Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12495/86

by Benny JONSSON

against Sweden

The European Commission of Human Rights sitting in private

on 7 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

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 14 September

1986 by Benny Jonsson against Sweden and registered on 24 October 1986

under file N° 12495/86;

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, born in 1952. He resides

at Märsta, Sweden.

The applicant is the father of a boy, born in 1977. The

applicant was never married to the mother and has never had custody

over the child. The relationship between the mother and the applicant

broke up before the child was born and after his birth problems arose

as to the applicant's access to his son. He instituted proceedings

before the District Court (tingsrätt) of Stockholm on 11 September

1978 in order to obtain access to his son. He also requested the

District Court to grant access on an interim basis until the Court had

settled the dispute. On 20 December 1978 the District Court rejected

the request for interim measures and decided to adjourn the examination

of the case in order to obtain from the social authorities information

as to the child's situation.

In their report of 8 May 1980 the social authorities expressed

the view that there would be no reason to refuse the applicant access

to his son. However, due to the problems between the parents

themselves, it was advised that such access should, for a certain

period of time, be supervised by a third person.

On the basis of this report the parties reached a settlement

by which the applicant obtained access to his son during periods set

out in the settlement. On 24 September 1980 the District Court

endorsed the settlement on the terms agreed upon by the parties.

It appears that the settlement did not solve the problems and

both parties apparently blamed each other for violating the agreement

reached. On 5 October 1981 the mother instituted proceedings in the

District Court in order to have the applicant's access to his son

reduced. During the Court's preliminary examination of the case the

parties reached a new settlement in which specific access rights were

set out. On request of the parties the settlement was endorsed by the

District Court on 19 November 1981.

The problems between the parents had not, however, ceased to

exist. The applicant maintains that he was effectively barred from

seeing his son, for which reason he instituted enforcement proceedings

in the County Administrative Court (länsrätten) of Stockholm on

18 February 1982 in order to make the mother comply with the settlement

of 19 November 1981. However, during a hearing in court on 22 April

1982 the parties reached a new settlement which was endorsed by the

County Administrative Court on 9 July 1982. The Court accordingly

dismissed the case.

This third settlement apparently did not solve the problems

either. On 20 June 1983 the applicant again instituted enforcement

proceedings in the County Administrative Court in order to make the

mother comply with the settlement of 19 November 1981. The County

Administrative Court, however, decided to adjourn the examination of

the case since the mother in the meantime had instituted proceedings

in the District Court in order to terminate the applicant's access to

the child.

On 28 September 1983 the District Court decided on an interim

basis to terminate the applicant's access to his son. It was

furthermore decided to obtain a report from the Social District

Council No. 3 (sociala distriktsnämnden 3) in Södertälje as to the

applicant's access rights to his son.

In its report which was submitted to the District Court on 24

May 1985 the Social Council recommended that the District Court should

terminate the applicant's access to the child because such access

would not be in the interest of the child. In its report the Social

Council concluded inter alia:

"From the examination it appears that (the child's) parents

separated before he was born and after having known each

other for a short period. According to (the mother) they

separated due to (the applicant's) need to control her.

Since he furthermore maltreated her she decided to leave him

despite the fact that she was expecting their child.

According to (the applicant) it was the mother's parents who

ruined their relationship. When (the applicant), at the

time of the child's birth, threatened to kill (the mother),

she was advised by two social workers whom she had contacted

to go and live with her parents for a while. In December

1978 (the applicant) applied to the District Court of

Stockholm for access to his son. An examination was carried

out by the Family Rights Section (Familjerättssektionen) in

Stockholm. The person in charge of the examination got the

impression that both parties were locked in their views and

it was difficult to influence them. It was questioned

whether they could co-operate. It was questioned whether

the father could cope with meeting the boy alone and the

father's proposals, to pick up the boy outside a specific

place, indicated an unrealistic view of children and their

needs. The father had clearly stated that he could not

accept the presence of a third person when he met with his

son.

Having regard to the negative views which the father had of

the mother and his wish that the child should be placed in a

foster home there was a risk that (the child) would be left

in a difficult situation when together with his father. The

person in charge of the examination also questioned whether

the mother had the psychical strength to cope with the

burdens a specific access right definitely would entail. It

was therefore suggested that the Social Council of Stockholm

should propose to the District Court that it would not be in

the interest of (the child) that the father got an access

right. However, the Social Council of Stockholm decided on 8

May 1980 to propose that (the applicant) should have access

to (the child) supervised by a third person. Subsequently

the question of access has been dealt with by the District

Court of Stockholm in 1980 and 1981 in the form of

settlements. The County Administrative Court of Stockholm

has in two cases decided that settlement negotiations should

take place for which reason such attempts have been made by

a psychologist in 1981 and 1982. Two settlements have been

obtained by the County Administrative Court, one in 1981 and

the other in 1982. In June 1983 (the applicant) instituted

enforcement proceedings in the County Administrative Court

which decided to adjourn the examination due to the fact

that (the mother) had requested the District Court of

Södertälje to terminate (the applicant's) access rights.

(The applicant) had disregarded the attempts of co-operation

which had been made in connection with all settlements and

he has not used the possibilities he has had to meet (the

child). Instead he has turned to the County Administrative

Court with enforcement proceedings. Through our Family

Rights Section (the applicant) got the opportunity, in

the autumn of 1982, to meet his son in his home. (The

applicant), however, behaved badly and was rude to the

mother and to the persons from the social authorities. It

appears from the examination that it is not possible to

co-operate with (the applicant), either for (the mother) or

for the social authorities. The question of access does not

concern a dispute between the parents but a problem which

cannot be solved due to (the applicant's) own behaviour.

(The child) has no relationship with his natural father and

it has not been possible to build up any relationship. The

circumstances which were present already in 1980 when the

examination was made by the Family Rights Section in

Stockholm are still present and are more or less unchanged.

(The applicant) has no understanding of children's needs and

he continues to disregard (the child's) mother. (The

mother) and her family do not have the strength any longer

to accept further attempts of co-operation and settlements.

If there are reasons indicating that a child may suffer when

together with a parent who does not have custody, no access

shall be granted. The examination has shown that (the

applicant's) access to his child would involve a risk in

particular for his psychic development."

As required by Chapter 6 Section 15 of the Swedish Parental

Code (föräldrabalken) the District Court of Södertälje continued its

examination of the case on 4 November 1985 on the basis of both

parties' submissions as well as the statements of four witnesses

proposed by the applicant and the report mentioned above. The

District Court's majority decided in its judgment of the same day

to terminate the applicant's access to his son. In its judgment

the majority wrote:

"A dispute between the holder of the custody and a parent

who does not have custody concerning access to the child

shall be examined only having the best interests of the

child in mind. As a general starting point it is clear that

a child has a need of contact with both his parents and that

the best interest of the child therefore is encouraged by an

access right. However, in case the child may suffer

physically or psychically when together with a parent such

access shall not be granted.

The examination of the case, in particular of the statements

submitted by the witnesses, discloses that (the applicant)

lives under suitable conditions and that his relationship

with (his son) is good. This does not mean, however, that it

is as such in the interest of (the child) that (the applicant)

shall receive an access right to him.

(The child) is now eight years old. He has only met his

father a few times. A reason for the fact that proper

access has not been possible may be that (the applicant),

for more or less well-founded reasons, has considered

that (the mother) and the social authorities have opposed

him and that he therefore has acted in a way which has made

the co-operation and the access question even more

difficult. Irrespective of how this has actually developed

it can now be established that the requirements for a

valuable association with (the applicant) are not at hand.

After several years of disputes (the applicant) has met (his

son) twice recently. According to the examination of this

case it appears that in both instances conflicts, which must

be considered to be to the detriment of the child, have

appeared due to the applicant's behaviour. The tense

relationship between (the applicant) and (the mother) must

be considered as influencing the child in a disturbing way

if he should now also be together with the father.

It is possible that (the applicant) can get together with

his son and create a good relationship between them in the

future, when (the child) takes the initiative. Due to the

above problems, however, the District Court finds that for

the time being, and in accordance with the recommendations

of the Social District Council, it is not in the interest of

(the child) that (the applicant) should get access to him."

The minority of the District Court stated the following:

"(The applicant) lives under suitable conditions and he

should not therefore as such be considered as being unable

to be together with his son.

It is true that the relationship between (the applicant) on

the one hand and (the mother) and (the child) on the other

is problematic for the time being. An access right for (the

applicant) may therefore be feared to influence (the child)

in a negative way. This, however, should be seen in the

light of the interest in obtaining a good relationship

between father and son in the future. Such could be

encouraged by not breaking the contact totally. When

considering these two, to a certain extent, contradictory

interests, we find that the latter weighs more heavily. We

consider therefore that (the applicant) should have the

opportunity of meeting his son one Saturday afternoon per

month between 13.00 and 17.00 hours in the presence of a

third person to be selected by (the mother)."

The applicant appealed against this judgment to the Svea Court

of Appeal (Svea hovrätt) on 22 November 1985. However, on 25 April

1986 the Court of Appeal upheld the judgment of the District Court.

The applicant's request for leave to appeal to the Supreme Court

(Högsta domstolen) was subsequently rejected by the Supreme Court

on 9 July 1986.

COMPLAINTS

The applicant submits that the courts have refused access due

to partiality and due to the fact that they have relied on a very

partial social report without taking into consideration his views or

those of the child. Their conclusions are accordingly wrong. He

refers in this respect to Article 6 of the Convention.

The applicant furthermore invokes Article 5 of the Convention.

He submits that, under Swedish law, the person who has custody over a

child has a duty to see to it that the child's need for contact with

the parent who does not have custody is taken into consideration as

far as possible. In case this does not happen the courts must decide,

in the interest of the child, on the question of access. The

applicant maintains that a similar right is secured to him under the

Convention and he finds that the interest of the child must be

interpreted so as to give child and parent a guaranteed right to

contact with each other.

THE LAW

1. The applicant has complained that the courts in question

ignored the evidence submitted by him and the witnesses heard on his

behalf. He thus alleges that the courts were partial and that their

decisions were wrong in that preference was given to evidence which in

his opinion showed bias against him. He relies in this respect on

Article 6 (Art. 6) of the Convention.

With regard to the judicial decisions of which the

applicant complains, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

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

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

constant case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236 ; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that the applicant also complains that the courts

were not impartial within the meaning of Article 6 (Art. 6) of the Convention.

In this respect the Commission finds that the competent courts made a

thorough examination of the issue of access and that they reached

their conclusion on the basis of what they considered to be in the

best interest of the child, without ignoring the applicant's interest

in maintaining contact with his child. The Commission considers that

the reasons on which the courts based their decisions do not disclose

in any way that they were partial or that they disregarded the interests

of the applicant in an unfair or arbitrary manner.

The Commission therefore concludes that the applicant's

allegations of a violation of the principle of impartiality of the

courts as set out in Article 6 (Art. 6) of the Convention are manifestly

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

Convention.

2. The applicant has also complained that his right to contact

with or access to his child, which he maintains is a right secured to

him by the Convention, has been interfered with in an unjustified

manner. The Commission has considered this complaint under Article 8

(Art. 8) of the Convention which 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."

In accordance with the Commission's established case-law the

right to respect for family life within the meaning of Article 8 (Art. 8) of

the Convention includes the right of a divorced parent who is deprived

of custody following the break up of the marriage to have access or

contact with his child. The State may not interfere with the exercise

of that right otherwise than in accordance with the conditions set out in

Article 8 para. 2 (Art. 8-2) (cf. Hendriks v. the Netherlands, Comm. Report

8.3.82, para. 94, D.R. 29 p. 14).

The Commission furthermore considers that the natural link

between a parent and a child is of fundamental importance and that,

where the actual family life in the sense of living together has come

to an end, continued contact between them is desirable and should in

principle remain possible. Respect for family life within the meaning

of Article 8 (Art. 8) thus implies that this contact should not be denied

unless there are strong reasons which justify such an interference.

Turning to the facts of this case the Commission recalls that

it does not concern a divorced parent. It does, however, concern a

case in which there had been actual family life in the sense that the

unmarried parents were living together, although it had come to an end

before the child was born. In these circumstances, where, furthermore,

the question of paternity is not in dispute, the Commission accepts

that the decision of the courts to refuse the natural father's request

for visiting arrangements interfered with the exercise of his right to

respect for his family life under Article 8 (Art. 8) of the Convention. It

must therefore examine whether the interference complained of was justified

under Article 8 para. 2 (Art. 8-2) of the Convention, i.e. whether the

interference was in accordance with the law and had an aim which was legitimate

and necessary in a democratic society.

The Commission observes that the decisions taken by the

Swedish courts were based on Chapter 6 Section 15 of the Swedish

Parental Code. Under this provision the court is required to take a

decision as to the question of access when the holder of the custody

rights refuses a request for access. The interference was thus in accordance

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

Convention.

As regards the legitimate aim the Commission has constantly

held that in assessing the question of whether or not the refusal of

the right of access to the non-custodial parent was in conformity with

Article 8 (Art. 8) of the Convention, the interests of the child predominate.

The interference therefore has a legitimate aim insofar as it has

been made for the protection of the child's interests (cf. No.7911/77,

Dec. 12.12.77, D.R. 12 p. 192). There can be no doubt that the

interference in the present case with the applicant's right under

Article 8 (Art. 8) had this purpose. What remains to be considered is

therefore whether the interference was necessary in a democratic

society for the protection of the child's interest.

In examining whether the interference was necessary the

Commission does not intend to substitute its own judgment for that of

the competent domestic court. Its function is to assess from the

point of view of Article 8 (Art. 8) the decision which the court took in the

exercise of its discretionary power.

It is an important function of the law in a democratic society

to provide safeguards in order to protect children from harm and

mental suffering resulting, for instance, from the breakup of the

relationship of their parents. In such cases this purpose may be

achieved by keeping the child away from a situation which could be

detrimental to his or her mental development owing to the existence of

a loyalty conflict vis à vis one or both of the parents and the

inevitable parental pressure put on him or her causing feelings of

insecurity and distress (cf. Hendriks v. the Netherlands mentioned

above, para. 120).

In the present case the Commission finds that the competent

national courts carefully considered the applicant's request for access

to his son. They came to the conclusion, however, that, given the

difficulties between the parents, it was important for the child's

well-being to be kept out of these difficulties. In these

circumstances the Commission is satisfied that the interference

complained of, namely the refusal of the applicant's request for a

visiting arrangement, was required by the interests of the child

and that the courts, when so deciding, did not go beyond their

discretionary power.

The Commission has not overlooked the applicant's situation.

The absence of one's child may cause considerable suffering to the

non-custodial parent. However, where, as in the present case, there

is a serious conflict between the interests of the child and one of

its parents which can only be resolved to the disadvantage of one of

them, the interest of the child must under Article 8 (Art. 8) prevail.

The Commission concludes therefore that the interference with

the applicant's right to respect for his family life, being

proportionate to the legitimate aim pursued, was justified under

Article 8 para. 2 (Art. 8-2) as being necessary in a democratic society for the

protection of the rights and freedoms of another person, namely the

child concerned.

It follows that this part of the application is also manifestly

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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JONSSON v. SWEDEN

JONSSON v. SWEDEN

LEXI