The European Commission of Human Rights sitting in private on 4 March

1986, the following members being present:

                     MM.  C. A. NØRGAARD, President

                          G. SPERDUTI

                          J. A. FROWEIN

                          G. JÖRUNDSSON

                          S. TRECHSEL

                          B. KIERNAN

                          A. S. GÖZÜBÜYÜK

                          A. WEITZEL

                          J. C. SOYER

                          H. G. SCHERMERS

                          G. BATLINER

                          H. VANDENBERGHE

                      Mrs G. H. THUNE

                      Sir Basil HALL

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

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art 25);

Having regard to the application introduced on 5 September 1985 by

U.A. and M.K. against Sweden and registered on 28 September 1985 under

file No. 11776/85;

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 they appear from the submissions of the

applicants' representative, may be summarised as follows:

The applicants are a couple, Mr. A., born in 1955 and Mrs. K., born in

1956.  They are both resident at Norrköping. Mr. A. is a full-time

driver by profession.  Mrs.  K. is a housewife.  She stays at home and

takes care of the couple's two children born in August 1980 and

October 1981 respectively.  The applicants are represented before the

Commission by Mrs.  Mona Nilsson who is a teacher at Karlstad.

Previously the applicants received social welfare benefits in the form

of financial subsidies because Mr.  A.'s earnings had been

insufficient for the maintenance of the family.  On 20 February 1984

the Northern Social District Council (Norra sociala distriktsnämnden)

of Norrköping decided to reject an application from the applicants for

further financial subsidies.  As reasons it was indicated that the two

children had been given priority for placement at a day home care

centre but that the parents had declined to accept the offer,

referring to the fact that Mrs.  K. did not wish to apply for

employment.

The applicants appealed to the Regional Administrative Court

(länsrätten) of the County of Östergötland.  In a judgment of 19 April

1984 the Regional Administrative Court accepted the appeal and

referred the case back to the District Council for re-examination.

The Court stated as follows in its reasons:

"According to Section 6 of the Social Services Act

(socialtjänstlagen), the individual has the right to assistance from

the Social Council for his livelihood and for other aspects of his

living, if his needs cannot be secured in any other way. The District

Council has refused assistance referring to the fact that the family

would be able to solve its economical difficulties itself if Mrs.

K. took employment and the children were placed at the day home

which had been offered.  The need of the applicants could be satisfied

in this way.  According to Section 1 of the Social Services Act, the

social service of society should be based on respect for the

self-determination and integrity of the individual.  According to

Section 12 of the Social Services Act, the Social Council shall

endeavour to ensure that children and young persons grow up in good

and secure conditions.  The couple has apparently in this case made

the assessment that it is better for the children if Mrs.  K.

stays at home instead of leaving them in a day home while Mrs. K.

takes up employment.  Such an assessment can of course be discussed

but according to the opinion of the Regional Administrative Court it

ought to be respected on the condition that it is really based on

consideration for the children. Nothing appears however which would

suggest that it is not so based.  In such conditions it would not be

in line with the intentions of the Social Services Act to make such a

harsh judgment as the District Council has made.  The best interests

of the children must be given priority before the general principle

that the one who is not available for the labour market is not

entitled to public assistance.  This principle carries no weight in

such a context.  The Regional Administrative Court therefore finds

that the fact that Mrs.  K. has chosen to stay at home with the

children instead of taking up employment should not disqualify her for

receiving assistance according to Section 6 of the Social Services

Act."

The Northern Social District Council of Norrköping appealed to the

Administrative Court of Appeal (kammarrätten) of Jönköping, which in a

judgment of 3 July 1984 rejected the appeal.  In its judgment the

Administrative Court of Appeal stated inter alia as follows:

"There is no general right to be a housewife at the cost of the social

services.  It cannot however always be required that both parents in a

family with children should take up gainful employment.  The

individual circumstances in the particular case must be decisive, even

if, according to the general advice of the National Social Welfare

Board (socialstyrelsen), the main rule ought to be that the Social

Council can choose to give assistance in the form of taking care of

the children rather than giving it in the form of financial

assistance. - In this case the children are still so small that the

care of them and the home must be regarded as a full-time employment.

In view of this, and of the fact that the mother, as far as

investigations show, does not have any training or professional

experience which makes her attractive on the labour market, public

assistance to the family ought to be given in the form of financial

assistance for a further period."

The District Council lodged a further appeal with the Supreme

Administrative Court (regeringsrätten), which in a judgment of

15 March 1985 accepted the appeal and quashed the judgments of the

lower courts and confirmed the decision of the District Council.  The

judgment was adopted by a vote of three to two.  In its reasons the

Supreme Administrative Court stated as follows:

"U.A. and M.K. cohabit.  They have two children

born in August 1980 and October 1981.  Ulf A. has full

employment, while Monica K. stays at home and takes care of the

children.  According Section 6 of the Social Services Act the

individual is entitled to assistance for his livelihood and other

aspects of his living if his needs cannot be provided for in any other

way.  The assistance should ensure to the individual a reasonable

level of living. From the investigation in the case it appears that

the income of U.A. and M.K. is so low that the

family cannot thereby be ensured a reasonable standard of living.

Accordingly there is a right to assistance according to Section 6 of

the Social Services Act.

The Social Council has, as assistance, offered the family child

care places in order to make it possible for Monica K. to

apply for employment.  The family has however refused the offer

and instead asked for financial assistance in order to make it

possible for Monica K. to be at home and take care of the

children.  She has accordingly not reported herself as willing to

apply for employment.

From the preparatory works to the Social Services Act it appears

that a person who is able to work and who can be provided with

appropriate work, is only entitled to assistance according to

Section 6 of the Social Services Act temporarily and until such

time as he can take care of his maintenance himself (Government

Bill 1979/80: 1 Part A p. 526).  In the case law it has also been

established that an applicant for assistance, who without a valid

reason refuses to take up employment, can be refused assistance

according to Section 6 of the Act (cf. Yearbook of the Supreme

Administrative Court 1983 2:70 and the Supreme Administrative

Court's judgment of 28 December 1984, case no. 4243/83).

Furthermore, it is expressed in the preparatory works to the

legislation that the individual does not have an unconditional

right to receive a specific form of assistance.  When choosing

the measure of assistance, consideration must be given to the

alternative resources available within the municipality

(Government Bill 1979/80: 1 Part A p. 185).

It has not been shown in this case that Monica K. has had

any other reason for her failure to apply for employment than her

own wish to take care of the children or that the children, for

special reasons, are in need of her personal education and care.

In these circumstances, the Social Council must be considered to

have fulfilled its obligation to grant the family necessary

assistance under Section 6 of the Social Services Act by assigning

to the children, with priority, places at the day home care

centre."

The two dissenting judges rejected the appeal while basing themselves,

inter alia, on the following reasons:

"It is not in dispute that the family which is seeking assistance and

which consists of able adults and two children, aged four and three,

finds itself, as a result of the fact that only one of the parents has

gainful employment, in a situation with so limited economical

resources that the family can only attain a reasonable level of living

if it receives assistance from the public authorities.  Accordingly

the family is entitled to assistance under Section 6 of the Social

Services Act.

Two forms of assistance have been at issue in this case: On the one

hand, financial assistance which is being requested by Mrs.  K.

but which has been refused by the District Council, and on the other

hand, assistance in the form of providing the children with assistance

under the child care system of the municipality, whereby both parents

would be able to have gainful employment to the extent that such

opportunities present themselves.  The last-mentioned form of

assistance has been offered to the parents, but the parents, after

having tried a family care home for a certain initial period of time,

has then returned to taking care of the children themselves.

The offer of places in the day home care centre has been made in the

form of the offer of priority.  It appears therefore that the

municipality does not have a surplus of day home places.  The use of

this offer would accordingly mean that one or two other families, who

have expressed wishes about day home places, would have to stand back.

The District Council has, in support of its standpoint, stated

that the individual cannot have a right to economical assistance,

if he does not try, according to his own ability, to contribute

to his livelihood.  The person who can work is also obliged to

apply for employment.

As far as it appears from the case file the wish of the parents

is based on the fact that they themselves wish to take care of

the children, since they consider that the children need their

mother at home for some more time, when the children are small.

There is nothing to indicate that the mother would not be willing

to work.  The investigation in the case does not give any ground

for criticising the parents' ability to care for the needs of the

children in different aspects.

In view of what has just been said, the issue in the case will be

whether the Council can be relieved of its duty to give the

family economic assistance as a result of the parents having

rejected the offer of day home places and the consequent obstacle

to Mrs.  K. taking up gainful employment.  There is no

statutory duty or any other duty imposed on an individual to take

up gainful employment, but it is an obvious point of departure

that everyone should, according to his own ability, take

responsibility for his livelihood.  The decisive issue in the

case must therefore be whether the parents have any acceptable

reason for their standpoint that the children are an obstacle to

both parents taking up gainful employment.  If there is a valid

reason, the situation in which the family finds itself is a

factual condition which must be accepted when assessing the

family's right to assistance and the Council's corresponding

obligation to give such assistance.  On the other hand, if the

family has no valid reason for its standpoint, it must be

considered completely normal that the family, in the first place,

uses the opportunities to change its factual situation in order

to increase its economic resources by taking up gainful

employment also by efforts on the part of Mrs.  K. on the

labour market and that it takes advantage of the child care

offered by the public authorities.  Chapter 6 Section 1 of the

Parental Code (föräldrabalken) in its wording from 1 July 1983

provides that children have the right to care, security and good

education.  In the same chapter, Section 2, it is provided that

children are under the care of the parents.  Furthermore it is

said that the one who has the care of the child has the

responsibility for the child's personal circumstances and shall

see to it that the child's needs according to Section 1 are

satisfied.  The custodian, according to Section 11, has "a right

and an obligation to decide on questions regarding the child's

personal circumstances".  In Section 14 it is recalled that the

custodian has a right to receive support and help from the Social

Council according to the provisions of the Social Services Act.

In our opinion, the question of whether the parents in the

present case have a valid reason for their standpoint to decline

day care places in order to be able, instead, to take care of the

children must be judged against the background of the

far-reaching responsibility for the children's personal

circumstances which the Parental Code imposes on the custodian.

Furthermore, as the Regional Administrative Court has recalled in

its judgment, the public social service according to the express

provision of the first section of the Social Services Act should

be built on respect for the self-determination and the integrity

of the individuals.  From Chapter 6, Section 14 of the Parental

Code, where the custodian's right to receive support and help

from the Social Council is recalled, it appears that the

custodian has the primary responsibility.  In view of what has

been said above it cannot be considered compatible with the

object and purpose of the Parental Code's provisions on care of

children or with the tasks, which the Social Services Act has

imposed upon the public social service that the Social Council in

a case like the present one can disapprove of the parents'

judgment as to how they should fulfil their obligations and

exercise their rights as custodians.  The District Council has

accordingly to consider the present application about financial

assistance starting from the fact that one of the parents in the

family takes care of the children at home.

We grant the appeal."

COMPLAINTS

The applicants allege a violation of Art. 8 of the Convention (art 8).

The applicants' application for financial assistance from the District

Council was refused because Mrs.  K. wished to stay at home and

take care of her two small children.  It is the applicants'

submissions that if the right to respect for family life means

anything, it must be applicable in this situation.  The applicants

further submit that their rights to respect for family life have been

interfered with by the decision of the Supreme Administrative Court

and that this interference can find no justification in Art. 8, para.

2 of the Convention (art 8-2).  It is submitted that the true aim of

the interference is to promote equality between the sexes as an

absolute overriding dogma, that this dogma is believed to be justified

simply because it is supposed to lead to a social society via the

creation of a new type of human species, a socialist man, and that the

purpose of the interference indirectly is to collect all small

children in institutions where they will be helplessly exposed to

politically overcharged, extremely selective and unbalanced views of

the world via teaching of the kind illustrated by the pedagogical

package "The World at the Nursery School".  The applicants submit that

such aims are in themselves violations of Art. 17 and 18 of the

Convention (art 17, art. 18).

THE LAW

The applicants have alleged a breach of Art. 8 of the Convention

(art 8) on the ground that they were refused financial support from the

Social Council and that the reason therefor was that Mrs.  K.

wished to stay at home and take care of her two children instead of

placing them in a day home care, as proposed by the Social Council.

Art. 8 of the Convention (art. 8) reads as follows:

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

life, his home and his correspondence.

2.      There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law

and is necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for

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

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

The first question to be decided is whether the facts of the case

disclose an interference with the applicants' right to respect for

their family life.  The Commission observes that the issue in the

proceedings in the present case concerned the question whether the

applicants should be granted financial assistance or not.  Under

Swedish law, Section 6 of the Social Services Act, the applicants

were, which is not in dispute in the case, entitled to assistance from

the Social Council because of the low income in the family.  The

Social Council offered the applicants places in the day home care for

the two children in order to allow Mrs.  K. to take up gainful

employment and thereby to increase her income to a sufficient level.

The Supreme Administrative Court resolved that the Social Council had

discharged its obligation under the Social Services Act by offering

these day home places to the applicants.  The applicants however

rejected this offer and wished to have financial assistance instead in

order to allow Mrs.  K. to stay at home.

The Commission observes that the Convention does not as such guarantee

the right to public assistance either in the form of financial support

to maintain a certain standard of living or in the form of supplying

day home care places.  Nor does the right under Art. 8 of the

Convention (art. 8) to respect for family life extend so far as to

impose on States a general obligation to provide for financial

assistance to individuals in order to enable one of two parents to

stay at home to take care of children.

As to the facts of the present case, the Commission notes that the

applicants have decided that one of the parents should stay at home

and take care of the children.  Such a decision involves, for all

couples, a financial burden, since they will have to live on only one

income from gainful employment.  The facts of the present case do not

suggest that the authorities have in any way disrespected the

applicants' decision to take care of their children themselves.  It is

true that under Swedish law the applicants are entitled to public

assistance in order to obtain a reasonable standard of living, and

that they were granted such assistance in the form of day home places

but refused financial assistance, but this cannot be interpreted as a

failure to respect their family life.

The decision of the authorities on this matter must, as the applicants

have noted, be seen in the context of the general development in

society which is characterised by a larger degree of equality between

sexes and an increased number of women seeking employment on the

labour market.  It is true that as a result of the authorities'

decision the applicants had, if they wished to avail themselves of

public assistance, to accept assistance in the form of day home

places.  The applicants may well have regarded this as an indirect

pressure on Mrs.  K. to take up gainful employment. Nevertheless,

this fact cannot raise any issue under Art. 8 (art. 8). Moreover, the

Commission notes that the applicants do not seem to be in such a

situation of need that the solution which they have chosen is not

workable.  Nor is there any other indication that the refusal of

financial assistance in the circumstances of the present case could

involve a lack of respect for the applicants' family life.

Accordingly, the Commission considers that the applicants' complaints

do not disclose any interference with their rights under Art. 8, para.

1 of the Convention (art. 8-1).  It is therefore not necessary to

enter into an examination of the question of a possible justification

under para. 2 of Art. 8 (art. 8-2).

It follows that the application is manifestly ill-founded within the

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission         President of the Commission

      (H.C. KRÜGER)                        (C.A. NØRGAARD)