Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11704/85

by Eva KROL

against Sweden

The European Commission of Human Rights sitting in private

on 7 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

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 13 August 1985

by Eva Krol against Sweden and registered on 21 August 1985 under file

N° 11704/85;

Having regard to:

- the decision by the Commission's Rapporteur of 30 October 1985

to request information from the Government,

- the Government's reply dated 20 November 1985 and the

applicant's comments dated 27 November 1985,

- the first report provided for in Rule 40 of the Rules of

Procedure of the Commission

- the Commission's decision of 3 March 1986 to communicate the

application to the Government for written observations on the

admissibility and merits,

- the Government's written observations dated 15 May 1986, and

the applicant's observations in reply dated 26 June 1986,

- the Government's letters of 18 August and 22 December 1986,

and 30 April and 18 August 1987,

- the second report provided for in Rule 40 of the Rules of

Procedure;

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 applicant is a Polish citizen born in 1950 and resident at

Stockholm. She is represented before the Commission by Mr. Lennart

Hane, a lawyer practising in Stockholm.

On 18 April 1985 the applicant gave birth to a female child,

Maria.

Provisional care order

On 24 April 1985 the Deputy Chairman of the Social District

Council No. 5 (sociala distriktsnämnden nr 5) in Stockholm decided

pursuant to Section 6 of the 1980 Act with Special Provisions on the

Care of Young Persons (lagen med särskilda bestämmelser om vård av

unga) to take the child into care immediately (a provisional care

order).

The decision was made because the Deputy Chairman of the

Social District Council considered that there was a serious risk to

the child's health and development if she were to remain with the

mother in the hospital. It was thought that the applicant was still

suffering from a mental illness and therefore unable to take care of

the child. At this time it had not been established that Mr. G.D. was

the father of the child. In March 1985 the applicant had said that she

was made pregnant by a man who had raped her. In any case it was

considered that Mr. G.D. was not capable of taking care of such a

small child on his own. At that time the mother alone had the legal

custody of the child.

The decision by the Deputy Chairman was confirmed by the

Social District Council on 30 April 1985.

On the day the provisional care order was issued Maria was

moved to another hospital. Two days later she was placed in a

temporary foster home.

Section 21 of the 1980 Act prescribes that a provisional

care order enters into force at once. As soon as the Court has made

a decision on the matter whether the child shall remain in care the

provisional care order is no longer valid. The Court has power to

order that its decision on care shall be enforced at once. If such an

order is not made, the Court's decision cannot be enforced until it

has acquired legal force.

The provisional care order was submitted to the Regional

Administrative Court (länsrätten) of Stockholm for confirmation.

When the Regional Administrative Court examined the case, the

applicant and Maria were represented by their legal representatives,

the applicant by Mrs. Birgitta Alexandersson and Maria by Mr. Ingemar

Drogell. Both are members of the Swedish Bar Association. On

3 May 1985 the Regional Administrative Court confirmed the provisional

care order.

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Stockholm which on 31 May 1985 rejected the appeal.

The applicant appealed to the Supreme Administrative Court

(regeringsrätten) which on 11 July 1985 struck the case off its list

of cases as the Regional Administrative Court had in the meantime

decided that the applicant's child should be taken into care and the

provisional care order was therefore no longer valid.

Decision to deny access

On 14 May 1985 the Social District Council decided to

prohibit any contact between the applicant and her child and not to

disclose the child's whereabouts to the applicant.

On 27 August 1985 the Regional Administrative Court rejected

the applicant's appeal against the Council's decision and gave the

following reasons for its decision:

"On 18 June 1985 the Court ordered that Maria Therese Krol

should be taken into care under Section 1 of the

(1980 Act). Maria Therese is now living in a family home.

The purpose of the care plan is that she may grow up in a

stable and safe environment, that she may have access to the

different kinds of support and assistance which are offered by

society, that she may have a close relationship to a guardian

and access to other grown up people, children and a normal

social network. Finally, she will be staying at a place which

is not to be revealed until her legal custodian has shown that

she is willing to collaborate with the social authorities and

until there is no risk that she endangers the purpose of the

care. From what has emerged when the girl was taken into

care and from the investigation concerning the intended care

the Court finds that the applicant is closely attached to

her cohabitee Mr. G.D. who has acted without self-control

and with threats. These threats could also be aimed at

those who are taking care of the child at present. The

Social District Council has written to the applicant on

several occasions during the summer in order to establish

contact with her and discuss the future of her child. The

applicant does not answer the phone nor does she answer

letters. As the matter of taking the child into care is

still being examined by the Administrative Court of Appeal

and the situation therefore is still very emotionally

infected, the Regional Administrative Court finds that it

cannot be excluded that the care of the child might be

disturbed if the applicant gets permission to see her

daughter and if the whereabouts of the child are revealed.

The Regional Administrative Court therefore concludes that

there are strong reasons for the standpoint that the

custodian shall be prohibited until further notice from

seeing the child and that the whereabouts of the child are

not to be revealed to the mother, in any case not until the

matter of taking the child into care has been finally

settled and the mother and Mr. G.D. have obtained a better

understanding of the actions which have been taken. The

appeal should therefore be rejected."

Care order

On 15 May 1985 the Social District Council applied for the

Regional Administrative Court's decision to take Maria into care. The

Council alleged that the applicant's mental illness and the

conditions in her home involved a considerable risk for the child's

health and development. The Court held an oral hearing in camera.

Witnesses were heard.

On 18 June 1985 the Court granted the Council's application.

In its judgment the Court summarised its reasons as follows:

"From what has emerged in the case it must be concluded

that the applicant is suffering from a mental illness of

long duration but that the prognosis for the illness is good.

However, no reliable statement can be made concerning the

future course of the illness. The applicant has not been

given a clean bill of health but has been conditionally

discharged from the Långbro hospital. From the facts

available it must be concluded that she is strongly dependent

on Mr. G.D. who claims that he is the father of her child and has

shown that he is very negative to the assistance offered.

When considering all aspects of the case the Court therefore

finds that the assistance that can be offered to the

applicant on a voluntary basis must be disregarded.

Even if the applicant agreed at the hearing to obtaining

assistance from a person specially appointed to assist her

(stödperson), provided that this person is not appointed by

the social authorities, the Court does not find this consent

very convincing considering that a similar proposal has been

clearly rejected by Mr. G.D. It is said in the report that

the applicant, after the childbirth, has been aware that she

is suffering from a mental illness and that she is unable to

take care of the child herself but that 'Mr. G.D. is a kind

man and could take care of the child'. Even if the

applicant, as Dr. N has stated, would be able to take care

of the child under optimal conditions it must be borne in

mind that at the present time the applicant and Mr. G.D. are

rejecting the assistance that could be offered to them.

The Court also finds, considering what Mr. G.D. has stated,

that the applicant, due to her health and other social

conditions, also in a long-term perspective will not be able

to take care of her little child without assistance.

The Court therefore finds that there is a danger to the

child's health and development as described in Section 1,

sub-para. 1, unless the child is taken into care. The

application for taking the child into care under the 1980

Act should therefore be granted."

The above judgment did not include any order as to its

immediate enforcement. Consequently the judgment was not enforceable

until it had acquired legal force. However, the child was kept in

care.

The applicant appealed to the Administrative Court of Appeal,

both against the care order and the prohibition of contacts with the

child. On 8 October 1985 the Administrative Court of Appeal decided

to revoke the judgments of the Regional Administrative Court

concerning both the care order and the order relating to contacts

with the child.

The Administrative Court of Appeal had held an oral hearing.

As new witnesses were heard a former chief physician, Mr. R.S., who

also submitted a written statement to the Court, and Mrs. A.W., who is

a midwife. The Court concluded that the facts presented in the Court

showed that the applicant now was healthy and that the illness from

which she had suffered no longer was a cause to take the child into

care, nor were her relations with Mr. G.D.

The Social District Council then appealed to the Supreme

Administrative Court referring to new medical certificates. In the

meantime the child was kept in care.

On 15 November 1985 the Deputy Chairman of the Social District

Council decided to issue a provisional care order relating to the

child pursuant to Section 6 of the 1980 Act.

On 18 November 1985 the Supreme Court refused to grant leave

to appeal.

On 19 November 1985 the Social District Council decided to

terminate the provisional care and, on 20 November 1985, the child

was returned to the applicant.

Following a complaint the Parliamentary Ombudsman (justitie-

ombudsmannen) decided on 8 December 1986 to request the Chief Public

Prosecutor (överåklagaren) of the Prosecuting Authority of Stockholm

to conduct a preliminary criminal investigation both against the

presiding judge of the Regional Administrative Court and the Social

District Council. In his decision the Parliamentary Ombudsman stated

inter alia the following:

"It appears from Section 8 of the 1980 Act that a

provisional care order ceases to be valid when the court

decides on the question of care. This provision, which

entered into force on 1 July 1974, was introduced as a

result of the uncertainty which had prevailed in the

question as to whether a provisional care order continued

to be valid after the court had decided on the question of

care.

The Regional Administrative Court of Stockholm ordered in

its judgment of 18 June 1985 that Maria should be taken into

care pursuant to the 1980 Act. The judgment did not contain

any order as to the immediate enforcement of the order. The

President of the Court has stated that this was the result

of negligence.

...

In its present state, it appears from the investigation that

(the President of the Court) has been negligent since he has

not inserted in the judgment the decision about immediate

enforcement which the Court appears to have agreed on.

The President has also not been careful enough when, during

the examination of the appeal against the decision on the

prohibition of contact, he did not consider that on the

facts of the case such a prohibition could not lawfully be

maintained.

The circumstances are such that there are reasons to institute

a preliminary criminal investigation as regards the question

whether in view of these facts (the President) is guilty of

the offence of negligent exercise of public power.

...

(The Deputy Chairman) of the Social District Council ordered

in a decision of 15 November 1985 ... that Maria should be

taken into care immediately pursuant to Section 6 of the 1980

Act. The decision appears to have been the result of the fact

that the Administrative Court of Appeal decided to quash the

decision on care under the 1980 Act. It can be questioned

whether the decision had any basis in law. Maria has been in

care under this decision until 20 November 1985 when she

returned home.

As a result of the negligence which has occurred in the Social

District Council, as the result of the measures of the

Council, the child has been in care against the will of the

custodian and without legal basis for such care. The

circumstances are such that there is reason to institute a

preliminary criminal investigation concerning negligent exercise

of public power."

Subsequently the Chief Public Prosecutor recommended to the

Parliamentary Ombudsman that the presiding judge of the Regional

Administrative Court as well as the Deputy Chairman of the Social

District Council be informed that they were under suspicion of having

committed offences when dealing with the applicant's case. As regards

the Deputy Chairman the proposed charge is misuse of public power and,

as regards the President of the Court, negligent exercise of public

power.

In a decision of 8 July 1987 the Parliamentary Ombudsman

decided not to institute any criminal proceedings. In the decision

the Ombudsman concluded:

"Maria has been in care from 18 June to 15 November 1985

without legal basis as a result of the fact that the

Regional Administrative Court's omission to order immediate

enforcement in its judgment of 18 June 1987 has not been

observed. There is of course reason to look seriously at

what has happened. In connection with the violation of

justice which has occurred it must, however, be taken into

account that the care, at least until the Administrative

Court of Appeal delivered judgment, has been in accordance

with the intention of the Regional Administrative Court and

has thus objectively not been without foundation."

As regards the omission of the Regional Administrative Court

to order that its judgment should be immediately enforceable the

Ombudsman found it established that the Court had examined the issue

and that it was the Court's intention that the judgment should be

enforceable immediately. However, the President of the Court had by

negligence not included in the judgment an order concerning immediate

enforcement. The Ombudsman considered that this negligence could not

be regarded as gross negligence and there were consequently not

sufficient reasons for instituting criminal proceedings against him.

The Ombudsman further criticised the Social Council for not

having observed that the Regional Administrative Court's judgment did

not include an order as to the immediate enforcement of the judgment.

It was assumed that the Social Council would amend its routines to

avoid such mistakes in the future.

As regards the decision by the Deputy Chairman of the Social

District Council of 15 November 1985 to take Maria into care

immediately under Section 6 of the 1980 Act, the Parliamentary

Ombudsman found that the investigation had shown that new

circumstances - the contents of three medical certificates indicating

inter alia that a return of the child to the applicant would

jeopardise the child's health and development - had occurred after the

judgment of the Administrative Court of Appeal, and that consequently

there were no reasons to consider that the Deputy Chairman had

disregarded the provisions of the 1980 Act when he made the

provisional care order. There were thus no reasons to institute

criminal proceedings against the Deputy Chairman.

COMPLAINTS

1. The applicant alleges that the removal of her new born child,

when she was recovering from a ceasarean operation, was inhuman and

degrading treatment in breach of Article 3 of the Convention.

2. The applicant submits that she has not had a fair and public

hearing for the determination of the question whether the provisional

removal of her child was lawful and just. She alleges a breach of

Article 6 of the Convention.

3. The applicant alleges that the provisional removal of her

child while she was still in hospital is a breach of Article 8 of

the Convention.

4. The applicant, as a practising Catholic, also alleges that the

provisional bereavement of her child is a violation of her freedom of

religion. She has allegedly been prevented from baptising her child as

quickly as prescribed by her faith. The applicant alleges a violation

of Article 9 of the Convention.

5. The applicant moreover alleges that her right in Article 12

of the Convention to form a family has been violated.

6. Finally, she alleges a breach of Article 13 of the Convention.

It is submitted that no remedy was available to her since the Supreme

Administrative Court removed the case from its case-list without

determining the merits.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced with the Commission on

13 August 1985 and registered on 21 August 1985.

By letter which arrived on 28 October 1985, the applicant

requested that the Commission take immediate action in the case in

view of the fact that the Administrative Court of Appeal had revoked

the original care order and the Social District Council nevertheless

did not return the child to the applicant.

On 30 October 1985 the Rapporteur of the Commission decided

pursuant to Rule 40, para. 2, sub-para. a, of the Rules of Procedure

of the Commission to request information from the Government

concerning the procedure before the Supreme Administrative Court and

the reasons for keeping the child in care.

The Government's reply was dated 20 November 1985 and the

applicant's comments were dated 27 November 1985.

On 3 March 1986 the Commission decided to communicate the

application to the Government for written observations on the

admissibility and merits of the application.

The Government's observations were received by letter dated

15 May 1986 and the applicant's observations in reply were dated

26 June 1986. A further letter from the Government was received on

18 August 1986. On 22 December 1986 the Government submitted a

further letter enclosing the decision of the Parliamentary Ombudsman

of 8 December 1986. Further letters from the Government were dated

30 April 1987 and 18 August 1987, the latter enclosing the decision of

the Ombudsman of 8 July 1987.

SUBMISSIONS OF THE PARTIES

A. The Government

1. The Facts

The applicant came to Sweden from Poland in 1980 with her son

Robert, born in 1971. Her marriage with Robert's father in Poland had

been dissolved. In Poland she had been treated for psychiatric

illness in hospitals on a few occasions. Since 1981 she has been in

contact with psychiatrists regularly for psychiatric treatment. From

April to July 1984 she was admitted to a psychiatric hospital for

compulsory treatment. Her son Robert attends a public school close to

Stockholm. The social authorities have been in contact with the

applicant for several years, inter alia to give her financial

assistance. In 1984 the applicant met Mr. G.D. He is 74 years old.

He came to Sweden from Hungary in 1956. He has been married in Sweden

but the marriage was dissolved in 1982. He is Maria's father.

As soon as the social authorities had received information

that the applicant was pregnant they considered the possibility of

taking the child in care. A contact was taken with the chief

physician, Dr. J.K., in order to discuss the applicant's ability to take

care of the child herself. The psychiatrist, Dr. G.N., was also

informed. There was a risk for a psychosis in connection with the

delivery. The social authorities intended to make a close

investigation, since they found that there was a considerable risk to

the health and development of the child if she were to be left with the

applicant and Mr. G.D.

The day after the child was born the applicant was informed

that there was to be an investigation concerning the conditions of the

new-born child. The social authorities suggested that a contact

should be established between the family and a social worker appointed

by the social authorities. The applicant declared that she did not

wish to have any contact with the social authorities. On the same

day Mr. G.D. was arrested for having threatened, among others,

Dr. J.K. Mr. G.D. was also informed about the investigation. He

declared that he was unwilling to collaborate with the social

authorities.

After the care order had been revoked the Social District

Council suggested a meeting with the applicant on 22 October 1985 in

order to plan how the meetings between her and the child should be

arranged pending the decision of the Supreme Administrative Court.

When the day came, the applicant informed the Council that she was

unable to take part in the meeting.

She did not wish to arrange another appointment. Later she

told the Council that she did not want to meet any of its

representatives without her counsel, Mr. Hane, being present. Later

in October a meeting was held and a day was decided when the applicant

was to see her child in Stockholm. The child was brought to Stockholm

by her foster parents from Skåne in the south of Sweden. The

applicant however, did not turn up on this occasion. None of the

parents could be found to see the child.

On 11 December 1985 the child's former foster parents asked

the Parliamentary Ombudsman (justitieombudsmannen) to examine the way

in which the Administrative Court of Appeal had handled the case and

its decision of 8 October 1985. On 14 April 1986 the Ombudsman stated

that he found no reason to take any action against the Administrative

Court of Appeal. However, the Ombudsman subsequently started an

investigation ex officio to examine how the Social District Council

handled the matter.

2. The Admissibility

The applicant has alleged violations of Articles 3, 6, 8, 9, 12

and 13 of the Convention. However, these allegations were made before

the final decision by the Supreme Administrative Court and the return

of the child to her parents. In his letter to the Commission of 27

November 1985 the applicant's counsel seems to concentrate on the

effects of the decision to take the child into immediate care.

The Government have no objection against the application with

regard to the six months' rule. It thus remains to be examined whether

the complaint falls within the scope of the Convention, whether the

applicant has exhausted domestic remedies or whether the application

should be rejected as being manifestly ill-founded.

2.1 Article 3 of the Convention

With respect to the complaint under Article 3 in relation to

the decision to take the child immediately into care domestic

remedies could be said to be exhausted. That decision was a

preliminary measure which became surpassed by the judgment of the

Regional Administrative Court of 18 June 1985. This also explains why

the Supreme Administrative Court struck the case off its list.

However, since the Parliamentary Ombudsman has started an

investigation of the measures taken by the Social District Council it

may be that further actions will be taken. The Government must

therefore make an objection with reference to the domestic remedies'

rule.

This objection applies even more in case the alleged violation

of Article 3 is related to the other meaures taken by the Swedish

authorities.

In case the Commission does not share this view, the

Government maintain that the complaint is manifestly ill-founded

(cf. below).

2.2 Article 6 of the Convention

The complaint with respect to Article 6 is based on the

allegation that "no fair and public hearing has been held for deciding

on the legality and justness of the provisional bereavement of the

child at the time when the mother was in the hospital".

The Government have in other cases before the Commission

questioned whether decisions on care fall within the scope of Article

6 of the Convention. Even if the Commission should not share this

view, the present complaint falls outside the scope of the Convention.

The complaint refers to preliminary measures pending a court ruling

on an application to submit the child to care under the 1980 Act.

However, Article 6 does not require that the guarantees laid down in

that Article should be observed in all details also with respect to

preliminary or provisional measures taken within the scope of a more

overriding matter.

Even if the Commission should consider that the preliminary

matter decided by the competent authorities concerned the applicant's

civil rights, the question remains whether the decision concerned a

"determination" of these civil rights. The Government are of the

opinion - in case the matter concerns civil rights at all - that a

"determination" was not made through the preliminary measure taken by

the Social District Council or the Regional Administrative Court on

3 May 1985. If a "determination" was made at all, this determination

was made by the Regional Administrative Court after a hearing on

18 June 1985.

The Government are thus of the opinion that the complaint

should be rejected as being incompatible ratione materiae with the

provisions of the Convention.

2.3 Article 8 of the Convention

The Government maintain that domestic remedies have not

been exhausted. Reference is made to the investigation by the

Parliamentary Ombudsman and to the fact that the applicant has not

tried to have the measures taken by the Social District Council

before 8 October 1985 or after that date examined by competent organs

with a view to assessing whether the measures taken amount to misuse

of public power or negligent exercise of public power. It seems as if

the counsel for the applicant is aware of this, since he assumes that

the possibilities for mother and child to be granted compensation by

Swedish courts are very small.

Under all circumstances the Government maintain that the

complaint under Article 8 is manifestly ill-founded (see below).

2.4 Article 9 of the Convention

The Government contend that domestic remedies are not

exhausted, since the matters under Article 9 - as far as the

Government have been able to establish - were never raised before the

Swedish authorities. In all events the complaint must be manifestly

ill-founded.

2.5 Article 12 of the Convention

In the Government's opinion no separate issue arises under

Article 12. The applicant has not been prevented from forming a

family. A decision to take a child into care is in accordance with

the Strasbourg case-law considered to fall within the scope of

Article 8. Since no other information is submitted to substantiate

the applicant's allegation, the complaint under Article 12 must be

considered manifestly ill-founded.

2.6 Article 13 of the Convention

It appears that the complaint under Article 13 is based upon

the fact that the Supreme Administrative Court struck from its list

the case concerning the preliminary taking of the child into care.

However, this matter was by then consumed by the superseding decision

by the Regional Administrative Court to take the child into care. The

complaint should therefore be rejected as being incompatible ratione

materiae with the provisions of the Convention.

In any case the applicant did in fact have a remedy, since the

provisional decision was examined both by the Regional Administrative

Court and the Administrative Court of Appeal. This should satisfy the

requirements of Article 13, in particular taking into consideration

that the decision appealed against was a preliminary measure.

Alternatively, this part of the application should therefore be

rejected as manifestly ill-founded.

3. The Merits

3.1 Article 3 of the Convention

The immediate decision as well as the judgment of the Regional

Administrative Court were made in order to prevent dangers to the

health and development of the child as prescribed in the 1980

Act. The applicant's illness and behaviour gave the social

authorities reason to believe that such a danger might occur, if the

applicant left the hospital with the child. She had in fact herself at

that stage questioned her own capacity to look after the child but

declared that Mr. G.D. had this capacity. It appears that it was at

that time impossible for the social authorities to establish a

trustful way of collaboration in order to assist the applicant. Under

these circumstances the Government maintain that the decision to take

the child into care immediately was neither inhuman nor degrading

treatment within the meaning of Article 3 of the Convention.

3.2 Article 6 of the Convention

The Government contend that this part of the application is

inadmissible and abstain at the present stage of the proceedings from

further comments.

3.3 Article 8 of the Convention

The Commission has constantly held that decisions to take

children away from their parents, placing them under care, is an

interference with Article 8 of the Convention. But in all previous

cases the Commission also held that the circumstances of the case, the

facts about the children's situation, and the investigations showed

that the authorities' decisions were justified under paragraph 2 of

Article 8, by the need to care for the health of the children.

Against this legal background, and taking note of the facts

regarding the situation of the new-born child and of the reasons as

stated by the Regional Administrative Court, the Government maintain

that the actions taken by the Social District Council in May 1985 and

the Regional Administrative Court on 18 June 1985 were justified and

in accordance with the Convention as well as with Swedish law.

The Government find it rather obvious that also when a court's

judgment or decision on matters of taking a child into care is

reversed by a higher court, this does not mean that the decision or

judgment of the lower court has been in violation of the Convention.

These questions are often very difficult to decide and it is natural

that different opinions can exist. In the present case it is obvious

that the matter was of a complex nature. To illustrate this the

Government refer to the fact that Dr. N in a written statement on

24 October 1985 - a statement to which the Social District Council

referred in appealing against the judgment of the Administrative Court

of Appeal - said with reference to the applicant that it was so

difficult to assess her ability to look after a child that one assumes

responsibility for the child being handed over to the mother unless

guarantees were given that the authorities would make continuous

observations concerning the child's conditions.

As far as the denial of contacts between the applicant and her

child is concerned the Government note that the original decision on

this matter was taken by the Social District Council on 14 May 1985.

This decision was upheld by the Regional Administrative Court on 27

August 1985 but quashed by the Administrative Court of Appeal on 8

October 1985. The decision was thus valid for almost five months.

In the Government's opinion the decision in question was based

on the same facts as the decision to take the child into care. The

authorities feared that the applicant and, indeed, Mr. G.D. could take

actions that would seriously jeopardise the aim of the care. The

Government also emphasise that the Regional Administrative Court

expressly stated that the whereabouts of the child could not be

revealed to the mother "in any case not until the matter of taking the

child into care has been finally settled ... ".

In view of the circumstances the Government maintain that the

decision to deny contacts between the applicant and her child and the

decision to take the child into care should be seen in the same

context and - from the Regional Administrative Court's point of view -

as quite logical. As it turned out, the Administrative Court of

Appeal did not share the opinion of the lower court, but this is

another matter.

With reference to these observations the Government submit

that the measures taken were in conformity with Article 8 of the

Convention.

Since the Regional Administrative Court did not state that its

judgment should be enforced immediately it can be questioned whether

the keeping of the child in care after 18 June 1985 was in accordance

with Swedish law. If the Social District Council from that date or

from the date of the judgment of the Administrative Court of Appeal,

ie. 8 October 1985, has acted contrary to the Swedish law it cannot be

said that the Convention has been violated until an internal

investigation is completed and all domestic remedies have been

exhausted. As said before this is not the case.

The Government add the following. The interrelation between

the rules on care and the rules on provisional care orders has caused

some confusion. Amendments have been made and a commission's proposal

for further amendments is considered within the Ministry for Health

and Social Welfare. Even if an investigation leads to the conclusion

that in the present case the Social District Council has acted

contrary to the law, this does not automatically permit the conclusion

that the requirement "in accordance with the law" in Article 8 para. 2

is not fulfilled. Member States have a considerable margin of

appreciation in designing their domestic system.

To illustrate this idea, the Government give the

following hypothetical example. It should be possible under the

Convention to prescribe e.g. that a child living with foster parents

under care should stay with them until a judgment restoring the

custody of the natural parents gains legal force in order to avoid

the risk that the child - after a possible reversal of the judgment by

a higher court - is sent back from the parents to the foster home.

Under such circumstances the expression "in accordance with the law"

should be recognised in a broader perspective, while the control of

the details of the system should be left to the Member States.

3.4 Article 9 of the Convention

The Government maintain that there is no violation of

Article 9. The facts presented by the applicant are not sufficient to

tell what efforts she has made to have the child baptized or in what way

this has been prevented by the authorities. In fact, the files of the

case do not hold any information suggesting that questions related to

the rights under Article 9 were ever raised by the applicant.

3.5 Article 12 of the Convention

The Government contend that there is no violation of

Article 12.

3.6 Article 13 of the Convention

The Government contend that this part of the application should

be rejected as manifestly ill-founded.

4. Conclusions

The Government conclude:

- that the application is inadmissible for falling outside the scope

of the Convention (Articles 6 and 13), alternatively for failure to

observe the domestic remedies rule (Articles 3, 8 and 9),

alternatively for being manifestly ill-founded, and

- that there is no violation of the Convention.

B. The Applicant

1. The Facts

The applicant points out that when the child was taken away

from her on 24 April 1985 there was a factual separation between them

due to the fact that the applicant did not know where her child was

kept. This was so in spite of the fact that it was not until 14 May

1985 that the Social District Council decided to prevent any contact

between the applicant and her child. Such a decision had in practice

been applied as from 24 April.

The applicant tried as much as possible to hide her pregnancy

from Dr. K since she feared that the child would be taken away from

her. This fear appears to be justified since already before the birth

of the child the staff of the social authorities had decided to take

it into care. Dr. G.N. was thus appointed behind the back of the

applicant as a psychiatric consultant.

In their testimonies before both the Regional Administrative

Court and the Administrative Court of Appeal Dr. K and Dr. G.N.

stated that no-one had been asked or consulted as to the question

whether the child should be taken away from the mother but they were

only told this when the measures had been implemented by the social

workers.

During her first six days together with the applicant and the

two following days at the children's hospital there were no requests

as to the need for an investigation of the physical status of the

newborn child. It is true that Mr. G.D., the child's father, was

arrested on the same day as the child was born as a result of his

expressing severe dissatisfaction with the doctor K. However,

subsequently, the Svea Court of Appeal (hovrätt) has acquitted Mr.

G.D. of the alleged criminal offence.

When the Chairman of the Social District Council had considered

that there was a serious risk for the child's health this was an

allegation which had not been investigated and which the mother had

had no opportunity to refute. According to Dr. G.N. she was healthy

during the whole time he was in contact with her, that is to say during

the birth and also for a long time thereafter.

The fact that the lawyer, Mr. Drogell, as an official counsel

for the newly born child consented to the decision about immediate care

shows how treacherous the Swedish system is with a lawyer appointed

for the child. Mr. Drogell has for obvious reasons had no contacts or

connections with the newly born child but rather appears as a hostile

lawyer towards the parents allied with their counter party. The unit

child-parent is thereby broken.

As regards the Regional Administrative Court's judgment of 18

June 1985 the applicant invokes a medical certificate dated 2 June

1985 issued by Dr. R. S. His final assessment is that there are

insufficient reasons for separating the applicant from her child.

In the reasons of the Regional Administrative Court this is not

mentioned. Neither is the fact that none of the two doctors heard by

the Regional Administrative Court wanted to disqualify the applicant

as custodian as a result of her mental illness.

The decision of 15 November 1985 of the Deputy Chairman of the

Social District Board about immediate care of the child shows that the

parents are without legal rights. It also shows how easily a judgment

by a court can be set aside without anything having happened in the

meantime apart from the dissatisfaction of the authorities with the

judgment of the court.

2. The Admissibility

2.1 Article 3 of the Convention

The taking into care of the child occurred when the mother and

the child were in the hospital. There were other alternative ways of

helping and giving care to the mother and the child if this was

necessary. The applicant had no chance to defend herself and her

child. The examination of the Parliamentary Ombudsman is in no way a

remedy for the applicant. The preliminary character of the decision

can in no way change the fact that it concerns a small baby who

completely and unnecessarily was deprived of the care of her mother

during the first seven months of her life and who was prevented from

being breast fed and thereby became ill and was harmed.

What the Government have submitted rather shows that other

babies can run exactly the same risks as the applicant's child within

the framework of the Swedish hospitals.

The importance of breast feeding for the newly born child, the

hormonial relations between mother and child and the system of signals

which is inherent therein must mean that every day or at least

every week not to say every month during which a newly born child is

separated from his or her natural mother unnecessarily is really an

extinction of civil rights. The unnecessary and protracted separation

between the mother and the child cannot be explained.

The fact that the mother and the child have small, not to say

very small, possibilities to receive compensation by turning to the

Swedish Courts does not have anything to do with the question whether

there is an abuse of power or a careless misuse of authority but

rather with the incredibly tolerant borders to the advantage of the

administration as practised in Sweden and in combination with the

possibilities of avoiding compensation through adjustments and in

other ways.

2.2 Article 12 of the Convention

The prejudice to Mr. G.D. not least as a result of his

appearance and linguistic problem has involved considerable

aggressivity towards him both from the social authorities and from the

court. This is a violation of Article 12 as well as Article 8 of the

Convention.

3. The Merits

3.1 Article 3 of the Convention

The applicant was healthy and happy about her pregnancy during

the whole course of the pregnancy. Nothing remarkable occurred during

the delivery and during the time in hospital up until the time the

child was taken away from her. There was no reason to be anxious.

The applicant needed no help in order to take care of her child, a

fact which has been shown after the child was returned to her in

November and which Dr. S. pointed out in his statement of June

1985.

3.2 Article 8 of the Convention

The applicant finds it strange and repellent to invoke the

child's need of care for her health in the case where one has

deliberately taken the risk of damaging the child and actually also

done so. The applicant again points out that the child and mother

were in perfect condition at the delivery and when the child was taken

away. The mother has been healthy since then and is so still whereas

the child's unhealthy status appears to be the result of the harm

caused to her by the social authorities. If the value of human rights

and the right for a newly born child to be together with her mother

had been respected in Sweden there would of course never have been a

case, if the child and the mother had been left alone. There are thus

no complications in the case which are supposed to make this case a

complex one.

It is obvious that the Social District Council, after

8 October 1985, acted in conflict with the Swedish law. The legal

conditions for requesting leave to appeal (interest from a precedent

point of view or gross procedural errors as well as grounds for

re-opening the proceedings) were lacking. The intention was to

obstruct the return of the child until further action could be set in

motion in order to avoid a reunification of the family. That is the

reason for the decision of the Chairman on a new care order of

15 November 1985, Dr. N's statement of 24 October 1985 and the

certificate of 23 October 1985 from the deputy chief doctor Mr. M.V.

in which it is stressed that it is extremely inappropriate to separate

the child from the foster mother in order to place it with the natural

parents. Apparently both the legal provisions and the decisions of the

courts have been set aside in a way which is devastating to human

rights. And it is in no way an unfortunate expression of a particular

precision in domestic law. The Government's example with the child in

the foster home is misleading, since the Court of Appeal always has

the right to immediately and temporarily stay the enforcement of a

judgment of a lower court if, for instance, it was feared that a

child would unnecessarily be moved from the foster home to the natural

home and from there back again to the foster home.

In the applicant's view the fact that the child was returned

to her mother so totally surprisingly and for Swedish circumstances

remarkably quickly is the exclusive result of the intervention of the

Commission in this matter. The applicant refers to the statement of

19 November 1985 by the competent social workers.

THE LAW

1. The applicant has complained that the taking into and keeping

in care of her child is a violation of Articles 3 and 8 (Art. 3, 8) of the

Convention. She has also referred to Articles 9 and 12 (Art. 9, 12) of the

Convention.

The Commission, in its examination of the application, has

first had regard to the development of the applicant's case before the

domestic courts after the introduction of the application on

13 August 1985. It notes that, on 8 October 1985, the Administrative

Court of Appeal revoked the care order and the order not to permit any

contacts between the applicant and her child. The Social District

Court then appealed to the Supreme Administrative Court and kept the

child in care. But on 18 November 1985 the Supreme Administrative

Court refused leave to appeal and on 20 November 1985 the child was

returned to her mother, the applicant.

The Commission observes that the applicant thus finally won

her case by making use of the remedies at her disposal in Sweden. But

it finds that she can still claim to be a "victim", in the sense of

Article 25 (Art; 25) of the Convention, of the acts complained of, in that she

is still affected and aggrieved by the prolonged separation from her

daughter in the past.

2. The Government have objected to the admissibility of the

applicant's complaints on the ground that she has not exhausted

domestic remedies as required by Article 26 (Art. 26) of the Convention.

The Commission considers that the principal issue in the

present case arises under Article 8 (Art. 8) of the Convention, which reads:

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

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

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

prevention of disorder or crime, for the protection of

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

freedoms of others."

The applicant's child was in care from 24 April to

20 November 1985. The provisional care order which was issued on

24 April 1985 was immediately enforceable according to Section 21 of

the 1980 Act. According to Section 8 of the Act the provisional care

order was valid until the Regional Administrative Court delivered its

judgment on 18 June 1985. The judgment of this Court was quashed by

the Administrative Court of Appeal on 8 October 1985.

The taking into care of the child constituted an interference

with the applicant's right to respect for her family life as protected by

Article 8 para. 1 (Art. 8-1) of the Convention. The question which arises is

whether the taking and keeping of the child in care was justified under Article

8 para. 2 (Art. 8-2), in this context the first issue is whether the keeping of

the child in care after 18 June 1985 was "in accordance with the law" as

required by Article 8 para. 2 (Art. 8-2).

In this respect the Government, with reference to Article 26

(Art. 26) of the Convention, have referred to the investigation initiated by the

Parliamentary Ombudsman and to the fact that the applicant has not

taken any measures with a view to having assessed by the competent

organs whether the Social District Council's measures amount to misuse

of public power or negligent exercise of public power.

The Commission notes that the Parliamentary Ombudsman, on

his own motion, started an investigation of the matter. He asked

the public prosecutor to make a first examination as to whether there

were reasons to institute criminal proceedings against the Deputy

Chairman of the Social District Council and the President of the

Regional Administrative Court. After having concluded his examination

the public prosecutor recommended to the Ombudsman that criminal

proceedings be instituted against the Deputy Chairman on the charge of

misuse of public power, and against the President of the Court on the

charge of negligent exercise of public power. On 8 July 1987 the

Parliamentary Ombudsman decided not to institute any criminal

proceedings.

In these circumstances, the Commission considers that, even if

it would still be open to the applicant to institute proceedings against

the Deputy Chairman of the Social Council or the judge of the Regional

Administrative Court, such an action cannot be regarded as a remedy

within the meaning of Article 26 (Art. 26) of the Convention for the alleged

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

The Government have not indicated any other effective remedy,

within the meaning of Article 26 (Art. 26) of the Convention. Consequently in

this respect the application cannot be rejected for failure to exhaust

domestic remedies.

3. The Government have also submitted that the application is

inadmissible as being manifestly ill-founded within the meaning of

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

The Commission considers that the question whether the

keeping of the child in care after 18 June 1985 was justified under

the terms of Article 8 para. 2 (Art. 8-2) of the Convention and in particular

whether it was "in accordance with the law" raises issues of fact and

law which are of such complexity that their determination should

depend upon an examination of the merits. This part of the

application is therefore not manifestly ill-founded and must be

declared admissible, no other ground for declaring it inadmissible

having been established.

4. The applicant has also complained that she was not given a fair

and public hearing in respect of the provisional care order and that

Article 6 (Art. 6) of the Convention has accordingly been violated.

The Commission observes that, even assuming that Article 6 (Art. 6) of

the Convention was applicable to the determination of the provisional

care order, the applicant appealed to the Regional Administrative

Court and to the Administrative Court of Appeal in respect of the

provisional care order. The Commission finds no appearance of a

violation of Article 6 (Art. 6) of the Convention in the proceedings before

these Courts.

It follows that this complaint is manifestly ill-founded

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

5. The applicant has finally complained that she had no effective

remedy in respect of the provisional care order since the Supreme

Administrative Court struck the case off its list without examining the

merits. She alleges a violation of Article 13 (Art. 13) of the Convention.

The Commission observes that the applicant could appeal

against the provisional care order first to the Regional

Administrative Court and then to the Administrative Court of Appeal. These

remedies were effective remedies within the meaning of Article 13 (Art. 13) of

the Convention. Article 13 (Art. 13) did not require a further remedy to the

Supreme Administrative Court.

It follows that this complaint is manifestly ill-founded

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

For these reasons, the Commission

DECLARES INADMISSIBLE the procedural complaints under

Articles 6 and 13 (Art. 6, 13) of the Convention,

DECLARES ADMISSIBLE, without prejudging the merits, the

remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

KROL v. SWEDEN

KROL v. SWEDEN

LEXI