ERIKSSON v. SWEDEN
Doc ref: 11373/85 • ECHR ID: 001-378
Document date: May 11, 1987
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AS TO THE ADMISSIBILITY OF
Application No. 11373/85
by Cecilia and Lisa ERIKSSON
against Sweden
The European Commission of Human Rights sitting in private
on 11 May 1987, the following members being present:
MM. J. A. FROWEIN, Acting President
G. SPERDUTI
M. A. TRIANTAFYLLIDES
G. JÖRUNDSSON
G. TENEKIDES
B. KIERNAN
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
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
7 December 1984 by Cecilia and Lisa Eriksson against Sweden
and registered on 31 January 1985 under file No. 11373/85;
Having regard to:
- the Government's written observations dated 5 September 1985
- the applicants' written observations in reply dated
25 October 1985
- the Government's supplementary written observations dated
12 February 1986
- the applicants' supplementary written observations dated
21 March 1986
- the submissions of the parties at the hearing on 11 May 1987;
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 first applicant, Mrs. Cecilia Eriksson, is a Swedish
citizen, born in 1942 and residing at Ulricehamn. She is a municipal
child-minder (kommunal dagbarnvårdare). The second applicant,
Lisa Eriksson, is the first applicant's child and a Swedish citizen.
Lisa was born on 24 February 1978 and has, since March 1978, been
living in a foster home at Oskarström. The applicants are represented
before the Commission by Mrs. Siv Westerberg, a lawyer practising in
Gothenburg.
On 23 March 1978 the Southern Social District Council (södra
sociala distriktsnämnden) of Lidingö decided that Lisa should be taken
into care pursuant to Sections 25 (a) and 29 of the 1960 Act on
Child Welfare (barnavårdslagen). She was placed in the foster home
at Oskarström.
In May 1980 the first applicant applied to the Social District
Council that the care of her daughter be terminated.
On 8 May 1981 the Council rejected the application. The first
applicant appealed to the Regional Administrative Court
(länsrätten) of Stockholm, which on 22 October 1981 rejected the
appeal. The first applicant submitted a further appeal to the
Administrative Court of Appeal (kammarrätten) of Stockholm, which
on 11 March 1982 rejected the further appeal.
In March 1982 the first applicant again applied to the Social
District Council requesting that the care be terminated. She also
applied for permission to see Lisa in the first applicant's home. Both
requests were rejected by the Council. The first applicant appealed
to the Regional Administrative Court.
On 3 November 1982 the Court decided, as regards the question
of care, to reject the appeal since preparatory contacts
between Lisa and her natural parents had not taken place to a
sufficent extent. As regards the question of contact with Lisa, the
Court referred the case back to the Social District Council for
reconsideration.
The first applicant appealed to the Administrative Court of
Appeal. In the meantime on 21 January 1983 the Social District
Council decided that the care of Lisa should be terminated and that
Lisa and her natural parents could have contact in a certain way. In
these circumstances the Administrative Court of Appeal found no reason
to examine the further appeal.
The decision by the Social District Council of 21 January 1983
on the question of care was taken on the basis of a report on a social
investigation dated 17 January 1983 stating that the reasons for
continued care under the 1980 Act with Special Provisions on
the Care of Young Persons (lagen med särskilda bestämmelser om vård
av unga) no longer existed. Consequently, the Council decided to
terminate the care of Lisa.
In the same decision the Council decided pursuant to Section
28* of the Social Services Act (socialtjänstlagen) to order a
prohibition on removal (flyttningsförbud) until further notice. This
order implied that the first applicant and her husband were not
allowed to move Lisa from the foster home. This decision was based on
inter alia five certificates by the chief doctor E. and a curator of
the Children's and Juveniles' Psychiatric Clinic of Halmstad. In
these certificates it was stated, inter alia, that Lisa was deeply
rooted in the foster home and that her transfer to her natural
parents' home would jeopardise her mental health and development. The
Social District Council also decided to request from the Children's
and Juveniles' Psychiatric Clinic of Halmstad recommendations as to
how the contacts between Lisa and her natural parents ought to be
arranged.
The first applicant appealed against this part of the decision
to the Regional Administrative Court of Stockholm claiming in the
first place that the prohibition on removal be reversed and in the
second place that the prohibition be limited in time. The Court held a
hearing in the case. It heard chief doctor E. and Lisa's natural
father. The Court also heard an expert from the County Administrative
Board (länsstyrelsen).
On 10 October 1983 the Regional Administrative Court granted
the appeal insofar as it set a time limit until 31 March 1984 for the
prohibition on removal.
The Social District Council appealed to the Administrative
Court of Appeal of Stockholm requesting that the prohibition be
unlimited in time. The first applicant maintained in the first place
that the prohibition be reversed and in the second place that the
judgment of the Regional Administrative Court be confirmed.
The Administrative Court of Appeal held a hearing in the case.
It heard chief doctor E. and Lisa's foster mother. The National Social
Welfare Board (socialstyrelsen) submitted, on 13 February 1984, an
opinion to the Court. This opinion read inter alia as follows:
_____________
* Section 28 first paragraph reads:
"The Social District Council may for a certain period of
time or until further notice prohibit the custodian of a minor to
take the minor from a (foster home), if there is a risk, which is
not of a minor nature, of harming the child's physical or mental
health if separated from that home."
"As regards the assessment from a child psychiatric point of
view it is noted that the Children's and Juveniles' Psychiatric
Clinic of Halmstad has clearly expressed the opinion that a
removal of Lisa from the foster home ought not to take place.
This view is, in the opinion of the National Welfare Board,
well-founded as based on knowledge of the development and
need of children applied to the special situation of Lisa.
It is the opinion of the National Social Welfare Board that a
change of foster parent is always a serious interference for a
child and should not take place unless there are strong reasons
for it, for instance that the child is badly cared for where it
is staying. Through child psychological research and clinical
experience it is known that separations can imply a risk of
serious mental damage to the child.
In this case the now six year old Lisa has, since a very young
age, been staying in the present foster home, where she has
developed well together with the adults to which she is attached.
She is in an important phase of development and has not yet
attained the age and maturity where she can decide for herself.
She ought not to be placed in such a situation of choice. There
are no established contacts with the natural parents despite
efforts which have been made. From the documents it appears that
the father has not participated in the meetings with the foster
parents which were arranged during 1983. He has not seen Lisa
since 1982.
In this case new facts have been added which change the picture
of the parents' home. From (the documents received from the
court) it only appears that the rehabilitation of the parents has
developed well. From a telephone contact with the social
director of Ulricehamn on 17 January 1984 it appeared that the
father had lost his temporary job and had started to drink
alcohol again. He has been convicted of drunken driving and
lost his driving licence. The mother's post as a child-minder
for a child is a temporary post while the ordinary employee is on
maternity leave. There is however no criticism levelled against
the mother in her work.
...
...
Against the background of the facts of this case, it is the
assessment of the National Social Welfare Board that Lisa, if she
is moved from the foster family, will be subjected to a risk,
which is not of a minor nature, of harm to her psychological
health and development. It is therefore important that she can
stay in the foster home ..."
By judgment of 6 March 1984 the Court amended the judgment of
the Regional Administrative Court to the effect that the time limit
for the prohibition was set at 30 June 1984.
Both the first applicant and the Social District Council
appealed to the Supreme Administrative Court (regeringsrätten).
The first applicant later withdrew her appeal.
In its judgment of 11 October 1984 the Supreme Administrative
Court granted the appeal of the Council by confirming the Council's
decision of 21 January 1983.
The Court gave the following reasons for its judgment:
"Under Section 28 of the Social Services Act, the Social
District Council may, where the interests of the child so
require, prohibit the custodian from removing a child from a
foster home provided there is a risk, which is not of a minor
nature, of harming the child's physical or mental health if it is
moved from the home. When a child is placed in a foster home,
the aim should normally be to bring the child and its parents
together again. A prohibition under Section 28 of the Social
Services Act ought to be regarded as a temporary measure while
awaiting an appropriate time for moving the child from the foster
home without the risk of such detrimental effects as indicated
in the said section.
The following circumstances should inter alia be taken into
consideration when deciding on a prohibition on removal: the
child's age; stage of development; character and emotional
relations; the time the child has been taken care of by someone
else than its natural parents; the present living conditions
of the child and those it will have as well as the contact
between the parents and the child during the time they have been
separated.
Since (the first applicant) has withdrawn her appeal against the
judgment of the Administrative Court of Appeal, the Supreme
Administrative Court must examine whether the prohibition on
removal shall be in force until further notice, as claimed by the
Social District Council, or limited in time, in accordance with
the position adopted by the first applicant.
The examination of the question of the duration of a prohibition
on removal must be made in the light of the existing risk to the
child's physical or mental health if separated from its home.
If, already at the time of the issue of the prohibition, it is
considered, with sufficient certainty, that such a risk will
not be at hand after a certain date - when certain actions may
have been taken or the effects thereof have occurred - the
prohibition ought to be limited until that date. However, if it
is uncertain when the child could be transferred to the parents,
without this involving a risk which is not of a minor nature,
the prohibition ought to be in force until further notice and
the question of a transfer raised again at a later stage
when the risk of harming the child's health could be better
assessed. Irrespective of the duration of the prohibition,
the Social District Council is obliged to see to it that
appropriate actions aiming at a reunification are taken
without delay. Such actions are required in particular
when the Council, in accordance with what has been said, has
found reasons to order a prohibition until further notice.
Otherwise there is a great risk that, in the meantime, the
child will become more closely linked to the family it is
about to leave.
The efforts to establish a contact between Lisa and her
natural parents, which began already some three years ago,
have as far as can be seen from the documents not progressed
any further than to the point that Lisa occasionally has seen
them together with her present family and generally - as a
result of the orders given by the Social District Council -
also in the presence of an adult outsider. The meetings have
been coloured by the antagonism between the adults of the two
families, and Lisa, who appears only at a late stage to have
realised who her natural parents were, has reacted before and
after these meetings with anxiety and with a psychological
state of strain. What has appeared concerning the intensity
of Lisa's reactions clearly shows that a longer period of time
than decided by the lower courts is required before a transfer
could be made. Since appropriate measures aiming at the
reunification have not yet been taken there is, at the moment,
no basis for setting a date on which the transfer could be
made without jeopardising Lisa's mental health. The
prohibition on removal shall therefore be in force until
further notice."
On 28 November 1984 the first applicant requested the Social
District Council of Lidingö that her child be returned to her custody.
This request was dismissed by the Council on 18 January 1985. The
Council found that the risk for the child's mental health resulting
from a removal from the foster home would be the same as when the
Supreme Administrative Court rendered its judgment of 11 October 1984.
The first applicant appealed to the Regional Administrative
Court. She requested that the prohibition on removal be quashed and
that the child be returned in accordance with the rules laid down in
Chapter 21 of the Parental Code (föräldrabalken). On 8 October 1985
the first applicant withdrew her appeal and, as a result, the Court
struck the case off its list on 23 October 1985.
Prior to the withdrawal of the appeal, on 6 August 1985, the
first applicant lodged with the Social District Council of Lidingö a
request for access to the child every second weekend. The request was
dealt with by the Council on 16 August 1985. The Council found that
there was no legal basis for making a formal determination as regards
the merits of the request. The Council therefore decided not to take
any formal decision as to the first applicant's request for access to
the child.
The first applicant subsequently brought a request to the
Legal Aid Board (rättshjälpsnämnden) of Gothenburg for legal aid for
the purpose of bringing the present application to the European
Commission of Human Rights. The Board rejected the request on
8 November 1984.
The first applicant appealed to the Legal Aid Appeals
Board (besvärsnämnden för rättshjälpen), which rejected the
appeal on 4 March 1985.
COMPLAINTS
1. The applicants complain that they have been victims of a
breach of Article 8 of the Convention as a result of the decision by
the Supreme Administrative Court to order a prohibition on removal for
an indefinite period of time, despite the fact that the care
has terminated, and as a result of the refusal of the Social District
Council to decide on the right of contact between the first and the
second applicant.
Furthermore, they allege that the mere existence of a
provision enabling the Swedish authorities to issue a prohibition on
removal for an indefinite period of time constitutes a violation
of Article 8 of the Convention.
2. The first applicant also complains that in the proceedings
concerning the prohibition on removal she has not been afforded a fair
hearing and that accordingly Article 6 of the Convention has been
violated. She submits that the foster parents and the social
authorities can control Lisa and influence her attitudes. The
observations allegedly made by the foster parents and the social
authorities as regards Lisa's attitudes, for instance with respect to
her willingness to move home, seem to be accepted by the courts. As a
result of this control, Lisa is prejudiced by the authorities and the
foster parents. Furthermore, by being prevented from seeing Lisa alone
the first applicant is prevented from ascertaining Lisa's attitude
towards her home and the first applicant is therefore prevented from
submitting such information to the courts.
The first applicant also complains about the length of these court
proceedings, lasting for a total of seven years. She considers this
to be unreasonable.
3. The applicants also complain about the decision of the Social
District Council of 16 August 1985 not to decide on the contacts
between the applicants. They allege that they do not have any
effective remedy in this respect and that there has been a breach of
Articles 6 and 13 of the Convention.
4. The first applicant also complains that, in relation to her
appeal to the Regional Administrative Court against the Social
District Council's decision of 18 January 1985 not to grant the
request to have the second applicant returned to her, she was
subjected to a "blackmailing procedure" which forced her to withdraw
her appeal. She submits that she has been denied access to court for
the determination of her civil rights as guaranteed by Article 6 of
the Convention.
5. Furthermore, the first applicant contends that Article 2 of
Protocol No. 1 has been violated since she has been denied the right
to ensure for her child an education in conformity with her own
religious and philosophical convictions.
6. Finally, the first applicant complains that her right to
petition the Commission has been interfered with by the refusal of the
Legal Aid Appeals Board to grant her legal aid for this purpose. She
alleges a breach of Article 25 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 December 1984 and
registered on 31 January 1985.
On 16 May 1985 the Commission decided to invite the Government
to submit written observations on the admissibility and merits of the
application.
The Government's observations were received by letter dated
5 September 1985 and the applicants' observations in reply were dated
25 October 1985.
On 11 December 1985 the Commission decided to invite the
Government to submit supplementary written observations on the
admissibility and merits of the application.
The Government's observations were dated 12 February 1986 and
the applicants' observations in reply were dated 21 March 1986.
On 16 May 1986 the Commission granted legal aid to the
applicants.
On 5 March 1987 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
At the hearing, which was held on 11 May 1987, the parties
were represented as follows:
The Government
Mr. Hans CORELL Ambassador, Under-Secretary for Legal
and Consular Affairs, Ministry for
Foreign Affairs, Agent
Mr. Leif LINDGREN Legal Adviser, Ministry of Health
and Social Affairs, Adviser
Mr. Carl-Henrik Legal Adviser, Ministry for Foreign
EHRENKRONA Affairs, Adviser
The applicants
Mrs. Siv WESTERBERG Lawyer
The first applicant was also present.
SUBMISSIONS OF THE PARTIES
A. The Government
1. The relevant Swedish law
The Government submit that the aim of the Social Services
Act is to protect children and young persons up to the age of
18 years. Various rules have been laid down in the Act to achieve
this aim. One of them is the rule concerning the prohibition on
removal in Section 28 of the Act.
This provision is not valid for children who are being cared
for in foster homes under Section 1 of the Act with Special Provisions
on the Care of Young Persons. As long as such care continues, the
right of the custodian to decide the domicile of the child is
suspended. The right, however, is in principle returned to the
custodian if the care of the child in a foster home is terminated.
But if the social authorities find that there is a risk to the health
of the child, it is possible to suspend the right of the custodian
by applying the rule on the prohibition on removal in Section 28 of
the Social Services Act.
In the travaux préparatoires of the Act it is mentioned
that only a passing disturbance or other occasional disadvantage to
the child is not a sufficient ground for issuing a prohibition on
removal.
In the Government Bill presenting the Act it is further stated
that among the factors which shall be considered are the age of the
child, the degree of development, character and emotional ties. The
time the child has been cared for away from the parents must also be
taken into account as well as the living conditions the child has and
might be subjected to. The parents' contacts with the child during
the separation period must also be taken into account. One important
factor which must be considered in connection with a possible decision
on the prohibition on removal is the child's own preference. If the
child has reached the age of 15 years, its preference must not be
opposed without good reasons. But even the preferences of younger
children must be considered. The child's preferences can be of
importance in considering the risk of damage to the child as a result
of a removal. In this connection it should be noted that a prohibition
on removal can be issued until the child is 18 years old.
Commenting on the above rules, the Standing Social Committee
of the Parliament said in its report, inter alia, that a
prohibition might be issued if removal might imply a risk that the
child's physical or mental health could be damaged. The provision
is applicable in cases where separation or removal is detrimental to
the child. This could be the case even if no serious objections exist
in regard to the custodian. The Committee also stressed that the
provision was aimed at safeguarding the best interests of the child.
The interest of the custodian in deciding the domicile of the
child must give way when it conflicts with what is in the best
interests of the child. The Committee also referred to the risk of
damage to the child which a separation generally involves. Repeated
removals and removals which take place after a long time when the
child has managed to develop strong links with the home where it lives
should thus not be accepted without good reasons. The child's need
for secure relations and living conditions must be decisive in any
decision in these questions.
The main rule in Section 28, first paragraph of the Social
Services Act is supplemented with a second paragraph which gives the
Social District Council the right to issue a temporary prohibition on
removal until the question is finally decided. A temporary
prohibition may not be in force for more than four weeks.
A Social District Council cannot enforce a decision on
the prohibition on removal against the judgment of a general court
or an administrative court. A council decision is not enforceable if
a court decides otherwise.
According to Section 30 of the Social Services Act, it is the
Social District Council of the custodian's district which shall
supervise the child's situation in the foster home and also decide
concerning the prohibition on removal.
Section 73 of the Social Services Act prescribes that appeals
against decisions taken by a Social District Council under Section 28
of the Act can be made to the Regional Administrative Court. Appeals
against the judgments of this court can be made to the Administrative
Court of Appeal and further to the Supreme Administrative Court.
Rules concerning the enforcement of judgments and decisions
concerning the custody of children are laid down in Chapter 21 of the
Parental Code (föräldrabalken). According to Section 1 of this
chapter the Regional Administrative Court decides on questions
concerning the enforcement of judgments or decisions taken by the
general courts on questions concerning custody or the right to visit
children. According to Section 6 the Regional Administrative Court
may also take similar decisions on the request of the custodian even
in cases where there is no judgment or decision taken by a general
court.
2. The Facts
The Government observe that the Social District Council stated
in its decision of 21 January 1983 - in addition to the fact that the
care of the child should be terminated but that a prohibition
on removal should remain in force - that the long-term goal was that
the child should eventually be moved back home to her parents. This
decision on the prohibition on removal was based on five medical
certificates (8 April 1981, 24 June, 4 October, 6 December and 16
December 1982). They were issued by the child psychologist of the case
and the curator of the Children's and Juveniles' Psychiatric Clinic in
Halmstad. The certificates deal with the reactions of the child during
attempts in 1982 to accustom the child to her natural parents. The
Government refer to the contents of these certificates.
The Government also refer to two further certificates by the
same persons, dated 24 February and 7 September 1983 respectively, the
last of which states inter alia the following:
"For our part it is self-evident that Lisa must stay in the
foster home. The research during the last decades in the
area of child psychology and psychiatry has been
comprehensive. It has shown that the child-parent
relationship is of an enormous importance to the child and
what it canmean to break it up. A breaking up of this
relationship always implies a psychological trauma for the
child. One of our tasks at the children's psychiatric clinic
is to take a stand as to whether a child should be placed in
a foster home or not. In these cases the decisive question
is what has the least detrimental effects for the child, to
remain in an unsatisfactory environment or to come to a new
home. In the case of Lisa it is another matter. She lives
in a good home environment which well satisfies her needs.
It is accordingly in this case not a question of moving Lisa
for her own best. Our assessment is still that a removal of
Lisa would imply a risk for her mental health which is not
of a minor nature."
In addition the Government refer to the contents of a letter
of 21 March 1983 from the County Administrative Board of Stockholm
to the Regional Administrative Court, and a letter of 13 February 1984
from the National Social Welfare Board to the Administrative Court of
Appeal.
The situation today is that Lisa is nine years old. She is
still living with her foster parents. She sees her mother regularly
once a month and she has been left alone with her during the visits.
It has so far not been possible to make an arrangement which would
permit Lisa to stay overnight with her mother. All efforts made in
order to create a relationship between Lisa and her mother trustful
enough to make such an arrangement possible have been unsuccessful.
The conflict between Lisa's mother and the foster parents is
still very serious. The Social District Council of Lidingö has, with
assistance from a team of psychologists, tried to see to it that a
better relation between Lisa's mother and her foster parents is
created. Lisa is aware that the first applicant is her mother and she
is now torn between her loyalty to her foster parents and to her
mother. The efforts which have been made by the social authorities to
solve the situation have aimed at finding the best possible solution
for Lisa.
On 27 January 1987 the first applicant made a new appeal to
the Social District Council claiming that the prohibition on removal
should be quashed. She urged that the Council should deal with her
application as quickly as possible.
According to the social authorities, the first applicant
earlier accepted that it was best for Lisa to remain with her foster
parents but to see her mother on a more regular basis. This was
clearly declared by her at a meeting with the foster parents on
12 September 1985. Since Lisa had shown anxiety when meeting her
mother, the first applicant was aware that it was necessary to move
slowly so that Lisa got to know her mother better. The aim should be
to create such a relation between Lisa and her mother that Lisa could
stay overnight with her mother over a weekend and perhaps spend a few
days with her during a holiday. It has been important to the first
applicant that Lisa got over her sense of fear of her mother.
In January 1987 the conflict between the first applicant and
the foster parents culminated when they visited a photographer
together with Lisa. Lisa became very upset. After this event Cecilia
Eriksson made her new appeal to the Council now under consideration.
On 3 March 1987 the Social District Council decided to have examined
what the consequences would be if the order of prohibition on removal
was quashed and Lisa was to move to her mother.
For that purpose the Council asked the Children's and
Juveniles' Psychiatric Clinic in Halmstad that a psychologist deliver
an opinion regarding the consequences that could be expected as to
Lisa's mental and physical health if Lisa were moved to her mother
from her foster parents. The psychologist has contact with Lisa on a
regular basis. The Clinic has not yet delivered its opinion but
according to information available to the Government this opinion will
be delivered in May 1987.
According to information submitted by the social authorities,
Lisa has visited her mother on 15 March 1987, and on one occasion in
April. After both these visits Lisa has, according to the same
authorities, explained that she does not want to visit her mother and
that she has felt forced to visit her.
Lisa's father has recently moved out and the first applicant
is now living alone with her second child, her son Jonas.
3. The Admissibility
The Government have no objections to make as far as the six
months' rule in Article 26 of the Convention is concerned.
In the Government's view the Commission's examination of a
case should be limited to the facts to which the original complaint
relates. The development of the matter after the Commission has
started its examination of the case falls outside the scope of the
examination. Another interpretation of the principles for the scope
of the examination might lead to an interference, for example, with a
case pending before a domestic court.
The question of how and when Lisa should be returned to her
mother is still not solved. It is therefore important to set a limit
for new complaints when the case is pending before the Commission. It
seems natural not to allow complaints regarding new circumstances
after the Government have submitted their observations as to the
admissibility of the case.
The Government further maintain that the complaint under
Article 6 must be rejected ratione materiae as falling outside the
scope of the Convention (cf. below). In any event and for the reasons
given in the following, the Government maintain that the application
should be declared inadmissible for being manifestly ill-founded.
4. The Merits
4.1 Article 6 of the Convention
4.1.1 The proceedings concerning the prohibition on
removal
Article 6 concerns the determination of an individual's civil
rights and obligations or a criminal charge against him. The
Government fail to see that any of these two prerequisites are
fulfilled in this case. Since there is no question of a criminal
charge, Article 6 can only be applicable if the subject matter
concerns the applicants' "civil rights and obligations".
However, the decisions by the Social District Council and the
three courts that are contested in the present case do not concern
civil rights and obligations. In fact, the Convention does not
contain any provisions on how the High Contracting Parties should deal
procedurally with matters concerning care of minors, except
those laid down in Article 5. But those provisions are not applicable
in the present case.
It follows that the only provision which could be invoked in
this context is Article 13, according to which everyone whose rights
and freedoms as set forth in the Convention are violated shall have
an effective remedy before a national authority. The proceedings
before the courts show that the applicants have had such a remedy.
With reference to the above the Government maintain that the
complaint under Article 6 falls outside the scope of the Convention
and should be rejected as being incompatible ratione materiae with the
provisions of the Convention.
In case the Commission does not share this opinion, the
Government submit the following.
As far as the question regarding the prohibition on removal is
concerned there have been three court hearings in the present case: by
the Regional Administrative Court (judgment of 10 October 1983), the
Administrative Court of Appeal (judgment of 6 March 1984) and the
Supreme Administrative Court (no oral hearing; judgment of 11 October
1984). It does not seem to be contested that these court hearings
were public or that the courts were established by law.
The applicants' counsel seems however to suggest that, as the
child was still in the foster home, the foster parents and the social
authorities had easier access to or more influence over the child and
therefore a procedural advantage over the applicant. The courts have
neglected this inequality of the parties or perhaps found the foster
parents and the authorities more trustworthy than the applicant. The
hearings - if the Government have correctly understood the reasoning
of the applicants' counsel - could not therefore be said to have been
"fair" and the courts perhaps not "impartial".
The reasoning of the applicants' counsel could perhaps be
understandable if the courts had based their decisions on an opinion
that the child might have expressed concerning its preference for a
future home. However, an opinion of the child is not even mentioned
by the courts in their decisions. There is, in the Government's
opinion, nothing to substantiate the allegation of the applicants that
a procedural disadvantage has affected the possibilities for them to
obtain a fair hearing.
For this reason the Government maintain that the applicants'
allegation of a violation of Article 6 of the Convention should in the
alternative be declared inadmissible as being manifestly ill-founded.
4.1.2 The request concerning access to the child
The Government submit that a consequence of a decision to
prohibit a custodian from removing a minor from a foster home is that
the custodian's right of access to the child is to some extent
affected. As a matter of law, the Social District Council could
change this situation only by a decision that the prohibition on
removal be discontinued.
As to the question whether the first applicant's "civil
rights" were concerned the Government refer to their submissions
above. The view that care of minors does not concern "civil
rights and obligations" is relevant also in this context. In view
of the circumstances this argument applies a fortiori in relation
to the access to the child.
The Government add the following in case the Commission should
not agree with this opinion.
The position taken by the Social District Council on 16 August
1985 can hardly be considered a "determination" within the meaning of
Article 6. Subsequent to the decision on prohibition on removal, the
main concern of the Social District Council was to provide for
facilities by which the obstacles preventing the reunification of the
first applicant and the child could be removed. The means by which
this should be endeavoured are not regulated by law.
As a practical matter, the Council in this situation naturally
had to consider a number of different ways of approaching the problem,
some of which led to some form of practical action, some of which did
not. This process might well have required the Council to take
decisions on particular issues. In the Government's opinion it would,
however, not be feasible to view each position taken by the Council in
the course of these considerations as a "determination" within the
meaning of Article 6, and this is particularly so in respect of
tentative considerations concerning possible measures to be taken that
ultimately did not lead to any form of practical action.
As regards the present issue, there is certainly no reason to
believe that the Council did not all but continuously consider when,
and under what forms, to bring together the first applicant and the
child. The fact that the Council at its meeting of 16 August 1985 did
not feel that the time was ripe to go so far in this respect as
suggested by the first applicant and, accordingly, did not take a
decision to this effect, cannot, in the Government's view, constitute
a "determination" within the meaning of Article 6 of the Convention.
Moreover, there exists no provision on which the Social
District Council could base a negative or a positive decision
regarding an application lodged by a parent for access to a child when
an order of prohibition on removal has been issued. It could
therefore be argued that the Social District Council has only informed
the first applicant of the contents of the law in this regard, i.e.
that the Social District Council was not competent from a legal point
of view to make any kind of decision regarding access to the child in
the way she wished.
Viewed this way, and given the first applicant's status in
respect of this question as outlined above, it is of no relevance that
she, prior to the Council's meeting, had expressed her opinion as to
how the matter should be handled. As has previously been indicated,
her only way of procuring a decision by the Council, that in the
Government's view would have amounted to a "determination" within the
meaning of Article 6, would have been to request the prohibition of
removal to be terminated.
In view of the said, the Government submit that the position
taken by the Social District Council on 16 August 1985 did not
constitute a "determination" of the first applicant's "civil rights"
within the meaning of Article 6 para. 1 of the Convention.
The Government submit that there is, in principle, no
difference between the considerations required as regards the question
of bringing together the first applicant and the child, and those
necessary in respect of the great number of other questions appearing
in the course of the process aiming at the ultimate goal of
permanently reuniting them. If, therefore, the Council's
manifestation of its position as regards the first question were to be
viewed as a "determination" within the meaning of Article 6, it would
be inconsistent not to take the same view in respect of many other
questions. Obviously, this would lead to unmanageable consequences.
In case the Commission should come to the conclusion that the
position taken by the Social District Council on 16 August 1985
constituted a "determination" of the first applicant's "civil rights"
within the meaning of Article 6, the Government admit that the first
applicant did not have the benefit of the guarantees provided for in
the said Article.
The decision of 16 August 1985 could not have been reviewed by
a court. The way in which the applicant could have had the matter
examined by a court was to apply for a termination of the prohibition
on removal.
In the proceedings concerning termination of a prohibition
on removal, the Council and the courts shall decide whether such a
prohibition is necessary and, if the answer to this is affirmative,
whether a time limit should be set for the prohibition. This means
that the contacts between a child and its parents cannot be
determined explicitly in those proceedings in the same way as in
proceedings between two parents concerning custody, or in proceedings
pursuant to Section 16 of the 1980 Act with Special Provisions on the
Care of Young Persons. However, the practical measures taken by the
Social District Council in this regard are one factor that must be
taken into account when an order of prohibition on removal is issued
with or without a time limit.
When a time limit is set it is intended that the child shall
be returned to its parents when the time limit has expired. The
purpose is that there shall be some time for making the necessary
arrangement for a reunification. A lack of contact between a child
and its parents due to measures taken by the social authorities, of
course, could be used as an argument for quashing an order of
prohibition on removal, or at least for setting a time limit where
this has not been done. Thus, a certain pressure could be put on the
social authorities to make the practical arrangement for a
reunification. However, as has been said before, it is always the
solution which is considered to be for the benefit of the child in
each situation that will be chosen. This forms the basic principle
concerning custody, taking children into care, prohibitions on
removal, parents' access to a child and other issues in which the
rights of children and their well-being are at stake.
4.1.3 The request that the prohibition on removal
be terminated (decision of 18 January 1985)
Referring to their submissions above, the Government contend
that Article 6 is not applicable in this context. In addition they
submit the following.
The Social District Council's decision of 18 January 1985 not
to discontinue the prohibition on removal of the child from the foster
home was in due order appealed to the Regional Administrative Court.
Although this court ordered that a new examination of the matter be
carried out, the first applicant on 8 October 1985 chose to withdraw
her appeal.
The first applicant has alleged that prior to this withdrawal
she was advised by one of the family psychologists, engaged to
facilitate the contacts between the persons involved in the matter,
that further court proceedings might prejudice the efforts that were
being made for the purpose of reuniting mother and child.
The Government submit the following information: In her letter
to the Court of 7 October 1985 the first applicant's counsel stated as
the reason for the withdrawal of her appeal that the first applicant
was informed by the team of psychologists that she would not be
allowed to have Lisa visiting her as long as she kept carrying on
law-suits concerning Lisa. He further stated that the first applicant
found herself in the classical situation as an object of blackmail.
According to information submitted to the Government by the
social authorities this was not correct. The first applicant did not
receive any such information as is referred to in the letter, either
by the psychologist in the team or by the social authorities. The
first applicant has herself denied that she was given any such
information and she became very upset when she was informed of what
her counsel had written in the letter to the Court in this regard.
She has denied that she has expressed herself in that way to her
counsel. To a social welfare officer in the municipality of Lidingö,
she has said that her counsel exaggerated a lot when describing the
situation as something similar to blackmail. Her counsel had urgently
tried to persuade the first applicant not to withdraw her appeal. All
this was said in a telephone conversation between the first applicant
and the social welfare officer on 7 November 1985.
It is evident that the first applicant's withdrawal was not
founded on such considerations and that the circumstances were not
such as to raise an issue whether she had been denied access to court.
Even assuming that this allegation is correct, the Government
contend that this cannot be considered as denying the first applicant
access to court in conflict with Article 6 of the Convention. In this
context the Government refer to the fact that, still assuming that the
first applicant was thus advised, this information was not furnished
by the Social District Council or any other authority, or by any
person acting in an official capacity. Furthermore, if the family
psychologist in question was of the opinion that further court
proceedings might prejudice the handling of the matter, there is no
reason why he should not inform the first applicant about his opinion.
Regardless of the fact that the appeal was withdrawn, the
first applicant could at any time subsequent to the withdrawal have
petitioned the Social District Council for a reconsideration of the
prohibition on removal. A decision of the Council to the effect that
the prohibition would not be discontinued could have been appealed to
the administrative courts.
In view of the foregoing, the Government submit that the
first applicant has not been denied access to court in conflict with
Article 6 para. 1 of the Convention.
4.2 Article 8 of the Convention
The applicants' complaints under Article 8 refer both to the
legislation as such and to the particulars of the specific case.
As to the legislation, the Government submit that the
principle of the right to respect for private life and family life is
laid down in Article 8 para. 1. This right is however not absolute.
Paragraph 2 of the same Article contains certain restrictions provided
that they are in accordance with the law and necessary in a democratic
society. One of the criteria which may allow such a restriction is
the protection of health and morals.
An examination by the Commission of a certain case should be
limited to the aspects of that case. Consequently, general complaints
of a certain legislation could not be dealt with by the Commission.
However, if the legislation were to be examined it is the
Government's opinion that Section 28 of the Social Services Act as
such fulfills the requirements laid down in Article 8 of the
Convention. The fact that a prohibition on removal could be rendered
until further notice could be justified in certain cases.
Individual cases vary considerably and it is difficult to
formulate anything but general principles in the legislation. There
has however been an attempt to expand on the principles in the travaux
préparatoires in order to provide guidelines for everyone concerned in
these matters. The criteria for issuing decisions on prohibition on
removal of children fall within the scope of the criteria mentioned in
Article 8 para. 2 of the Convention, namely protection of health and
morals of the child in question.
For the above reasons, the Government consider that the
existing legislation is in accordance with the principles of the
Convention. Insofar as the applicants' complaints refer to the Swedish
legislation in this particular field, the application should be
declared inadmissible for being manifestly ill-founded.
The Government accept that a decision prohibiting a child's
reunification with its parent constitutes an interference with the
right to respect for family life regarding the parent as well as the
child. Such a decision, however, forms the legal basis for the future
development, that is when and in what way the reunification which is
to be achieved shall take place. This process involves in itself a
number of decisions of a practical nature including when and how often
the parent shall meet the child before the reunification can take
place. During this process other practical matters can also arise
concerning, for example, the child's upbringing or what school the
child should attend. Decisions in this regard made by the social
no legal basis under Swedish law in the sense that there is a
law prescribing under what conditions such decisions should be made.
Thus the law does not lay upon the social authorities to make formal
decisions as to the contacts between the parent and the child in this
situation.
One of the consequences of an order of prohibition on removal
is that the custodian's access to the child is affected. As a matter
of law this situation can be changed only by a decision that the
prohibition on removal be discontinued. Since the measures taken by
the social authorities in this regard cannot be considered as
decisions founded on law, the Government question whether such
measures seen separately constitute an interference with the
applicants' right under Article 8. The interference that has taken
place relates instead to the prohibition on removal itself.
The Government are thus of the opinion that the order
prohibiting the first applicant from moving Lisa from the foster home
constitutes an interference with their rights to respect for family
life as protected by Article 8 but that the measures taken by the
social authorities after that order was issued do not constitute a
separate interference.
In the Government's view it is evident that the prohibition on
removal of the child was made in accordance with Swedish law, namely
Section 28 of the Social Services Act.
The applicants have alleged that the mere existence of such a
provision constitutes a violation of Article 8. This allegation is
rejected by the Government. It is obvious that there must be cases
when a child, who has lived in a foster family perhaps for several
years, cannot be reunited with its parents, whom he or she may have
seen but occasionally, directly after a care order has been lifted. In
such a situation some time must be provided during which the child is
given a chance to get to know its parents properly before they are
reunited. Otherwise there is a serious risk for the mental health of
the child.
The provision in question aims at securing this right of the
child. If the parents want to move the child earlier than the child
can manage this provision can be applied. The provision thus aims at
protecting the child's interest in this regard and that interest
must prevail over the custodian's right to have the child returned
when he or she wishes. The cautiousness that the authorities must
observe when considering when and how a child shall be returned to its
parents is also stressed by the Commission in its Report in the Olsson
case (Comm. Report, 2.12.86 para. 165). The fact that these
considerations in the present case were made after the lifting of the
care order and under the special provisions on prohibition on removal
does not affect the applicability of the Commission's reasoning in the
present context.
A prohibition on removal can be limited in time or be in force
until further notice. The Supreme Administrative Court has in its
judgment explained the conditions for setting a time limit. Applied as
indicated by the Supreme Administrative Court and in view of the
purpose of the provision, it is evident that the mere existence of
the provision does not constitute a violation of Article 8. The
condition "in accordance with law" is clearly satisfied in the
Government's view.
In the Government's view it is also evident that the
interference was made in the interest of the child which is clearly a
legitimate aim under Article 8 para. 2 falling under the expression
"for the protection of health or morals" and "for the protection of
the rights and freedoms of others".
Turning to the question of the necessity of the interference,
the Government recall the Commission's Report in the Olsson case. In
that case the Commission held that the word "necessary" requires that
the interference corresponds to a "pressing social need". The
question that arises is thus whether the prohibition on removal
corresponded to such a need and whether the Supreme Administrative
Court's decision to revoke the time limit set by the lower courts
corresponded hereto.
In the Olsson case regarding the examination of the condition
"necessary in a democratic society" the Commission stated (in
para. 152) that it is not its task to take the place of the competent
national courts and make a fresh examination of all the facts and
evidence of a case brought before the Commission in the same way as
may be done by a domestic court. The Commission's task should be to
review under Article 8 the decisions taken analysing the criteria
applied and the reasons and evidence on which the decision was based.
Thus, the examination of this case should be made with a view
to establishing whether it was necessary within the meaning of the
Convention not to return Lisa to her mother when the care order was
lifted and to issue the prohibition on removal.
In the Government's opinion such an examination does not imply
that any misjudgment that may be considered in this regard must
constitute a violation of the Convention. An area must be provided
within which no violation can be found even if the decisions taken can
be questioned or even considered wrong, provided that there are fair
reasons for the conclusions at which the competent authorities have
arrived.
If this borderline is not properly fixed, the procedure
according to the Convention will constitute an extra level of
jurisdiction with a function very similar to an extra level of
jurisdiction within the State concerned. In the Government's opinion
this leads to the conclusion that the Commission's examination of the
present case should essentially be limited to establishing whether the
decisions taken have been based on irrelevant circumstances,
unacceptable criteria and standards or on other reasons which cannot
be considered fair.
Another approach could lead to consequences that were not
foreseen by the authors of the Convention. The examination whether
the interference corresponds to "a pressing social need", as the word
"necessary" was interpretated by the Commission in the Olsson case,
can of course result in different opinions. But this condition should
not be applied in such a way that a serious concern with the aim of
protecting a child's mental health from being endangered could be
considered a violation of the Convention. Such an interpretation does
not conform with the spirit of the Convention.
The Government also emphasise the importance of having access
to a direct basis of facts when judging a case like the present one.
Without such an access it is a very risky task to examine and review
the case in detail. The examination concerns such a serious matter as
the dangers that may exist to the child's mental health if returned to
her parents. It is recalled that the Regional Administrative Court as
well as the Administrative Court of Appeal heard witnesses, among
others Dr. A.L.E.L. Her opinion has been a determining factor for
the social authorities when handling the matter.
As regards the prohibition on removal as such, it appears
clearly from the reasons given by the courts that this order was
issued in the child's interest in order to make it possible to
establish a better relation between the child and her parents before a
reunification could take place. There seems to have been no dispute
as to the fact that Lisa had not seen her mother often enough and that
the relation between Lisa and her mother was not such as to make it
possible to send Lisa back to her parents without a certain period
during which a closer contact between them could be created.
From the medical certificates submitted to the courts it
clearly appears that it was considered that Lisa's mental health would
be at risk if she were moved from the foster home where she felt safe
and was living under good conditions. According to the judgment of
the Administrative Court of Appeal, the first applicant herself seems
to have accepted that a reunification was not possible until preparatory
measures had been taken. It should also be taken into account that
the first applicant herself seems to have accepted the judgment of the
Administrative Court of Appeal, since she withdrew the appeal she had
made against that judgment.
Against this background there are no reasons for claiming that
the prohibition on removal was not necessary within the meaning of the
Convention.
The Supreme Administrative Court has clearly expressed its
reasons for altering the judgments of the lower courts. It is evident
that the Supreme Administrative Court also made its decision in the
interest of the child. The main difference is that this court was of
the opinion that the time limit set by the lower courts was not
sufficient for creating such conditions as to make a removal of Lisa
to her parents possible. The Court was of the opinion that it was not
possible to set a date for a reunification since the necessary
preparations for a reunification were not made.
The Supreme Administrative Court, however, clearly stated:
"Irrespective of the duration of the prohibition, the Social
District Council is obliged to see to it that appropriate
actions aiming at a reunification are taken without delay.
Such actions are required in particular when the Council, in
accordance with what has been said, has found reasons to order
a prohibition until further notice. Otherwise there is a risk
that, in the meantime, the child will become more closely
linked to the family it is about to leave."
In the Government's view this judgment also has been based on
fair and relevant reasons. The interference that it implies must be
considered necessary within the meaning of the Convention.
The question to be put, in this case, might not as much relate
to the decisions of the Social District Council and the courts as to
why it was not possible to create a closer contact between Lisa and
her mother so as to make a reunification possible. It goes without
saying that a child gets more attached to a foster family the longer
it remains with it without having a satisfactory contact with its own
parents. It is also evident that it is very difficult to create a
good relationship between the child and its parents if the relations
between the child's foster parents and its natural parents are not
trustful. It seems that the answer to the question can be found in
the relations between the persons involved.
When the care order was lifted on 1 January 1983, Lisa would
soon have been five years old. She had been living in the same foster
home since she was born. She was placed in the home only a few days
after her birth. A close contact has developed between her and the
foster parents. As appears from the court decisions she had seen her
mother only four, five or six times a year at that time. However,
according to the social authorities, Lisa had been informed that the
first applicant was her natural mother before the proceedings in the
Administrative Court of Appeal. The Court's statement to the contrary
is not correct according to the same authorities. Lisa, however, did
not accept this fact and reacted upon all assertions in this regard
with anger.
The social authorities were of the opinion that it was
necessary to establish a trustful contact between the first applicant
and Lisa's foster parents in order to make it possible to let Lisa
visit her mother more regularly. For many years the authorities
failed in this ambition. The conflict between the foster parents and
the first applicant became very deep.
One should be careful not to blame one of the parties in a
conflict, but in the view of the social authorities the first
applicant's own behaviour was the main reason that prevented a
trustful contact from being established. She often lost her
self-control and would shout and scream at the foster parents when
talking to them over the phone. She threatened to come and fetch her
child. At this time Lisa was frightened of her mother and she was
anxious when she met her, although at this time she was never left
alone with her.
It should also be borne in mind that the child psychiatrist
who had examined Lisa strongly advised against, not only Lisa's return
to her parents, but also too frequent meetings with the mothers,
considering Lisa's emotional reactions after such meetings. In
October and December 1982 and in February 1983 it was recommended that
Lisa should not meet her mother more often than every two months. The
National Social Welfare Board which delivered its opinion at the
request of the Administrative Court of Appeal did not question the
conclusions drawn by the psychiatrist. On the contrary it strongly
supported them and even pointed out the measures that could be taken
regarding the legal custody, that is to ask for the court decision to
move the legal custody from the parents to the foster parents. What
has been said now explains rather clearly the reasons why the case
developed as it did.
Since the Supreme Administrative Court's judgment called for
further measures to be taken by the Social District Council it is
mentioned that the Council, after that judgment, engaged a team of
psychologists. However, it has still not been possible to create a
firm, trustful relationship between the foster parents and the first
applicant in order to facilitate Lisa's meetings with her mother.
In the Government's view all measures taken by the authorities
have been necessary within the meaning of the Convention in the
child's interest. The criteria and standards that have been applied
have been reasonable and the reasons for the decisions were fair. The
interference that has taken place is thus justified under Article 8
para. 2 of the Convention. This is so, regardless of whether the
interference should be considered to relate only to the decisions of
the Social District Council and the courts or to these decisions
together with the restrictions of the contacts between the first
applicant and Lisa. In the Government's view the complaints of the
applicants in this regard are manifestly ill-founded.
4.3 Article 13 of the Convention
With reference to what has been submitted above under 4.1.2,
the Government first maintain that the question of a remedy does not
arise.
In case the Commission does not share this view, the
Government submit that the first applicant did have effective remedies
within the meaning of Article 13 of the Convention.
The activity of the Social District Council is subject to
supervision by the Parliamentary Ombudsman (justitieombudsmannen), the
functions and powers of whom is basically laid down in Chapter 12,
Section 6 of the 1974 Instrument of Government (regeringsformen) and
the 1975 Act of Instruction to the Parliamentary Ombudsmen (lag med
instruktion för justitieombudsmännen). The Ombudsman is elected by
the Parliament, and one of his particular duties is to ensure that the
fundamental rights and freedoms of citizens are not encroached upon in
the process of administration. In fulfilling this duty, he is
empowered to receive complaints lodged by individuals, to carry out
the inspections and investigations he considers necessary, and to
render decisions in which he states his opinion as to whether a
measure or omission on the part of an authority or an official is
illegal or otherwise inappropriate. The Ombudsman is also vested with
the authority of prosecuting officials or initiating disciplinary
measures against them.
Furthermore, according to Section 68 of the 1980 Social
Services Act, the activity of the Social District Council is subject
to supervision by the County Administrative Board. Under this
section, the County Administrative Board shall supervise the activity
of the Social District Council and see to it that its obligations are
carried out in an appropriate manner.
The Government finally draw attention to the fact that the
first applicant could at any time have re-petitioned the Social
District Council to have the prohibition on removal discontinued. A
rejection by the Council of such a petition could have been appealed
to the administrative courts.
4.4 Article 25 of the Convention
In the opinion of the Government the applicants seem to be
under the erroneous impression that an obligation exists for the
Contracting parties of the Convention to furnish individual applicants
with legal aid. However, no such obligation exists. On the other
hand, it is possible for the Commission to provide legal aid from the
funds of the Council of Europe in accordance with the Addendum to the
Rules of Procedure on legal aid.
The Government maintain that the application should be
dismissed insofar as it concerns an alleged violation of Article 25
of the Convention.
4.5 Article 2 of Protocol No. 1
The applicants also allege a violation of Article 2 of Protocol
No. 1 on the grounds that no special provision has been made for the
applicants' Christian conviction in the upbringing of the child in the
foster home, and that the atmosphere in the foster home has been
hostile to religion. In this connection the Government mention the
following.
No special request has been made by the first applicant
concerning the religious education of her daughter. Despite this fact
steps have been taken by the foster parents to ensure a proper
religious upbringing of the child. Both foster parents are members of
the Church of Sweden. The child attended a children's playgroup
organised by the church for one year before she started primary
school. Various religious books for children have been read in the
foster home and the child has been taught to say evening prayers.
There is nothing to substantiate the allegations made by the
applicants in this respect.
The Government further note that there are no references to
the matter of religion in the judgments of the courts. An obvious
conclusion is that this issue has never been raised before the courts.
In fact, it seems that the aspect of religion has been introduced
before the Commission by the present counsel for the applicants. Since
the Swedish authorities have not been in the position to express
themselves on this matter the Government questions whether the
Commission could deal with this aspect of the case at all.
Finally, it does not seem reasonable to interpret Article 2 of
Protocol No. 1 so as to grant to every parent of a child taken into
care a right without restrictions to ensure the child an education in
conformity with his or her religious convictions.
In any case the Government maintain that the complaint under
Article 2 of Protocol No. 1 should be dismissed for being manifestly
ill-founded.
5. Conclusions
The position of the Government is
- that the application should be declared inadmissible for
being incompatible ratione materiae with the Convention as
falling outside the scope of the Convention, or in any case,
for being manifestly ill-founded, and
- that there has been no violation of the Convention or
Protocol No. 1.
B. The Applicants
1. The Facts
Before Lisa was born the first applicant had certain problems
with narcotics. But from the day when she got knowledge that she was
pregnant she stopped every form of use of narcotics. At the time she
took care of her three children who have now grown up. When Lisa was
born in February 1978 the first applicant had social problems. She
had been sentenced to fourteen months' imprisonment for buying stolen
goods (häleri) and possession of narcotics. During the pregnancy she
had been in custody several months. However, she appealed against the
court's judgment to the Court of Appeal and thereafter she also
requested a pardon and it was only one year after the birth of the
child that she started to serve her sentence. She was released when
Lisa was about two years old. When the child was taken into care, the
first applicant was given the impression that it was a temporary
measure but the prospective foster parents were led to believe that
Lisa would be staying with the foster family for the whole of her
youth. The foster family lived around 600 kilometres away from where
the mother lived at the time of the birth.
While in prison the first applicant came into contact with a
priest of the prison and she became a Christian. She decided to
break off completely with her previous life and today she is completely
rehabilitated.
The first applicant now lives in a house in the countryside
together with Lisa's brother, the now six-year-old Jonas, and a
daughter from an earlier marriage who is twenty years of age. The first
applicant has three elder children in their twenties. One daughter
works as a nurse, one son works as a guardian and another daughter,
the one who stays at home, works temporarily on a farm. The first
applicant takes care of her son Jonas and has done so since he was
born. She works herself as a municipal child-minder. She takes care
of three other children every day. The first applicant is a member of
a religious congregation, where she has worked as a leader for a
children's group. The first applicant's suitability as a custodian is
thus not disputed. She has succeeded very well in bringing up four of
her five children and society has entrusted her with the care of the
children of other people.
The foster parents with whom Lisa has been placed appear to
have decided to keep Lisa as their own child. Both the foster parents
and the social authorities have done and still do a lot to make it
difficult for the first applicant to have access to her daughter. It
was only at the age of five that Lisa was informed by the foster
parents that the foster parents were not her natural parents. The
first applicant has the whole time had the intention of having the
child back from the foster parents.
The first applicant has seldom been allowed to visit her child
Lisa. In 1971 she was allowed to visit her once at Unnaryd, about 600
kilometres away, during 1979 she visited her twice, during 1980 twice
and during 1981 once. During 1982 she visited Lisa three times at the
children's psychiatric clinic at Halmstad, once she saw her at the
first applicant's home and four times under strict supervision. During
1983 she was allowed to visit Lisa four times, during 1984 four times,
during 1985 four times, during 1986 eight times and during 1987 twice.
As regards the visit mentioned by the Government during which there
was an incident at a photographer in January 1987, the first applicant
submits that the background was the following: the first applicant
wished to take a photograph of her two children, Lisa and Jonas, and
she had informed the foster parents that she wished to take both
children to a photographer in a nearby town. When the foster parents
arrived they immediately said that Lisa refused to accompany them to
the photographer. The first applicant then asked Lisa directly
whether she wished to accompany her to the photographer and Lisa
replied, pointing at the foster father, "yes of course if Daddy will
accompany me". Then the foster father immediately said "I'm not
going with you".
The first applicant then requested, on 6 August 1985, that the
Social District Council should decide that the first applicant should
have a right of contact with the second applicant every second weekend.
In a decision of 16 August 1985 the Social District Council decided
not to regulate the contacts between the applicants or the frequency
of such contacts. The Council noted that there was no legal rule
according to which the Council could decide on the contacts and
therefore it could not provide the first applicant with any notice of
appeal.
The applicants submit that the situation is accordingly that
individual employees of the social authority decide that the first and
the second applicant can only meet on specific occasions and at long
intervals. These decisions taken by public employees are a restriction
on the right of the mother and child to meet each other and a
violation of the applicants' right to respect for private life and
family life as guaranteed by Article 8 of the Convention. According
to Article 13 of the Convention the applicants should in such
circumstances have a right to an effective remedy before a national
authority. It appears however from the decision of the Social
District Council that no such remedy exists.
After her appeal to the Regional Administrative Court the
first applicant received in September 1985 orally from a person in the
private company engaged by the social authority, the following message:
"The private company considers that, as long as the
first applicant keeps on conducting court proceedings
concerning the second applicant, the second applicant
becomes so nervous and excited and does not know where she
should stay. As long as the first applicant continues with
proceedings concerning the second applicant, the first
applicant cannot be allowed to meet the second applicant
alone. If however the first applicant terminates the
proceedings concerning the second applicant the private
company promises that the first applicant will be permitted
to have the second applicant with her regularly in her home
alone during certain weekends."
Confronted with this threat and this promise the first
applicant saw no other way than to withdraw her action before the
Regional Administrative Court. Through this blackmailing procedure
from the private company the first applicant has in practice been
deprived of her right according to Article 6 of the Convention to have
her civil rights determined by a court.
2. The Admissibility
The applicants contend that on all points their claims are
well-founded and that on all points they concern issues which fall
within the scope of the Convention. They also contend that all
conditions of admissibility have been complied with and that the case
should be declared admissible.
3. Article 8 of the Convention
The applicants submit that the right to respect for family
life and private life must be considered to comprise also the most
important part, namely the right to live together with your family and
to be able to do this privately, i.e. without interference from others
or forced presence of others. When a State, by different acts,
decisions and judgments, prevents two members of the same family from
living together this undoubtedly is a very important interference
with the right to family life.
The second applicant was placed in a foster home at
Oskarström, 160 kilometres from the first applicant's present home at
Köttkulla near Ulricehamn. In the course of the nine years during
which the two applicants have been separated, the first applicant
has been able to meet her daughter Lisa without supervision on three
occasions and only for two hours at a time. The first time was in
spring 1986 when the first applicant was permitted to stay two hours
with Lisa and Jonas in the foster home. They were allowed to travel
to Halmstad, a nearby town. In April 1987, i.e. after the hearing in
the case in Strasbourg had been decided, the applicants have on two
occasions been permitted to be alone two hours in the first
applicant's home.
It follows that the first applicant has been permitted to meet
the second applicant without supervision for a total of six hours over
a period of nine years. On all other occasions the contact between
the first and second applicants have occurred under supervision of the
foster parents and often in the presence of some social workers. The
contacts have been few and they have been limited normally to
two or three hours. Not once has the second applicant been permitted
to stay overnight with the first applicant and not even one night has
the first applicant been permitted to stay overnight in the foster
home. During the last five or six years the foster mother has, in
addition, travelled with Lisa and her own child for three months every
summer to Gotland, a holiday island in Sweden. The foster mother has
then refused to reveal the address and the telephone number. The
result of this substantial restriction in the right of contact between
the applicants has been that they have been deprived of what must be
considered to be part of normal family and private life, namely the
right to live together. It is thus obvious that the prohibition on
removal and the restrictions on the right of access has implied a very
serious interference with both the first and the second applicants'
right to family life and private life. The fact that the Swedish
authorities do not consider this right as a self-evident right is
clearly shown by the submissions of the Government.
The applicants refer in particular to the statement, made
by the County Administrative Board to the Regional Administrative
Court of Stockholm on 21 March 1983, that "the mother stands out as an
irreconcilable person who at any price wishes to gather around herself
the children which she has borne without any regard to the child's
emotional apprehensions." The fact that the Government invoke this
statement in this case cannot be understood in any other way than that
the Swedish State does not consider it to be a completely natural
thing, protected by Article 8 of the Convention, that a mother wishes
to gather the children which she has borne around her. The wish of
the first applicant, living in fully acceptable conditions, to gather
around her the children she has borne is thus questioned by the
Government.
As regards the question of whether the interference with the
applicant's right under Article 8 para. 1 of the Convention can be
regarded as justified under para. 2 of that Article, the applicants
submit the following:
The possibility of issuing and maintaining a prohibition on
removal is provided for in Section 28 of the Social Services Act.
This provision gives the Social Council the possibility of prohibiting
the removal of a child from a foster home either for a limited time or
until further notice, that is to say an indefinite time. The fact
that this possibility exists under Swedish law, i.e. to prohibit for an
indefinite time the natural parent from taking her child from her
foster home although there is no criticism against the home of the
natural parents, is a violation of Article 8 of the Convention. The
existence of this provision implies that the Swedish State has
abolished the parents' right to their children, as well as the
children's right to their parents and replaced these rights by a right
for the child to be taken care of by alien people appointed by the
social authorities.
Section 28 of the Social Services Act sets out as a condition
for a prohibition on removal that there is a risk which is not of a
minor nature that the child's physical and mental health would be
jeopardised if he or she were separated from the home. Acordingly,
it must be established under Swedish law that there is a risk to the
child's physical or mental health. The applicants submit that in this
case it has not been substantiated that there exists any real risk
which is not of a minor nature to the second applicant's physical and
mental health. The Swedish courts have only accepted unsubstantiated
allegations to this effect. The applicants find it remarkable that
the courts have not appointed any impartial expert to examine these
medical questions. They also find it remarkable that the child
psychiatrist, Dr. E.L., whose opinion has been the most important in
the case, has not even talked to the second applicant alone. She has
only examained the second applicant and always in the presence of the
foster parents. The applicants also note that in the Regional
Administrative Court Dr. E.L. expressed the general opinion that
children who had once been placed in a foster home should never be
returned to their natural parents provided the foster home was a good
one.
The applicants note, moreover, that no psychiatric diagnosis
has been made in respect of the second applicant. The foster parents
have alleged that the second applicant is a sensitive child. The
first applicant has contacted the second applicant's teacher in order
to ascertain the second applicant's abilities at school and she also
asked whether the second applicant showed any sign of a psychological
disturbance or other anxiety or insecurity at school. The teacher was
incredibly surprised to hear what had been alleged, namely that the
second applicant had some sort of psychological disturbance. The
teacher had never noticed any sensitivity as regards the second
applicant. She rather characterised the second applicant as a
completely normal child who showed no signs of psychological
disturbances. On the basis of the above, the applicants find it
incorrect that the Swedish courts accepted the allegation of the
social authorities that there exists a danger which is not of a minor
nature to the second applicant's mental and physical health if the
child is moved. They therefore allege that the prohibition on removal
has not been issued in accordance with Swedish law.
As no medical expert has been heard in the case, the
applicants get the impression that the courts have in fact made a
judgment on the basis of what is most suitable and the happiest
solution for the second applicant, i.e. whether it would be better for
her to stay in the foster home or whether it would be better for her
to move to her natural parents. However, such an approach is not in
conformity with Section 28 of the Social Services Act. Accordingly
the courts have not made their judgment according to Swedish law.
When the courts make their assessment on the basis of which
family could be considered to be the best family for the child, the
courts embark upon a dangerous road which violates parents' and
children's rights under Article 8 of the Convention.
In addition, all the courts, including the Supreme
Administrative Court, have expressed the opinion that, while the
prohibition on removal is in force, the social authorities should see
to it that the appropriate preparatory actions are taken with a view
to re-uniting the first and the second applicants. However, the
social authorities have not at all complied with this order of the
Supreme Administrative Court. Instead, the social authorities have
used the time to further strenghten the bonds between the second
applicant and her foster parents and they have even blackmailed the
first applicant with a view to trying to convince her to withdraw her
demands to have her child returned to her. Since the Social District
Council of Lidingö has failed to comply with the judgment of the Supreme
Administrative Court, it follows that the prohibition on removal has
not been applied in accordance with Swedish law. If the exercise of
official public power should be considered to be in accordance with
Swedish law, it must comprise Swedish authorities' compliance with
judgments of Swedish courts which have acquired legal force. This has
not happened in the present case.
As regards the question of whether the issue and maintenance of
the prohibition on removal was necessary in a democratic society for
the protection of health and morals, the applicants submit that it is
conceivable that situations exist where a child has been staying
in a foster home many years and during these years has not met its
natural parents. In order to avoid mental damage to a sensitive and
sick child by a sudden removal, it may be necessary to issue a
prohibition on removal which is limited to one or two months. In
such a situation these months must be used so as to give the child
an opportunity of meeting its natural parents often in order to
get to know them. The applicants submit that Section 28 of the Social
Services Act contains a limitation implying that a prohibition on
removal could only have been issued for a very limited time. As the
prohibition on removal has now in fact been used it can neither be
considered necessary nor justified in a democratic society. On the
contrary, the social authorities and the foster parents have used the
prohibition on removal for the purpose of convincing the second
applicant that Lisa should stay in the foster home. No measures
whatsoever have been taken by the social authorities or the foster
parents for the purpose of increasing contact between the first and
second applicants.
In the applicants' view it appears from the submissions and
accompanying documents from the Government, in particular from several
child psychiatric certificates, that the second applicant is
physically and psychologically a healthy girl who has developed
normally for her age and who has developed normally all through her
growing-up period. Nowhere in the certificate, is there any indication
of psychological disturbances or of psychological disease of any kind.
The fact is that the Swedish authorities have first
protracted the removal of the second applicant to her home for a
couple of years. Thereafter they declare that in view of the fact
that she has spent such a long time in the foster home it may be to
her detriment to move her. It is to be observed in that context that
it is the Swedish authorities and the foster parents, who have been
paid by the Swedish authorities and who have made it difficult to
establish a regular contact between the first and the second
applicant. The information which has been submitted concerning the
worry of the second applicant, after having met the first applicant,
is information coming from the foster parents. The first applicant
herself says that the second applicant very clearly shows a very
positive attitude towards the first applicant. The worry which the
second applicant may have shown afterwards can also be due to
disappointment over the fact that she could not stay with her natural
mother.
4. Article 2 of Protocol No. 1
The first applicant is a very active member of a religious
congregation called Philadelphia. The foster parents belong to the
Swedish church. There is a link between the Swedish church and the
State in the sense that a Swede who does not ask for resignation
from the Swedish church is automatically a member of that church.
Individuals who are religiously indifferent or against the Swedish
church do not care to ask for their resignation from the church. The
foster parents seem to despise christianity, an attitude which is
shown inter alia by the fact that the religious picture which the
first applicant has given to her child has been torn down from the
second applicant's room.
The practice in Sweden when placing children in foster homes
is that the social authorities do not even ask about the religious
belief of the natural or foster parents. This shows that the
Government do not even have the ambition to comply with their
obligations under Article 2 of Protocol No. 1. The first applicant
has for a long time clearly told both the foster parents and the
social authorities that she wishes the second applicant to be brought
up in the same christian belief as she. It is wrong to say that this
is something new. The first applicant has made this point long ago.
The Government have submitted that the second applicant
receives religious education in the foster home. However the foster
parents are members of the Swedish church. The belief and religious
convictions of the Swedish church are not at all identical to those of
the Philadelphia congregation and the first applicant's convictions.
It therefore follows that there has clearly been a violation of the
Convention since the second applicant has not been brought up in the
religious belief to which the first applicant adheres. Nor does the
first applicant have any possibility of having this effectively
examined by any Swedish authority.
5. Article 6 of the Convention
5.1. The request concerning access to the child
The Social Council's decision of 16 August 1985 concerning
access to the child was without doubt a "determination" within the
meaning of Article 6 of the Convention. The right of access and
contact between the parents and their children undoubtedly belongs to
"civil rights". There is no possibility of appealing against the
decision in question under Swedish law.
The fact that the Social District Council refused to decide
is precisely a "decision". One of the aims of Article 13, which
expressly provides "notwithstanding that the violation has been
committed by persons acting in an official capacity", must reasonably
be to prevent a State from having a system in which important
decisions for the individual are called "practical measures" instead
of "decisions" in order to impair the right of appealing against
violations of human rights.
As regards the question whether the issue of access between
the first and second applicants could have been included in the
request for termination of the prohibition on removal, the applicants
submit that the Swedish authorities and the courts have put the
applicants in the following impossible situation. The reason for
issuing the prohibition on removal until further notice is
that before that prohibition can be lifted the first and the second
applicant must have had more contact with one another. When the first
applicant asks the social authorities to be allowed to meet her child
more often and alone she is refused this. When she then asks for a
formal decision on access to the child the Social Council decides not
to decide on the question of access. In such a situation both
applicants' civil right to contact has been violated and there has been
a breach of Article 8 without any possibility, as required by Articles
6 and 13 of the Convention, of bringing this before a Swedish court.
In this deadlock there will not be any opportunity to terminate the
prohibition on removal since contact is refused through decisions
which cannot be challenged.
5.2. The request that the prohibition on removal be terminated
As regards the applicants' complaint that they have been
denied access to court in respect of the Social Council's decision of
18 January 1985 to refuse to terminate the prohibition on removal,
the applicants submit the following.
The first applicant appealed to the Regional Administrative
Court against the said decision. While the case was pending before
the Regional Administrative Court, the social authorities informed her
through the private consultant firm that as long as the first
applicant continued to bring proceedings in the matter she would not
be able to meet her daughter alone. However, if she withdrew her
actions she would be allowed to meet her daughter alone during some
weekends. Since the first applicant knew that one condition for being
reunited with her child was that they got to know one another and that
in order to get to know one another it was necessary to meet alone the
mother was brought into a situation of blackmailing. She was
therefore forced to withdraw her action before the Regional
Administrative Court and she has therefore in practice been prevented
from access to court. The applicants refute the Government's
allegation that there is a difference of opinion between the first
applicant and her representative. In respect of the fact that the
applicant withdrew her action before the Regional Administrative Court,
the social authorities have done nothing to keep their promise. Only
occasionally has the applicant been permitted to meet her daughter
alone.
The first applicant again in January 1987 introduced a fresh
application to the Social Council to the effect that the prohibition
on removal should be terminated. The Council decided not to take any
decision but to order further investigations, investigations which
ought to have taken place during the nine years during which the social
authorities have had the second applicant in their care. As a result,
the first applicant has been denied the examination by a court within
a reasonable time. The first applicant's request was introduced on
28 January 1985 and through the protracted blackmailing tactics of the
social authorities the applicant has, after almost two and a half
years, still not had any examination by a court.
It is added that the employees of the Social Welfare
Office of Lidingö have confirmed that they set up the same conditions
as the family consultants.
The applicants submit that the above is a form of blackmailing
which has as a result that the first applicant cannot continue to
bring proceedings concerning her child before Swedish courts. It is
alleged that this is a breach of Article 6 of the Convention.
6. Article 13 of the Convention
The applicants submit that the Parliamentary Ombudsman and the
County Administrative Board are not instances of appeal. They cannot
amend a decision of the Social District Council. It is rare that the
Ombudsman reports an official for prosecution, and even if he did,
it does not mean that the individual, whose human rights have
been infringed, will have the decision on the substance amended. The
fact that supervisory authorities exist, does not mean that there is
an effective remedy.
Moreover, as already indicated above, the possibility to
request that the prohibition on removal be discontinued does not
involve any possibility to appeal in respect of the right of contact.
Accordingly, there has been a violation of Article 13 of the
Convention.
7. Article 25 of the Convention
The applicants have not contended that there is any general
right to legal aid in the State concerned under the Convention. What
is alleged is that in this particular case the refusal of legal aid to
the first applicant has made it extremely difficult for the first
applicant to exercise her right of petitioning the European Commission
of Human Rights. As regards the Government's reference to the fact
that the Commission can grant legal aid, the applicants observe
that legal aid is not granted by the Commission at the preparatory
stage with an exchange of correspondence which is time-consuming.
THE LAW
1. As to Article 8 (Art. 8) of the Convention
The applicants complain that they have been victims of a
breach of Article 8 (Art. 8) of the Convention. They submit that the
judgment of the Supreme Administrative Court prohibiting the first
applicant from moving the second applicant from the foster home for an
indefinite period of time, despite the fact that the care had
terminated, together with the fact that the Social District Council
has not taken any measures to implement the transfer of the second
applicant to the first applicant and the refusal to decide on the
right of access for the first applicant, cannot be justified under the
terms of Article 8 para. 2 (Art. 8-2) of the Convention. The
applicants also submit that the mere existence of the legal provisions
enabling the Swedish authorities to issue the prohibition on removal
for an indefinite period of time constitutes a violation of Article 8
(Art. 8).
The Government submit that the legislation at issue, in
particular Section 28 of the Social Services Act, fulfills the
requirement of Article 8 (Art. 8) of the Convention. The fact that the
prohibition on removal can be issued until further notice can be
justified in certain cases. The Government also submit that the
measures taken in the present case, while constituting an interference
with the applicants' right to respect for their family life, are
justified under the second paragraph of Article 8 (Art. 8) as being necessary
in a democratic society in the interest of the second applicant.
Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and family
life ...
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."
Without making any firm submission to the effect that the
applicant has not exhausted domestic remedies as required by Article
26 (Art. 26) of the Convention, the Government have in general terms
submitted that there must be a limit to the scope of the examination
of a case before the Commission, and that it cannot be permitted to
add new complaints while proceedings are pending before the
Commission.
The Commission recalls that one of the applicants' complaints
under Article 8 (Art. 8) of the Convention is that the prohibition on removal
was issued for an indefinite period. The judgment to this effect was
passed by the highest court, the Supreme Administrative Court,
and there exists no possible appeal against this judgment.
The applicants have also complained under Article 8 (Art. 8) that,
irrespective of the contents of the judgment of the Supreme
Administrative Court, the social authorities have not taken sufficient
measures to ensure a quick return of the second applicant to the first
applicant. The applicants have moreover complained under Article 8
(Art. 8) that the first applicant has been refused access to the second
applicant; in this regard they have referred to the decision of the
Social Council not to regulate the right of access to the second
applicant. In these respects, the Government do not submit that there existed
any effective remedies within the meaning of Article 26 (Art. 26) of the
Convention.
The Commission consequently finds that the application cannot
be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of
domestic remedies.
It thus remains to be examined whether the facts of the case
constitute an interference with the applicants' right to respect for family
life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention and, if
so, whether any such interference is justified under the terms of Article 8
para. 2 (Art. 8-2) of the Convention as being "in accordance with the law" and
"necessary in a democratic society" for any of the purposes emunerated in
paragraph 2 of Article 8 (Art. 8-2).
The Commission has carried out a preliminary examination of
the above issues. It finds that they raise questions of fact and law
which are of such complexity that their determination should depend
upon an examination of the merits. This part of the application is
therefore not manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention and must be declared admissible, no other
ground for declaring it inadmissible having been established.
2. As to Article 2 of Protocol No. 1 (P1-2)
The applicants have also invoked Article 2 of Protocol No. 1 (P1-2) to
the Convention, which imposes on the State the obligation of respecting the
right of parents to ensure to their children education and teaching in
conformity with their own religious and philosophical convictions.
The Commission considers that the applicants' complaint in this
respect is closely related to the complaint under Article 8 (Art. 8) of the
Convention and that it must be declared admissible on the same
grounds.
3. As to Articles 6 and 13 (Art. 6, 13) of the Convention
The first applicant alleges violations of Article 6 (Art. 6) of the
Convention, which in its first sentence reads as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law."
The first applicant complains that in the proceedings
concerning the prohibition on removal she was not accorded a fair hearing as
required by Article 6 (Art. 6); that the proceedings were too long; and that
the decision of the Social District Council of 16 August 1985 not to regulate
the contacts between the two applicants denied access to court in respect of
the determination of the applicants' civil rights. In this regard the
applicants also allege a breach of Article 13 (Art. 13) of the Convention, in
that there exists no effective remedy in respect of the alleged breach. The
first applicant further complains that, in relation to her appeal to the
Regional Administrative Court against the Social District Council's decision of
18 January 1985 not to grant the request to have the second applicant returned
to her, she was subjected to a "blackmailing procedure", which forced her to
withdraw her appeal. She maintains that she has thereby been denied access to
court in breach of Article 6 (Art. 6) of the Convention.
The Government submit in reply that Article 6 (Art. 6) of the
Convention is not applicable to the proceedings in question and that
the complaint under Article 6 (Art. 6) of the Convention should therefore be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being
incompatible ratione materiae with the provisions of the Convention.
In the alternative the Government submit that this complaint is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
The Commission finds two issues under Article 6 (Art. 6) of the
Convention, namely
a. whether the decision of the Social District Council of
16 August 1985 was a "determination" of the first applicant's "civil
rights" and, if so, whether she had available to her a procedure
satisfying the conditions of Article 6 (Art. 6) of the Convention in respect
of that determination, and
b. whether in respect of the first applicant's appeal against the
Social District Council's decision of 18 January 1985 there has been a
denial of access to court.
The Commission has carried out a preliminary examination of
these issues. It considers that they raise difficult questions 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 also admissible.
4. As to Article 25 (Art. 25) of the Convention
Finally, the applicants complain that their right under
Article 25 (Art. 25) of the Convention to petition the Commission has been
violated as a result of the refusal of the Legal Aid Appeals Board to
grant legal aid for the purpose of bringing the application before the
Commission.
The Government submit that the Convention does not impose an
obligation on the Contracting States to provide prospective applicants
with legal aid for the purpose of bringing applications before the
Commission. This complaint should therefore be rejected.
Article 25 para. 1 (Art. 25-1), second sentence, provides that those of
the High Contracting Parties who have recognised the right of
individual petition undertake not to hinder in any way the effective
exercise of this right. The Commission finds no indication that the
applicants have been hindered in the submission of their present application.
Moreover, agreeing with the Government, the Commission considers that Article
25 (Art. 25) does not oblige Contracting States to grant legal aid for the
purpose of bringing an application under this Article.
For these reasons, the Commission
1. DECLARES THE APPLICATION ADMISSIBLE;
2. DECIDES TO TAKE NO ACTION WITH RESPECT TO THE COMPLAINT UNDER
ARTICLE 25 OF THE CONVENTION.
Deputy Secretary to the Commission Acting President of the Commission
J. Raymond J.A. Frowein