AS TO THE ADMISSIBILITY OF

Application No. 11900/85

by B. V.

against Denmark

        The European Commission of Human Rights sitting in private

on 4 May 1987,  the following members being present:

              MM. E. BUSUTTIL, Acting President

                  C. A. NØRGAARD

                  G. JÖRUNDSSON

                  S. TRECHSEL

                  B. KIERNAN

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

              Mrs G. H. THUNE

              Sir Basil HALL

              Mr  F. MARTINEZ

              Mr.  H. C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 24 July 1985 by

B. V. against Denmark and registered on 9 December 1985 under file N° 11900/85;

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

of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows.

        The applicant is a Danish citizen, born in 1947.  She is an

unskilled worker and resides at Hundested, Denmark.  Before the

Commission she is represented by Mr.  N. E. Thoregaard, a lawyer

practising at Frederikssund, Denmark.

        From the statements and from the documents submitted by the

applicant, the following appears to be established.

        The applicant is the mother of six children.  Her first

marriage was dissolved in 1972 and the applicant was awarded the

parental rights over the three children of that marriage.  The

applicant's second marriage broke down in 1979 and of the two children

of this marriage the applicant was awarded custody over her daughter A

whereas her ex-husband was awarded the custody rights over the other

child.

        The applicant's child A, born on 5 February 1974, as well as

the three children of the first marriage were taken into care on 30

October 1974 on the ground that maltreatment of the children had

been reported.  The applicant was later found guilty of maltreating

the children and received a suspended sentence for this.  The decision

to place the children in care was eventually confirmed by judgment of

28 April 1975 of the High Court (Landsretten).  The applicant's child

A was first admitted to a nursery home but as from 1 September 1975

she has been placed in care of foster parents.  The custody of the

three children of the applicant's first marriage was transferred to

the father by judgment of the High Court of 10 August 1976.

        In 1976 the applicant requested that her child A be returned

to her.  However, by decision of 3 June 1976 the Social Committee of

Frederikssund County (det sociale udvalg i Frederikssund kommune)

refused it.  This decision was upheld by the Social Appeals Board (den

sociale ankestyrelse) on 3 August 1976 and finally by the High Court

by judgment of 10 December 1976.

        The applicant's sixth child was born in 1979.  She lives with

the applicant and the man with whom she cohabits at Frederikssund.

        In 1982 the applicant tried again to have her child returned

to her.  However, by decision of 10 May 1982 the Social Committee

again refused the request.  The decision was upheld by the Social

Appeals Board on 6 July 1982 and confirmed by judgment of the High

Court of 6 October 1982.  The applicant applied to the Ministry of

Justice for leave to appeal the decision to the Supreme Court

(Højesteret).  Leave to appeal was, however, refused by the Ministry

of Justice on 26 November 1982.

        In 1983 the applicant requested for the third time that her

child A be returned to her.  However, on 31 May 1983 the Social

Committee again rejected the request and the decision was upheld by

the Social Appeals Board on 23 August 1983.  This decision was not

brought before the High Court.

        The following year the applicant submitted a new request to

the authorities in order to have her child A returned to her.  In

connection with the examination of the applicant's request the Social

Committee obtained a school report dated 10 April 1984, a report of

18 April 1984 from the Foster Home Group (plejehjemsforeningen) as

well as a statement from the school psychologists of 24 April 1984.

        On 2 May 1984 the Social Committee decided, in pursuance of

section 123 of the Social Aid Act (bistandsloven), that the

applicant's child should remain with her foster parents.

        Section 123 of the Social Aid Act reads as follows:

                "Section 123. (1) Where absolutely necessary in

        the interests of the welfare of the child, the local

        social committee may, until the child attains the age of

        18, without the consent of the person having the parental

        rights over the child, decide -

        (i)     to place the child away from home;

        (ii)    to commit the child to the psychiatric department

                of a hospital or in a mental hospital with the

                consent of the medical superintendent of the

                hospital, even though the general conditions

                prescribed in the legislation on hospitalisation

                of the mentally ill are not satisfied;

        (iii)   to refuse to let the child return home or place the

                child elsewhere, notwithstanding the fact that the

                initial care was established with the consent of the

                person having the parental rights over the child.

        (2)     Where the supportive measures according to

        subsection (1) may exceed one year, the local social

        committee shall reconsider the case.  Where the young person

        is 18 years of age, the supportive measures can only be

        maintained with his or her consent."

        The applicant appealed against the decision of the Social

Committee to the Social Appeals Board.  The applicant appeared before

the Appeals Board together with her lawyer on 31 July 1984.  It was

agreed to adjourn the case pending the outcome of a child

psychological examination as well as a report on the conditions in the

foster home.  These reports were submitted on 21 September and 13

August 1984 respectively.  The child psychological report concluded

that it was absolutely necessary for the further development of the

child that she remained with her foster parents the rest of her

childhood and youth.

        The Social Appeals Board examined the case again on 9 October

1984 on the basis of the above reports as well as two other reports

dated 31 August and 19 September 1984 and obtained from the Foster

Home Group and the school psychologists.  On the basis of the facts so

established the Social Appeals Board decided to uphold the decision of

the Social Committee since it found that the requirements for refusing

the return of the child to her mother were met.

        The applicant requested that the decision of the Social

Appeals Board be brought before the High Court.  The case was heard by

the High Court on 27 February 1985.  The applicant was present and

heard.  Furthermore, the Court had at its disposal all of the

above-mentioned reports as well as other relevant material such as

correspondence between the applicant's lawyer and the social

authorities and the minutes from the latter's meetings concerning the

case.  By judgment of the same day the High Court held, on the basis

of the evidence produced, that it was absolutely necessary out of

regard for the child's welfare that her return to the mother be

denied.

        The applicant did not file a petition with the Ministry of

Justice for leave to bring the judgment of the High Court before the

Supreme Court.

        During the period of time in which the applicant's child has

been placed in a foster home the applicant's access to her was

regulated as follows.  From 1975 to 1980 a visiting arrangement in the

foster home was provided for.  After the decision of the Social

Committee in 1982 not to return the child to the applicant it was also

decided to suspend the access right.  In October 1984 it was, however,

decided to grant it again to a certain extent.  From a letter of

5 September 1985 addressed to the applicant's representative it

appears that the Social Committee, on 26 April 1985, decided that the

applicant for the time being may see her daughter twice a year, in

January and in June, for two hours each time.  It does not appear that

the applicant has appealed against this decision to the County Appeals

Board (amtsankenævnet), a possibility open to her.

COMPLAINTS

        The applicant invokes Articles 3, 5 and 13 of the Convention.

She maintains that the violation of Articles 3 and 13 lies in the fact

that the authorities constantly refuse to return her child to her.

She considers it hopeless to continue to appeal against the decisions

taken since it is clear that the authorities have no intention to

reunite the family.  These intentions are clearly indicated in the

reports provided by the social authorities.  Such an attitude, she

maintains, amounts to degrading treatment.  The attitude expressed by

the social authorities is accepted by the High Court which has now

rejected her case three times.

        Finally the applicant points out that the authorities' main

argument is the fact that a long period of time has passed and that

for this reason it would be to the detriment of her daughter to be

returned to her.  However, the applicant maintains that she has

constantly tried to have her child returned to her and that it is the

authorities themselves who have created this situation.

THE LAW

1.      The applicant complains in substance that the refusal to

return her child to her is a violation of the rights secured to her

under the Convention.  The Commission finds that this complaint falls

to be examined under Article 8 (Art. 8) of the Convention which reads:

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

        family life, his home and his correspondence.

        2.   There shall be no interference by a public authority

        with the exercise of this right except such as is in

        accordance with the law and is necessary in a democratic

        society in the interests of national security, public safety

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

        of disorder or crime, for the protection of health or morals,

        or for the protection of the rights and freedoms of others."

        The Commission finds that the refusal to return the child to

the applicant interfered with her right to respect for her family life

as ensured by Article 8 para. 1 (Art. 8-1).

        It must therefore be examined whether this interference was justified

under the terms of Article 8 para. 2 (Art. 8-2).  The Commission finds that the

interference was "in accordance with the law", namely the Social Aid Act in

particular Section 123 of the Act.  The Commission furthermore finds that the

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

the interests of the child which in this case fall under the expression "for

the protection of the rights and freedoms of others".  It remains to be

determined whether the interference was "necessary in a democratic society"

having regard to the interests of the child.

        When determining whether or not the refusal to return the

child to the applicant was "necessary in a democratic society" having

regard to the interests of the child, the Commission observes that it

is not its task to take the place of the competent national courts but

rather to review under Article 8 (Art. 8) the decisions which have been taken

by the domestic authorities and to ensure that these decisions have

been reached without unfairness or arbitrariness.

        It is difficult to ascertain what precisely is in the best

interests of a child.  The Commission stresses that the issue in these

cases is not only what is the best solution for the child.  Under

Article 8 (Art. 8), an interference with the right of the parent to take care

of his or her child cannot be justified simply on the basis of it

being better for the child to be taken care of by certain foster

parents.  In order to justify such an interference, it is necessary

under the terms of Article 8 (Art. 8) that the State demonstrate sufficient

reasons for the decision to take care of a child.  Those reasons

should be of such a weight as to render the care "necessary in a

democratic society".

        The Commission has first had regard to the wording of the

relevant legal provisions, in particular section 123 of the Social Aid

Act.  Under this provision a child may be placed away from home where

this is absolutely necessary for the welfare of the child.  The

Commission finds no indication that the Danish legislation as such

would fall short of the requirements for a justification of an interference

under Article 8 para. 1 (Art. 8-1).  The Commission also recalls the procedure

operating in Denmark where the arrangements made must be re-examined by the

Social Committee every year in order to clarify whether the measure is still

necessary.  As in the present case the Social Committee's decision may be

brought before the Social Appeals Board where the applicant, assisted by legal

counsel, has the opportunity to bring forward any issue which might be of

importance for the outcome of the case.  Finally the Social Appeals Board's

decision may be brought before the court which ultimately decides on the

necessity of the arrangement after an oral hearing during which the applicant

is assisted by a court-appointed legal counsel.

        The Commission finds in these circumstances that the decision

to refuse to return the child to the applicant was taken following a

thorough investigation and a procedure at various administrative as

well as court levels which are sufficient to exclude the assumption of

unfairness or arbitrariness.  However, the Commission must also

satisfy itself that the factual basis on which the decision was based

was such as to justify the interference.  In the present case the

Commission recalls that the social authorities carried out a child

psychological examination on the basis of which it was concluded that

it appeared absolutely necessary for the further development of the

child that she remained with her foster parents.  Furthermore reports

were obtained from the Foster Home Group and from the school

psychologists.  It was on the basis of these reports that the measure

of care was maintained.

        It is true that the final decision, in addition to the other

evidence obtained during the court proceedings, was based on opinions

which were expressed by different experts, as well as the conclusions of

social reports obtained for the purpose.  However, such an assessment of

the situation, in particular the situation of the child in question,

must be made.  The Commission finds that in deciding whether to keep the

child in care the national authorities are to be recognised as having a

certain discretion, since it is in the first place for the national

authorities to evaluate the evidence adduced before them in a particular

case.  In the present case it appears from the documents submitted that

all reports obtained indicated that it would endanger the welfare of the

child if she was to live with her mother.

        The Commission is of the opinion that, when deciding to keep

the child in care on the basis of the conclusions in the above

reports, the national authorities did not go beyond the discretion

they had to evaluate this evidence.

        On the basis of the above considerations the Commission finds

that it has been demonstrated that the decision to keep the

applicant's child in care can be regarded as "necessary in a

democratic society" within the meaning of Article 8 para. 2 (Art. 8-2)

in the interests of the child.

        It follows that this part of the application is manifestly

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

Convention.

2.      The Commission has finally examined the applicant's remaining

complaint as submitted by her under Articles 3, 5 and 13 (Art. 3, 5, 13) of the

Convention.  However, this examination has not disclosed any

appearance of a violation of the Convention and it follows that this

part of the application is also manifestly ill-founded within the

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

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

     Secretary to the Commission     Acting President of the Commission

             H. C. KRÜGER                   (E. BUSUTTIL)