FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62402/00 by Ann-Louise HANSSON and Rebecca HANSSON against Sweden

The European Court of Human Rights ( Fourth Section) , sitting on 13 November 2003 as a Chamber composed of

Mr M. Pellonpää , President , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar

Having regard to the above application introduced on 30 May 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Ann-Louise and Rebecca Hansson are Swedish nationals, who were born in 1964 and 1993 respectively. They live in Värnamo, Sweden. They were represented before the Court by Mrs Siv Westerberg, a lawyer practising in Gothenburg.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant, henceforth called A, is the mother of the second applicant, henceforth called R. Since R was born in 1993, the applicants have frequently received support and child care assistance by the social authorities.

By a County Administrative Court ( Länsrätten i Jönköpings Län ) judgment of 26 June 1997, R was taken into public care pursuant to the Act with Special Provisions on the Care of Young Persons ( lagen med särskilda bestämmelser om vård av unga , 1990:52 - hereafter the 1990 Act). A, the Social Board (socialnämnden) and five witnesses were heard, among the latter a consultant specialised in child and youth psychiatry. The court found it established that A was very suspicious and in conflict with many persons; that A involved R in her conflicts; that A did not set any boundaries to R; that consequently R’s behaviour had become socially unacceptable; that there was a palpable risk of impairment of the health and development of R due to lack of proper care; that A had failed to provide proper care; and that A refused to receive assistance from the social authorities.

On appeal, the judgment was confirmed by the Administrative Court of Appeal ( Kammarätten i Jönköping ) on 28 August 1997. The Supreme Administrative Court ( Regeringsrätten ) refused leave to appeal on 9 January 1998.

On 14 August 1997 both applicants were placed at a care centre called Elisabethgården, specialising in treating and taking care of mothers and their children. On 4 May 1999 A was discharged from the centre, on demand of the staff, who found her behaviour obstructive. On 12 May 1999 the Social Board decided to place R with a foster family. Moreover, the Board exceptionally ordered a temporary prohibition on contact between A and R and the concealment of the foster family’s identity. On appeal to the County Administrative Court, A requested that the orders to take R into public care and to place her with a foster family be revoked. She consented to care continuing on a voluntarily basis entailing placement of both of them at a centre. Also, she requested that the prohibition on contact between her and R be revoked.

A stated among other things that she would be more motivated to undergo treatment if the care continued on a voluntarily basis. She admitted having had conflicts at Elisabethgården but found that this could be imputed mainly to her disagreements with the superintendent on therapy issues. The disputes that she had had with other persons there were in her opinion irrelevant. Also, recently she had commenced seeing a psychologist.

The Social Board, a social worker and the superintendent of Elisabethgården, all stated among other things that A lacked insight in R’s need for care; that A exhibited an increasingly aggressive, harassing and even hateful behaviour towards others, which had resulted in Elisabethgården discharging her; that A constantly involved R in her conflicts to the detriment of R’s mental health; and that in their opinion the foster family would not be able to stand the strain that contact with A unavoidably would entail.

A teacher, who had seen R and A approximately once a month from the summer of 1997 until the end of 1998 stated inter alia that in her opinion A and R’s relationship was very close, and that they were very dependent on each other.

A clergyman, who regularly had met A and R during their stay at Elisabethgården, stated inter alia that in the beginning they were very deviant, vociferous and restless. However, they had developed in a positive direction.

By judgment of 2 July 1999 the County Administrative Court found against A, stating as follows:

It is undisputed in the present case that [R] is in need of care. Firstly [A] has requested that the care order be revoked in order that care continues on a voluntarily basis by placing her and [R] at a treatment centre. The care centre Elisabethgården has stated that it does no longer wish to receive [A]. Accordingly, continuing care at Elisabethgården is excluded. No elements have been brought to light in the present case, which could indicate that treatment at another care centre would have any prospect of success.

The Social Board has assessed that now only the placement of [R] with a foster family can provide the needed care. [A] cannot accept such a placement. Against this background, there are no possibilities left to continue care on a voluntary basis; consequently [the court] refuses to revoke the care order. 

Secondly, A has claimed that the court revokes the decision to place [R] with a foster family. Such a claim entails that public care continues at Elisabethgården or at another appropriate treatment centre, placing mother and daughter together. As stated before, however, continuing care at Elisabethgården is no longer an option, and care at another treatment centre does not appear to be a realistic alternative. In these circumstances in the Social Board’s opinion the needed care can only be provided by a foster family. The court shares this view. Accordingly, it lacks reasons to revoke the Social Board’s decision as to the replacement [of R].

Finally, as to revocation of the prohibition on contact and the concealment of [R’s] whereabouts it must be emphasised that the provisions authorising the imposition of such measures must be interpreted restrictively. Having regard to the statements submitted on [A’s] intriguingly and aggressively behaviour, to the detriment of the intended and needed treatment of [R], the court finds that the Social Board had justified cause for its decision temporarily to prohibit contact. Moreover, taking into account the information submitted as to the risk that [A] may go underground with her daughter, and to the foster family’s prospects of handling contact with [A], the court finds that the Social Board had justified cause for its decision to conceal [R’s] whereabouts. It is definitely appreciated that [A] now is in touch with a psychologist, but it has not been established that she has made such progress, that could result in considerations of revoking the said restrictions. [A’s] appeal is to be refused in its entirety.

The judgment was upheld on appeal on 9 September 1999 by the Administrative Court of Appeal. Leave to appeal was refused on 1 December 1999 by the Supreme Administrative Court.

According to the 1990 Act the social authorities are under an obligation to review regularly whether public care is still necessary. By decision e.g. of 10 November 1999 they upheld public care and the temporary prohibition on contact, which on appeal was confirmed by the County Administrative Court on 10 December 1999.

A appealed to the Administrative Court of Appeal, before which A invoked two statements of 21 December 1999 and 2 January 2000, respectively, from a psychiatrist, GL, who found it established that A did not suffer from any serious mental disorder, and that further examination was necessary in order that he assess whether she suffered from a slight mental illness or disorder. Also she invoked an opinion by a professor, BE, who gave his view on the social authorities’ handling of the case.

A was heard before the court and explained inter alia that allegedly the foster family was maltreating R. Her daughter had lost weight, and e.g. when in July 1999 A had found the foster family’s residence, she had paid R a visit, during which she found out that R had bruises all over because she had been beaten up by the foster parent’s two boys.

The Social Board invoked inter alia a psychiatric statement of 20 March 2000 on R, in which a consultant, TG, and a psychiatrist, ACS, stated that R’s mental state had improved; that she had expressed a wish to remain with the foster family; and that she objected to live with her mother. They found that R had been gravely deviant during several different periods in her upbringing, and they recommended that the placement with the foster family be prolonged in order that R’s commencing positive development continued. Moreover, they recommended that access be established between mother and daughter, however, in a foreseeable, safe, and clear setting.

As regards A, the Social Board invoked a statement procured by a psychologist, PM, and a consultant UL, who found that A did not exhibit any clear signs of a serious mental illness, rather her difficulties concerned a personality disorder, most likely of a paranoid sort.

Other statements on A were submitted, among others by two psychiatrists, IP and AB.

By judgment of 9 May 2000 the Administrative Court of Appeal refused to revoke the care order on the following grounds:

“...Having regard to the statement by ElisabethgÃ¥rden, and several psychiatrists, IP, AB, and UL, the court finds that [A] does have weaknesses; some form of personality disorder, which influences her behaviour towards other people and her ability to provide [R] with a favourable development. [A] lacks insight in her own need for help, and as long as she does not appear at summoned and necessary examinations, and commence treatment, she cannot appropriately take responsibility for the care of [R]. The statements submitted by GL and BE do not alter this assessment. [R] has a need for special care, which [A] cannot [presently] provide her”        

However, the Administrative Court of Appeal revoked the prohibition on contact and ordered that access be initiated and progressively increased, commencing as from 20 May 2000 with two hours every third Saturday. It further noted that according to Section 11 of the 1990 Act it is at the social authorities’ discretion to decide where access is going to take place, the exact time, and who are to be present. A’s request for leave to appeal against the judgment was refused by the Supreme Administrative Court on 27 July 2000.

The social authorities decided that access should take place in the foster family’s home and be subject to surveillance. On 14 June 2000 the social authorities increased A’s access to three hours every third Thursday. The change of weekday was explained by lack of staff resources and the fact that the social authority office was closed during weekends. A brought this decision before the County Administrative Court, and claimed that the court intervened by an interim measure. The court refused this on 18 July 2000. A appealed to the Administrative Court of Appeal, which by decision of 31 July 2000 found for A and maintained that access take place on Saturdays as set out in its judgment of 9 May 2000.

Moreover, A initiated proceedings before the County Administrative Court claiming inter alia access every weekend from Friday to Sunday at a place a her discretion and without any surveillance. By judgment of 9 August 2000 the County Administrative Court granted access four hours every second Saturday. The exact time, place and whom to be present remained at the social authorities’ discretion. The judgment was upheld on appeal by the Administrative Court of Appeal on 26 September 2000. Leave to appeal was refused by the Supreme Administrative Court on 26 January 2001.

In the period between July 1999 and October 2001, A initiated more than twenty sets of various court proceedings claiming e.g. the care order revoked, change of foster family, access increased, and change as to the time and place of access.

It emerges from a judgment of 23 May 2001 by the County Administrative Court that access had functioned well since August 2000; that A had access four hours every second Saturday under surveillance; and that it took place by turns at the foster family’s home in Älmhult and at A’s home in Bredaryd. Also, in accordance with a recommendation from a psychiatrist, the social authorities had made several attempts to unite the foster family and A, but this had failed due to A’s resistance. As to one of A’s claim, that access took place every weekend from Friday 6 p.m. until Sunday 6 p.m., and during all school holidays, she submitted among other things that Älmhult was not accessible by public transportation. The court found against her on all points, and stated inter alia that it was not for the court to decide on her transport. On appeal, A abstained from submitting that Älmhult was not accessible by public transportation. By judgment of 8 October 2001 the Administrative Court of Appeal increased access to six hours every second Saturday. On 16 October 2001 the applicant A requested that the Supreme Administrative Court grant her leave to appeal against the judgment. It appears that leave to appeal was refused.

B. Relevant domestic law

The decisions disputed in the present case were taken under the Act containing Special Provisions on the Care of Young Persons 1990 ( lagen 1990:52 med särskilda bestämmelser om vård av unga – “the 1990 Act” ).

Compulsory public care may be ordered under the 1990 Act (Section 1 § 2) and is to be provided, inter alia , if there is a clear risk of impairment of the health or development of a person under eighteen years of age due to ill ‑ treatment, improper exploitation, lack of care or any other condition in the home (Section 2).

The Social Board may decide to take a child into care immediately on a provisional basis if later court proceedings concerning compulsory care cannot be awaited on account of the risk to the child’s health or development or of the risk that the continuing examination will be obstructed (Section 6). Such a decision shall be submitted to the County Administrative Court for approval (Section 7).

An order committing a child to care on a permanent basis is issued by the County Administrative Court on application by the Social Board. The application shall include a description of the circumstances concerning the child, measures previously taken and the care that the Social Board intends to arrange (Section 4).

Once public care has been ordered, it is executed by the Social Board, which decides on the details of the care. In particular, the board shall decide on how the care is to be arranged and where the child is to live (Section 11).

The council shall ensure that the child’s need of contact with parents and other custodians is met to the utmost possible extent. The council may decide on how this access is to be arranged pursuant to Section 14 of the 1990 Act, which provides:

“The Social Council is responsible for accommodating as far as possible the young person’s needs of contact with his parents or other person who has custody of him.

If it is necessary in order to achieve the purposes of care measures taken under this Act, the Social Council may

1. decide how the right of access to the young person shall be exercised by a parent or other person who has custody of him, or

2. decide that the young person’s place of residence may not be disclosed to the parent or custodian.

The Social Council shall reconsider at least once every three months whether such decision as referred to in the second paragraph continues to be needed.”

When public care is no longer necessary, the Social Board shall order the termination of the care (Section 21).

Decisions taken by the Social Board as to, inter alia , the continuation of the care and the parents’ access may be appealed against to the County Administrative Court (Section 41). The County Administrative Court may review a decision by the Social Council in so far as its subject-matter is covered by Section 14 of the 1990 Act (or Section 16 of the 1980 Act; see Yearbook of the Supreme Administrative Court, Regeringsrättens Årsbok 1984, 2/38).

The court’s decisions and judgments may be appealed against to the Administrative Court of Appeal and the Supreme Administrative Court (Section 33 of the Administrative Procedure Act ( Förvaltningsprocesslagen , 1971:291)).

COMPLAINTS [Note1]

The mother A complained, on her own behalf and on behalf of her daughter R;

1. That the authorities by a) taking R into public care and b) by refusing to revoke the care order violated Article 8 of the Convention.

1.c) That the prohibition on contact infringed their rights under Article 8 of the Convention.

1.d) That the social authorities have failed to comply with the County Administrative Court’s judgment of 9 August 2000 by changing the day of access from Saturday to Thursday.

1.f) That the social authorities have failed to comply with the County Administrative Court’s judgment of 9 August 2000 by deciding that access take place in the foster family’s home in Älmhult, which location allegedly is inaccessible by public transportation

2.a) Under Article 6 of the Convention, as to the County Administrative Court’s judgment of 2 July 1999, the Administrative Court of Appeal’s judgment of 9 September 1999 and the Supreme Administrative Court’s decision of 1 December 1999, that the courts were partial since they found for the social authorities.

2.b) Under Article 6 of the Convention that the Administrative Court of Appeal in its judgment of 9 May 2000 allegedly laid weight on the statement by PM that A had paranoid tendencies.

3. That the foster family allegedly subjected R to a treatment amounting to a violation of Article 3 of the Convention.

4. Finally, the applicants invoke Articles 10, 13 and 34 of the Convention.

THE LAW

The applicants alleged various violations of Article 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.”

1.a) The Court notes that the complaint concerning R being taken into public care was submitted on 30 May 2000 i.e. more than six months after the date of the Supreme Court’s decision of 9 January 1998, whereby the Administrative Court of Appeal’s judgment of 28 August 1997 became final. It follows that this part of the application has been introduced out of time and must be rejected under Article 35 § 1 of the Convention.

1.b) As to the complaint that the courts refused to revoke the care order the Court recalls that national authorities have the benefit of direct contact with all the persons concerned and must be granted a margin of appreciation in respect of decisions to take and keep children in public care (see inter alia Bronda v. Italy judgment of 9 June 1998, reports 1998-IV and K. and T. v. Finland [GC], no 25702/94, ECHR 2001). In the present case, it was not in dispute that R needed special care. The crucial issue concerned whether at the relevant time A was capable of providing R with the care needed. In this respect the Court notes that several statements by psychiatrists concluded that A at the relevant time, although not suffering from a serious mental disorder, nevertheless had some form of personality disorder, which influenced her behaviour towards other people and notably her ability to provide her daughter with the special care, that she needed. The Court reiterates that the authorities by placing the applicants together at Elisabethgården intended to support A in providing such care, but that A during the following two years had exhibited an increasingly aggressive, harassing and even hateful behaviour towards others, and that she constantly involved R in her conflicts to the detriment of R’s mental health, which in the end resulted in Elisabethgården discharging A. The courts had to accept that placement at Elisabethgården was no longer an option. They considered the placement of the applicants together at another treatment centre, but found that this did not prove to be a realistic alternative. In these circumstances the Court finds that the Swedish courts carefully balanced the various interests at stake and gave relevant and sufficient reasons for their decisions based on what was considered to be in the best interests of R. Moreover the Court observes that during the proceedings A was represented by counsel and she was heard before all instances. In the Court’s view the applicant A was able to participate in the decision-making process, which was fair and provided her protection for her interests as guaranteed by Article 8 of the Convention. Furthermore, it notes that the authorities in their efforts to reunite A and R firstly by placing them together at the said centre for two years and thereafter, subsequent to the year when contact was prohibited, continued in their efforts to reunite mother and child, notably by increasing access, letting it take place at A’s home as well, and by encouraging A to commence therapy. Finally, the Court observes that there is nothing to prevent A from requesting that the care order be revoked in the light of changed circumstances. Accordingly, the Court finds the interference justified under Article 8 § 2 of the Convention.

It follows that this complaint must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

1.c) The Court notes that the temporary prohibition on contact, which lasted from 12 May 1999 until 9 May 2000 was an exceptional measure. Its imposition coincided with the placement of R with the foster family, subsequent to the discharge of A from ElisabethgÃ¥rden, due to A’s continuing opposition to the treatment of R during their two ‑ year stay there. The Court reiterates that it was not in dispute that R needed treatment. The domestic courts found that contact at the relevant time entailed a risk that A would go underground with R, that a proper introduction of R into the foster family would be impaired and finally, seen in the light of A’s increasingly aggressive, harassing and even hateful behaviour towards others, that the foster family could foresee significant strain, if A knew their identity. The Court notes that the prohibition on contact was revoked when R had been properly integrated in the foster family and her mental health had improved to such an extent that e.g. the consultant, TG, and the psychiatrist, ACS, recommended that access be established between mother and daughter. In these circumstances, the Court finds that the courts carefully balanced the various interests at stake and gave relevant and sufficient reasons for the decisions based on what was considered to be in the best interests of R. Also, it notes that contact was in fact reintroduced, that access continuing did increase and that the courts presupposed that access continuously be increased. Accordingly, the Court finds the interference justified under Article 8 § 2 of the Convention.

It follows that this complaint must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

1.d) The applicants complain that the social authorities have failed to comply with the County Administrative Court’s judgment of 9 August 2000 by changing the day of access from Saturday to Thursday.

The Court notes that the social authorities made such a decision on 14 June 2000 and that, on appeal, the Administrative Court of Appeal by decision of 31 July 2000 found in favour of A and maintained that access take place on Saturdays as set out in its judgment of 9 May 2000. On the evidence before it, however, and leaving it aside, whether the applicants have exhausted domestic remedies, the Court has found no elements in the case, which substantiates the applicants’ complaint with regard to the social authorities’ compliance with the County Administrative Court’s judgment of 9 August 2000.

It follows that this complaint must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

1.f) The applicants complain that the social authorities have failed to comply with the judgment of 9 August 2000 by deciding that access take place in the foster family’s home in Älmhult, which location is allegedly inaccessible by public transportation.

The Court notes that the Administrative Court of Appeal in its judgment of 9 May 2000 expressly stated as to access that according to Section 11 of the 1990 Act the social authorities have discretion to decide where such is going to take place. In the subsequent proceedings before the County Administrative Court, leading to its judgment of 9 August 2000, the County  Administrative Court increased access to four hours every second weekend, and stated expressly that the exact time, place and whom to be present remained at the social authorities’ discretion. The judgment was upheld on appeal by the Administrative Court of Appeal on 26 September 2000. Leave to appeal was refused by the Supreme Administrative Court on 26 January 2001.

Thus, the Court must conclude that the social authorities complied with the judgment of 9 August 2000 by deciding where access should take place, and that it should take place in the foster family’s home in Älmhult.

Presupposing that the applicants’ complaint in fact relates to the proceedings before the County Administrative Court leading to its judgment of 21 May 2001 and that the complaint concerns the issue whether A de facto was denied access due to practical matters, the Court notes that in these proceedings, A submitted that Älmhult was not accessible by public transportation. Nevertheless, the Court recalls that A did not repeat this submission in the appeal proceedings before the Administrative Court of Appeal, which by judgment of 8 October 2001 increased access to six hours every second Saturday. Nor did A make the said submission, when on 16 October 2001 she requested that the Supreme Administrative Court grant her leave to appeal against the Administrative Court of Appeal’s judgment.

Accordingly, in so far as this complaint is not manifestly ill-founded, it is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

2.a) The applicants allege that the County Administrative Court in its judgment of 2 July 1999; the Administrative Court of Appeal in its judgment of 9 September 1999; and the Supreme Administrative Court in its decision of 1 December 1999 were partial since they found for the social authorities, thereby breaching Article 6 of the Convention, which reads in as far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court recalls that its only function under Article 6 of the Convention is to examine cases in which it is alleged that any of the specific procedural guarantees laid down in this provision has been disregarded in the proceedings before the national courts and that the proceedings, considered as a whole, have been conducted in such a manner as to ensure a fair hearing to the applicant.

Leaving aside whether the applicants have exhausted domestic remedies, the Court has found no substantiation in the applicant’s allegations, which could lead it to conclude that the courts involved were partial or that the proceedings were unfair or that the courts reached their decisions unfairly. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

2.b) Furthermore the applicants complain under Article 6 of the Convention that the Administrative Court of Appeal in its judgment of 9 May 2000 allegedly attached weight to the statement by PM that A had paranoid tendencies. A maintains that PM’s assessment was wrong, and that he may have reached his conclusion because she insisted on recording their conversation. She points out, however, that she took this precaution only on her counsel’s advice.

Leaving aside whether the applicants have exhausted domestic remedies, the Court has found no substantiation of the applicants’ allegations and that the proceedings therefore were unfair, or that the courts reached their decisions unfairly. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Article 3 of the Convention provides

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates that in the proceedings before the Administrative Court of Appeal leading to its judgment of 9 May 2000, A maintained inter alia that allegedly the foster family was maltreating her daughter, since R had lost weight, and since e.g. in July 1999, when A had paid R an unexpected visit, R had bruises all over, which had been caused by the foster parent’s two boys.

Even assuming that the applicants have exhausted domestic remedies, the Court finds that the evidence submitted does not sufficiently substantiate this grievance so as to disclose an appearance of treatment meeting the definition – developed in the Court’s case-law – of treatment proscribed by Article 3 (see, for example, the Raninen v. Finland judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2821 et seq., §§ 55 et seq.).

It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. Finally, as to Articles 10, 13 and 34 of the Convention the Court has examined this part of the application as submitted by the applicants. In the light of all the material in its possession, the Court finds that this does not disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President

[Note1] Use the present tense for communication of a case (the applicant complains) and the past for a decision (the applicant complained).