Lexploria

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

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ERIKSSON v. SWEDEN

ERIKSSON v. SWEDEN