Lexploria

Application No. 12256/86

by L.

against Sweden

The European Commission of Human Rights sitting in private

on 4 July 1988, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

A. S. GÖZÜBÜYÜK

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 June 1986

by Ferenc Lovasz against Sweden and registered on 1 July 1986 under

file No. 12256/86;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen of Hungarian origin, born

in 1936. He resides at Huddinge and is at present unemployed. Before

the Commission, the applicant is represented by Mr. Lennart Möller, a

lawyer practising in Stockholm.

The application concerns the refusal to terminate the care of

the applicant's son, born in 1975.

The applicant and his wife divorced in 1980. Shortly

afterwards his ex-wife died and the custody of their son was given

to the applicant. In October 1982 the applicant's son was taken into

care on a provisional basis and subsequently the Social District

Council (sociala distriktsnämnden) of Bjuv applied to the Regional

Administrative Court (länsrätten) for the taking into care of the

applicant's son. On 6 December 1982 the Regional Administrative Court

ordered that the applicant's son should be taken into care and by

judgment of 7 July 1983 the Administrative Court of Appeal

(kammarrätten) rejected the applicant's appeal against this judgment.

Finally on 14 November 1983 the Supreme Administrative Court

(regeringsrätten) refused leave to appeal against the judgment of the

Administrative Court of Appeal.

On 4 May 1984 the applicant lodged an application with the

European Commission of Human Rights (No. 10967/84) complaining that he

had been the victim of a breach of Article 8 of the Convention as a

result of the decision to take his son into care. After having

communicated the case to the Swedish Government in order to obtain

their written observations on the admissibility and merits of the

application and after receiving the Government's observations as well

as the applicant's observations in reply, the Commission declared the

above complaint inadmissible as being manifestly ill-founded within

the meaning of Article 27 para. 2 of the Convention. In its decision

of 11 December 1985 the Commission stated:

"The Commission finds that the taking of the applicant's child

into public care interfered with the applicant's right to

respect for his family life as ensured by Article 8 para. 1 of the

Convention.

It must therefore be examined whether this interference was

justified under the terms of Article 8 para 2. The Commission

finds that the interference was 'in accordance with the law',

namely Section 1, first paragraph (1) of the Act with Special

Provisions on the Care of Young Persons. The Commission is

furthermore of the opinion that the interference had a

legitimate aim under Article 8 para. 2 namely the interests of

the child which in this case fall under the expressions 'for

the protection of health or morals' and 'for the protection of

the rights and freedoms of others'. It remains to be

determined whether the interference was 'necessary in a

democratic society' in the interests of the child.

When determining whether or not the taking of the applicant's

child into public care was 'necessary in a democratic

society' in the interests of the child, the Commission

observes that it is not its task to take the place of the

competent national courts but rather to review under

Article 8 the decisions which have been taken by the domestic

authorities.

It goes without saying that it is difficult to ascertain what

precisely is the best interest of the child. The Commission

stresses that the issue in this case is not simply what is

the best solution for the child. Under Article 8, an

interference with the right of the parent to take care of his

child cannot be justified only on the basis that it would be

better for the child to be taken care of by foster parents. In

order to justify such an interference, it is necessary under

the terms of Article 8 that the State demonstrates sufficient

reasons for the decision to take the child into public care.

Those reasons should be at such a weight as to render the

decision of public care 'necessary in a democratic society'.

The Commission has first had regard to the wording of the

relevant legal provisions, in particular Section 1 of the Act

with Special Provisions on the Care of Young Persons. Under

this provision a child may be taken into public care if the

lack of care of the child or any other conditions in the

child's home entails danger to the health or development of

the child. If these conditions are at hand, the Regional

Administrative Court may upon application from the competent

Social Authority decide to take the child into public care.

In the present case the domestic courts found that the

applicant had for many years lived under strong psychological

pressure and that he was psychologically very unstable. It has

also been established that there were conflicts between the

applicant and the authorities. Intensive efforts had been made

by the social authorities to assist the family on a voluntary

basis. It was concluded that there was a need for public care

of the child. The Commission notes in this context that the

applicant has threatened to kill himself and his son. The

applicant has submitted this was a 'hasty utterance'.

The Commission furthermore notes that the decision to take the

applicant's child into public care was arrived at following

thorough investigation and the procedure on various levels,

the first being the competent social authorities and

thereafter three levels of court review. The Commission is of

the opinion that the procedure applied has shown sufficient

respect for the applicant's family and private life.

The Commission considers that the decisions taken by the

Swedish courts were reasonable in the circumstances. It is the

Commission's opinion that the justification for these decisions

cannot be questioned as a result of the subsequent developments

and decisions. The Commission is therefore of the opinion that

interference with the applicant's right under Article 8 para. 1

of the Convention was justified under the terms of Article 8

para. 2 as being necessary in a democratic society in the

interests of the child."

Prior to the Commission's above decision, the Social District

Council decided on 11 September 1985 to continue to keep the

applicant's son in care in accordance with the Act with Special

Provisions on the Care of Young Persons. Furthermore it was decided to

maintain a prohibition on visits and to keep the applicant's son's

place of living secret to the applicant.

On 2 October 1985 the applicant complained to the Regional

Administrative Court about the decisions of the social authorities.

The Court held a hearing in the case on 29 October 1985 during which

the Social District Council maintained its views in regard to the

termination of the care order and the implementation of the same. The

applicant, who was present at the hearing and assisted by counsel,

maintained that no facts, conflicts or problems were at hand, which

could justify the decisions taken by the Social District Council.

Finally counsel for the applicant's son submitted that there was no

reason to terminate the care order. He pointed out, however, that it

would not seem reasonable to keep the child's place of residence

secret to the applicant and that it would be important that visits

could be arranged between father and son in order to obtain a

reasonable contact between them.

In its judgment of 13 November 1985 the Regional

Administrative Court stated the following:

"With regard to the question as to whether the care order

should be terminated, the Regional Administrative Court

decides as follows. As concluded by previous courts on various

occasions, the inquiry of the present case reveals that (the

applicant) has been unable to cope with his situation and he

has completely concentrated on the proceedings concerning his

son and locked himself up in his morbid suspiciousness. The

Regional Administrative Court finds that this situation and

(the applicant's) attitude towards the authorities obviously

has influenced his whole lifestyle. His fight to get (his son)

back is his full-time occupation and there is no reason to

doubt that, due to this, he has not had the power to plan his

own work. It is true that Dr. P.F.-F. in a medical opinion,

submitted in this case, states that (the applicant) in his

view is fully capable of taking care of his son. The witness

M. has also been of this opinion. However, the Regional

Administrative Court considers for its part that (the

applicant) still lives under such strong psychic pressure and

that he is psychologically unstable to such an extent that it

appears necessary that he and his son meet on a regular basis

during a longer period of time before there can be any

question of terminating the care of (the son). The Court bases

this view on the numerous threats and incidents which appear

from the considerable material of the case and on the

impressions of (the applicant's) person which the Court has

got.

All in all the Court accordingly finds that (the son) needs to

remain in care according to the Act with Special Provisions on

the Care of Young Persons for a further period of time. This

part of the application is therefore rejected.

Concerning the prohibition on visits, the Court has already

mentioned above that father and son must be given the chance

to meet on a regular basis before there can be a question of

terminating the care order. From the file of this case, it

appears that the social authorities have also considered this

question. To secure the safety of (the child) and the foster-

home, the Court finds it appropriate that these visits take

place outside the foster-home and in an appropriate manner.

The Social District Council should take care of this, such as

how, where and when the meeting shall take place. This part of

the application is accordingly accepted.

Hereafter, it is left for the Court to consider whether the

decision to keep the son's whereabouts secret shall be

maintained. In this respect, it has been submitted that (the

applicant) now knows where (his son) is. Therefore the Court

finds that the decision is of no interest at the present

moment and the complaint in this respect does not give the

Court reason to do anything but express the view that the

Social District Council appears to have had reasons to take

such a decision."

The applicant appealed against this judgment, insofar as it

concerned the refusal to terminate the care order, to the

Administrative Court of Appeal of Stockholm. The Court held a hearing

in the case where the applicant was present and assisted by counsel.

As in the lower court, his son was also represented by counsel before

the Administrative Court of Appeal. In its judgment of 4 February

1986, the Court stated as follows:

"In addition to what appears from the file, the Administrative

Court of Appeal has been informed of what happened during a

visit of 14 January 1986 between (the applicant) and (his

son). Furthermore, (the applicant) has in detail explained to

the Court during the oral hearing how he experienced the

course of events in the case and his views on the authorities'

handling of the case. The witness M. has described the

relationship between (the applicant) and his son during the

visit of an hour on 14 January 1986 as very satisfactory. The

Social District Council has raised no objections concerning

the relationship between father and son during the above

mentioned meeting.

The question in this case concerns first of all whether the

circumstances are now such that the care order can be

terminated. The Administrative Court of Appeal evaluates this

as follows.

(The son) has been in care since 20 October 1982. The Social

District Council decided on 27 October 1982 to keep (the

son's) address secret and on 15 June 1983 as well as on 31

October 1984 it decided to prohibit visits. During the period

of care there has been no real contact between (the applicant)

and his son. It is undisputed in this case that the contact

between (the applicant) and his son functioned well during the

meeting of an hour on 14 January 1986. The question whether

the care in accordance with the Act with Special Provisions on

the Care of Young Persons can be terminated cannot, however,

in the Court's opinion be decided only on the basis of what

has emerged during the above visit. On the basis of an overall

view of what has emerged, the Court finds that the

circumstances are not such that the care order should be

terminated."

The applicant appealed against this judgment to the Supreme

Administrative Court which, by decision of 13 March 1986, refused to

grant leave to appeal.

COMPLAINTS

The applicant alleges that his rights under Article 8 of the

Convention have been violated when his son was taken into care. He

also maintains that the social authorities' implementation of the care

order was inappropriate, in particular since they decided to keep his

son's address secret and since they decided not to arrange any visits

between them.

The applicant further maintains that the decision not to

terminate the care order was taken on the basis of facts which failed

to show that there was a need for such a step.

THE LAW

1. The applicant has complained that his right to respect for

his private and family life has been interfered with in a manner

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

In particular he has pointed out that the social authorities' handling

of his case was improper and that the refusal to terminate the care

order concerning his son was decided without it having been

established that there was a need to do so.

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

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

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

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

prevention of disorder or crime, for the protection of

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

freedoms of others."

The Commission recalls that the taking into care of the

applicant's son was dealt with in his previous application to the

Commission which was declared inadmissible on 11 December 1985

(No. 10967/84). Accordingly in so far as the applicant complains of

the fact that his child was taken into care, the Commission finds that

this question is substantially the same as the one examined in the

applicant's previous application and that it contains no relevant new

information. This part of the application is therefore to be rejected

in accordance with Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

2. However, the refusal to terminate the care order as well as

the actual implementation of it also interfered, in the Commission's

view, with the applicant's right to respect for his family life as

ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It must

therefore be examined whether this interference was justified under

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

Commission recalls that three conditions must be satisfied: the

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

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

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

or those legitimate aims.

As regards the first condition, the Commission recalls its

opinion in the case of Olsson v. Sweden (Olsson v. Sweden, Comm.

Report 2.12.86, para. 139) where it found that the relevant provisions

in the Swedish Acts, although vague, could not be considered as not

satisfying the requirements as to the quality of the law. This view

was confirmed by the European Court of Human Rights in its judgment in

the Olsson case (Eur. Court H.R., Olsson judgment of 24 March 1988,

Series A No. 130, paras. 60-63).

In the opinion of the Commission, there is nothing to suggest

that the decision taken by the Courts in the present case was contrary

to Swedish law. The issue of continued care was examined by the

competent administrative courts up to the Supreme Administrative

Court, which refused to grant leave to appeal.

The Commission is furthermore of the opinion that the

interference had a legitimate aim under Article 8 para. 2 (Art. 8-2),

namely the interests of the child, which in this case fall under the

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

protection of the rights and freedoms of others".

In these circumstances, the Commission finds that the decision

in question was taken "in accordance with the law" within the meaning

of Article 8 para. 2 (Art. 8-2) of the Convention and that it had a

legitimate aim (cf. also above-mentioned Olsson judgment, paras. 64 to

65).

It thus remains to be determined whether the interference was

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

According to the established case-law of the European Court of

Human Rights, the notion of necessity implies that the interference

corresponds to a pressing social need and, in particular, that it is

proportionate to the legitimate aim pursued. In determining whether an

interference is "necessary in a democratic society", the Commission

furthermore has to take into account that a margin of appreciation is

left to the Contracting States (cf. above-mentioned Olsson judgment,

para. 67).

However, the Convention organs' review is not limited to

ascertaining whether the respondent State has exercised its discretion

reasonably, carefully and in good faith, and they cannot confine

themselves to considering the relevant decisions in isolation but must

look at them in the light of the case as a whole. They must determine

whether the reasons adduced to justify the interference at issue are

"relevant and sufficient" (cf. Olsson judgment, para. 68).

In the present case, the Commission recalls that the applicant

has alleged that the social authorities have handled his case

improperly and that the decision not to terminate the care order was

based on irrelevant circumstances.

Before considering the substance of this issue, the Commission

recalls that both the Regional Administrative Court and the

Administrative Court of Appeal held oral hearings. The applicant was

present at both hearings and was assisted by a lawyer. Before these

courts, the applicant had the possibility of presenting any views

which in his opinion would be decisive for the outcome of the case.

Having regard to these facts, the Commission finds that, in so far as

certain procedural requirements are implicit in Article 8 (Art. 8), these

requirements were satisfied since the applicant was involved in the

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

requisite protection of his interests.

As regards the refusal to terminate care, the Commission

recalls the judgment of the Regional Administrative Court of

13 November 1985 where the Court established that the applicant was

still living under such psychic pressure and was still in such a

condition that the question of terminating care could only be

considered subsequent to regular visits between the applicant and his

son. This evaluation, like that of the Administrative Court of Appeal

which confirmed it, was made not only on the basis of written material

but also on the basis of a hearing in the presence of the applicant.

The Commission considers that it is justifiable not to terminate care

unless the improvement in the circumstances that occasioned it appears

with reasonable certainty to be stable. It would clearly be contrary

to the interests of the child concerned to be restored to his father,

only to be taken into care again shortly afterwards (cf. Olsson

judgment, para. 76).

In the present case, the Commission recalls that it was such

circumstances which led the Swedish courts to refuse to terminate

care and, seen in this light, the Commission finds that the Swedish

authorities had sufficient and relevant reasons for thinking that it

was necessary for the care decision to remain in force. Accordingly

the Commission concludes that this decision can be regarded as

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention in the interests of the child.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant has also complained about the actual

implementation of the care order. In particular he has pointed out

that the social authorities decided to keep his son's address secret

and to refuse to arrange access. With regard to these complaints, the

Commission recalls the judgment of the Regional Administrative Court

from which it appears that the Court ordered the social authorities to

arrange access and that visits have actually taken place. Furthermore

the applicant has not substantiated that the authorities have not

subsequently followed the instructions of the Court. Finally the

Commission also recalls that the Regional Administrative Court decided

that the question of secrecy was of no interest since the applicant

already knew where his son was placed.

In these circumstances, the Commission's examination of this

part of the application has not disclosed any appearance of a breach

of Article 8 (Art. 8) or any other article of the Convention. It

follows that this part of the application is also manifestly

ill-founded in the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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