. Two social
welfare officers demanded, after five long monotonous talks with the
spouses Nyberg, three more talks. Nothing of what came out of those
talks was accounted for in any investigation. The Nybergs found the
talks degrading and bullying, the intention being to break their
unity. As appears from the social authority's opinion to the County
Administrative Court the authority had already made the assessment
that Björn belonged in the foster home.
The social authority's determination as to where Björn
belonged, in connection with the increasing work of the bureaucrats
and the engagement of great numbers of them, for example in Jönköping
when Björn should get to know his family, shows how the abstraction
"in the child's interest" in an unpleasant way seems to coincide with
the interest of bureaucracy. Björn was happy to be reunited with his
family already in May 1986, and would naturally have been so if the
reunification had taken place in 1984, as it should have done. Those
who have unlimited power can always claim to act in the interest of
their victims.
In all social districts of Sweden children are permanently
placed in foster homes, which proves that the country lacks competent
courts. The lack is due to psychological scales of value and prognoses
concerning healthy children, based on theories which have been
developed in Sweden and which are questioned in scientific
literature. Thus, there is no need for the Commission to go through
all the facts and evidence of a case like the present one. The
Government should instead prove that relevant facts and evidence exist
and not only speculative theories.
The opinion of those who have come into contact with the
Nyberg family, without ambitions of power or money, is that Björn
should never have been placed in a foster home in 1982 as his mother
recovered so soon. After her recovery, she energetically and cleverly
fought to get her child back. Björn's case does not fall within the
area of incorrect but tolerable care decisions as the Government
maintain. If there is respect for human beings and for life in cases
like the present one, that kind of mistake need not be made and if it
is made it is easily and quickly corrected by independent courts.
To set the limits for care decisions in cases where there is
doubt and to correct mistakes quickly is not a delicate task. It
functioned well in Sweden until psychological assessments and prognoses
became the fundamental not to say the only support for care decisions.
The treatment of Björn, almost like some kind of profitable
property, reveals that the decisions taken were based on irrelevant
circumstances and uncivilised criteria or standards and that unjust
methods were used, for example as the welfare officers circumstantially
and thoroughly worked on the case with the secret aim that Björn would
not be reunited with his parents. The measures taken by the social
authorities clearly show that the legal criteria of the legislation,
as well as the courts' judgments and decisions, have no importance.
Within the areas of forensic psychiatry and compulsory care of
mentally ill, there exist whole series of clear criteria and court
control of their application and of the level of the assessments made.
This is not the case in Sweden when it comes to assessing the risk
that a healthy child will get a psychosis. Björn's sound reaction
when he was reunited with his parents, and uninfluenced by the adults
who were trying to prevent the reunification, shows that the prognoses
made of him were in fact not even art of divination, but merely
bureaucratic assault.
The Government maintain that the aim of the authorities has
been to do Björn as little harm as possible, i.e. in an abstract
prognosticating sense. The prognoses of Björn and his parents were
based on unsubstantiated facts, which shows that any parent in Sweden
suffering from a minor mental insufficiency hardly has, however
quickly he recovers, a chance to have a child that has been taken into
care returned.
The Government also maintain that there were great problems in
establishing a trustful relationship between Björn and his parents.
This "trustful relationship" between a small child and its parents,
who love it, seems to be a condition that can lead to a decision of
any kind. The result is given beforehand, when those who try to
prevent the efforts to create good relations, are also assigned to
assess the relations. Both Dr. Gunnel Hörnqvist and nurse Nancy de
Sousa, at the hearing in the County Adminisrative Court, confirmed the
good relations Björn had with his parents when he visited them.
The described violent reactions of Björn are a tragi-comical
expression of the mediocre level of the investigations. It is a
well-known fact that children can be easily manipulated. Björn knew
what his foster parents expected of him, and in his position of
dependence, he tried to come up to their expectations when they were
in the neighbourhood. A lot of bureaucrats were engaged in the
measures taken to reunite Björn with his parents. It is hard to
imagine more repellent arrangements than those made and it is no
wonder that the stress surrounding the meetings made it impossible to
create natural and calm conditions.
The spouses Nyberg have not made any accusations of faults or
misunderstandings, they humbly want to expose how family life and the
relation between children and parents are made bureaucratic in a
basically systematised and loathsome way. An example of this is the
attempts that were made in 1982 to make Birgitt Nyberg leave her
husband, in order to have the care order concerning Björn revoked.
These attempts could amount to a violation of Article 12 of the
Convention. Björn was and still is a healthy child and his reunion
with the applicants should have been undramatised and arranged much
earlier.
With regard to Björn's trip to Germany with his parents the
applicants argue that a decision that the public care of a child
should be discontinued returns to its parents the fundamental right to
decide the whereabouts of the child and in principle the child should
be returned to its parents. When the Nybergs decided to keep Björn
with them they in fact enforced the decision that the public care
should come to an end. The Swedish police thus cannot in cases like
the present one interfere and return the child to its foster parents
at a request from the welfare officers. In order for the police to do
that a decision taken by the County Administrative Court is required.
In the present case the social authorities evidently
considered that the possibilities were small that the County
Administrative Court would decide that Björn should be returned to
his foster parents for continued arrangements for his return to his
parents. A prohibition on removal cannot form the basis for a request
for enforcement, nor can it justify a renewed decision of public care.
The kidnapping of Björn in Germany delayed his reunification
with his parents for about eleven months. To let the kidnapping pass
unpunished and even be successful is, looking at Björn's and his
parents' situation from 2 June 1986 to 21 April 1987, a flagrant
breach of Article 8 of the Convention.
2.4 Article 13 of the Convention
The applicants had no independent right to prosecute the
foster father, the social welfare officers or members of the Social
Council. They have addressed themselves to all instances but not one
of the social welfare officers or members of the Social Council has
been questioned.
The view of the Public Prosecution Authority that the foster
father acted out of necessity is untenable. It shows how the human
rights of parents are eliminated even within the criminal law.
Penalties for parents are increased and parents are reported as wanted
by the police, but concerning confessed crimes, the Prosecutor-General
invents excuses.
The applicants find no legal influence of the European
Convention on Human Rights in any Swedish court decision. If a Swedish
lawyer invokes the Convention he will either be found to be ridiculous
or annoying.
Incorporation of the Convention into Swedish law would to a
great extent prevent the injustices that are now carried out with the
help of psychiatry and demagogic expressions like "the interest of the
child" and "children's rights".
The Government's allegation that officials can be held
responsible for decisions or actions violating the law is misleading.
One of the prerequisites for the crime misuse of office is intent as
concerns the violation of the law and, as concerns negligence in
office, a prerequisite is gross negligence.
The power concerning care decisions is with the social welfare
officers working in the field. They collect information and pass it on
to the Social Council. They have the right to decide over almost 98%
of the money on the social authority's budget and thereby have power
over the income of psychiatrists and psychologists. Through the
position of power they get from provisional chairman's decisions, they
can also give orders to the police when there is a question of
intervention in a home to take a child away by force. At the same time
it is hinted in some statutes that the position of the social welfare
officers is so subordinate that they should be excluded from disciplinary
punishments.
THE LAW
1. The applicants complain that they have been victims of a
breach of Article 8 (Art. 8) of the Convention because of the refusal
until April 1987 to allow them to take Björn home. They submit that
the only reason appeared to be that the social authorities considered
the foster home to be a better home than the applicants' home. A
prohibition on removal, which formally is a decision aiming at a
smooth transfer of a child from the foster parents to the natural
parents, in practice is taken for the opposite purpose, namely to
obstruct the return of the child to its natural parents. The social
authorities did nothing to reunite them with their son and their
contact with him has been obstructed. The access to their son was not
sufficient to promote the aim of reunification. The applicants
further complain that the kidnapping of Björn in the Federal Republic
of Germany shows disrespect for family life in breach of Article 8
(Art. 8) of the Convention.
The Government admit that a prohibition on removal issued when
a care order is lifted constitutes an interference with family life and
that the social authorities have not been able to fulfil their task of
arranging a smooth transfer of Björn to his parents. They submit,
however, that the whole responsibility cannot be placed on the social
authorities and that the measures and decisions complained of were
justified under the second paragraph of Article 8 (Art. 8) as being
lawful and necessary in a democratic society in the interest of Björn,
as far as they were taken up to and including 6 February 1986, when
the care order was lifted and the prohibition on removal issued. This
is also the case with the decisions taken by the courts after that
date. As regards the measures taken by the social authorities after
the care order was lifted the Government refer to the strong criticism
expressed by the Parliamentary Ombudsman and leave it to the
Commission to decide whether they were lawful and necessary within the
meaning of the Convention.
As to the complaint concerning Björn's return to Sweden the
Government submit that the actions taken by the foster father were
neither initiated nor authorised by Swedish authorities. The
Government contend that the complaint should be declared inadmissible
for being incompatible with the provisions of the Convention or,
alternatively, for being manifestly ill-founded.
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 must examine whether the acts complained of
constitute an interference with the applicants' right to respect for
family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the
Convention and, if so, whether any such interference is justified
under the terms of Article 8 para. 2 (Art. 8-2) of the Convention as
being "in accordance with the law" and "necessary in a democratic
society" for any of the purposes enumerated in that paragraph. The
Commission must also have regard, in this context, to the delay in the
proceedings referred to below in relation to Article 6 (Art. 6) of the
Convention (see para. 3 below).
The Commission has carried out a preliminary examination of
the above issues. It finds that they raise questions of fact and law
which are of such complexity that their determination requires an
examination of the merits. This part of the application is therefore
not manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, but must be declared admissible, no
other ground for declaring it inadmissible having been established.
2. The applicants also allege that the kidnapping of Björn in the
Federal Republic of Germany is a breach of Article 3 (Art. 3) of the
Convention. They contend that the social authorities condoned the
kidnapping.
The Commission considers that the facts on which this
allegation is based are the same as those facts declared admissible
above. This part of the application must therefore also be declared
admissible.
3. The applicants further complain that the delay in the
reunification of their family, partly through administrative slowness,
partly through successive delays of different authorities, violated
Article 6 para. 1 (Art. 6-1) of the Convention in that a "civil right"
has not been determined "within a reasonable time".
The Government submit that it is the period from 19 October 1984
till 7 November 1986 that should be taken into account when the
condition "within a reasonable time" is examined. They contend that
this period does not exceed the time-limit laid down in Article 6
(Art. 6) . Even if the period until Björn was returned to his parents
is added the Government maintain that this condition is satisfied.
The first sentence of Article 6 para. 1 (Art. 6-1) of the
Convention reads as follows:
"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 issue to be decided by the Commission is whether the
applicants' "civil rights" have been determined "within a reasonable
time".
The Commission has made a preliminary examination of this
issue in the light of the parties' submissions. It considers that it
raises questions of fact and law, which are of such a complexity that
their determination requires an examination of the merits. This part
of the application is therefore also admissible.
4. The applicants have finally invoked Article 13 (Art.13) of the
Convention, contending that there exists no effective remedy for the
alleged violations of other provisions of the Convention.
The Government submit that this complaint is manifestly
ill-founded.
Article 13 (Art. 13) of the Convention provides:
"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 Commission considers that this complaint is closely
related to the other complaints made by the applicants and that it
must therefore also be declared admissible.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)