FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27753/95 by Reino and Gunhild KOSKINEN against Sweden

The European Court of Human Rights (Fourth Section) , sitting on 3 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 March 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Reino and Gunhild Koskinen, are Swedish nationals, who were born in 1928 and 1933 respectively and live in Västervik . They were represented before the Court by Ms L. Isaksson, a lawyer practising in Umeå. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants have a daughter, K. In 1982 she gave birth to a son, M., of whom she has sole custody. However, for most of his life, M. has been living with the applicants. In 1986 K. gave birth to a second son who was placed in public care in 1989.

In April 1992 K. picked up M. at the school he attended in Västervik and brought him to Landskrona, where she had taken up residence. The applicants reported this event to the Social Council ( socialnämnden ) in Landskrona and requested it to take action in order to have M. returned to them. The Council started an investigation of the matter. In 1992 and 1993 several psychologists and social welfare officers submitted opinions which did not question the applicants’ ability to assume the care and custody of M. but rather tended towards finding that M. would be better off living with the applicants.

On 7 September 1992 the Council decided to take no action. The social welfare officers in charge of the matter considered that M. should live with his mother, his legal custodian. According to an opinion issued by the Children’s Psychiatric Clinic ( barn- och ungdomspsykiatriska kliniken ) in Landskrona on 17 June 1992, it was of utmost importance that M. was given a permanent home and that this should be with his mother.

In February 1993 the applicants took M. from K. in Landskrona and went into hiding. In an application to the County Administrative Court ( länsrätten ) in Malmö, K. requested that M. be returned to her.

On 9 March 1993 the chairman of the Social Council in Landskrona decided to take M. into compulsory public care immediately due to the applicants’ illegal abduction of him. This decision was not enforced, however, as the applicants were still in hiding.

On 16 March 1993 the County Administrative Court held an oral hearing in the case. K. attended, assisted by public counsel. Also officers of the Social Council were heard. The applicants were not present or represented. K. stated, inter alia, that the applicants had removed M. from his home without her permission and had refused to return him. She also claimed that the applicants had physically assaulted him and exerted pressure on him. The social welfare officers stated that M. suffered from the conflict between his mother and his grandparents and that it was not possible to discuss with the applicants the possibility of returning M. to his mother. They also considered that M. needed psychiatric treatment in accordance with a plan which had been drawn up by the Social Council and to which K. had consented. Further, due to M.’s state of health and the risk that he be removed to Finland, it was allegedly urgent that he be returned to his mother.

On 17 March 1993 the Court decided that M. be taken care of immediately in accordance with chapter 21, section 10 of the Parental Code ( Föräldrabalken ) and ordered the police authorities in Landskrona to enforce the decision. It left it to the Social Council to decide on the proper measures with regard to the care. In its reasoning, the Court found that the matter was urgent due to M.’s health and as there was a risk that M. could be removed out of the country. On the same day the Court quashed the Council’s decision of 9 March to take M. into compulsory public care.

The applicants appealed to the Administrative Court of Appeal ( kammarrätten ) in Gothenburg, stating that it would be detrimental to M. to be separated from his grandparents. The Court held an oral hearing, where the applicants, though absent themselves, were represented by court-appointed counsel.

By a decision of 30 November 1993 the appellate court rejected the applicants’ appeal. It generally agreed with the reasoning of the County Administrative Court and added that it had not been possible to enforce that court’s decision since the applicants were still in hiding with M. The applicants lodged an appeal, but it was dismissed by the appellate court on 16 February 1994 for having been lodged out of time. On 29 September 1994 the Supreme Administrative Court ( Regeringsrätten ) rejected an application for restoration of the expired time.

On 27 December 1993 the applicants and M. were apprehended in Finland and M. was returned to his mother in Sweden. The Social Council decided to prohibit all access between the applicants and M.

On 10 January 1994 the Social Council refused the applicants’ request to be informed of M.’s telephone number, referring to the confidentiality applicable to such information under the Secrecy Act ( Sekretesslagen ; 1980:100). The applicants did not appeal against the decision.

On 28 January 1994 the applicants requested access to M. and also wished to be informed of the results of possible psychiatric examinations of him.

By a letter of 9 March 1994 a social welfare officer informed the applicants that K. opposed access and that the Social Council did not consider it to be in the best interests of M. to allow meetings with the applicants at that time, as such contact would have disturbed the developing relationship between M. and his mother. This opinion was supported by a psychologist at the Children’s Psychiatric Clinic in Landskrona, who had been consulted in the matter. The applicants were also told that information on psychiatric examinations was confidential and, thus, could only be disclosed to the custodian.

On 19 April 1994 the Social Council decided not to initiate court proceedings with a view to establishing access between the applicants and M. and to reject the request for information. The applicants did not appeal against the Council’s decision.

On 7 June 1994 the County Administrative Court decided, at the request of K., to strike out the case relating to K.’s request in February 1993 for the return of M. to her, noting that M. had already been returned to her. The Court observed that the applicants’ counsel had not commented on the strike-out request, although he had been notified thereof.

The first applicant appealed against the strike-out decision and also requested that he and his wife be awarded custody of M. On 12 July 1994 the Administrative Court of Appeal dismissed his action, finding that he lacked standing to appeal against the decision in question and that the Court did not have jurisdiction to decide on transfer of custody. On 27 September 1994 the Supreme Administrative Court refused the first applicant leave to appeal. On 21 March 1996 the same court rejected his application for a reopening of the proceedings.

According to the applicants, K. has repeatedly been told by social welfare officers that no access, correspondence or telephone contacts between M. and the applicants would be allowed until M. reached the age of majority (i.e. until July 2000).

B. Relevant domestic law and practice

Swedish law does not afford grandparents any rights over their grandchildren. The rights over a child are normally vested in its parents or custodians who, according to chapter 6, section 15 (1) of the Parental Code, shall see to it that the child’s need of access to a person who is particularly close to the child is satisfied to the utmost possible extent. As concerns the possibility of instituting court proceedings, section 15 (3) provides that such proceedings may be brought by the Social Council, if access requested by somebody else than the natural parents is denied by the child’s custodians. The court shall determine the question of access in keeping with the child’s best interests. Also, under section 15 (4), the court shall have regard to the risk of the child being abused, being illegally removed or detained, or otherwise suffering harm when contacts take place with the person requesting access.

According to the preparatory documents to the above legislation (see Government Bill 1981/82:168, pp. 43 and 76), it has not been deemed appropriate that any person who claims to have a particularly close relationship to a child should be entitled to bring an action for access before the courts. Therefore, contrary to what is the case with the child’s parents, the Social Council has the exclusive right to bring such an action. The Council makes use of this right only in rare cases. In practice, when the social authorities are informed, for instance by the person concerned, that the child’s custodian fails to ensure that the child can meet with a person to which it has a close relation, the Council shall investigate whether such a contact can be considered as being in the best interests of the child and, if that is the case, take action with a view to establishing access, ultimately by requesting a court decision.

Similar rules apply to the question of custody. Thus, under chapter 6, section 8 of the Parental Code, the custody of a child may be transferred to a person who has constantly cared for the child, if this is deemed to be in the child’s best interests. The transfer of custody is decided by the District Court upon application by the Social Council.

There does not appear to be any Swedish case-law on the question whether the person requesting access or custody has standing to appeal against a decision by the Social Council not to institute court proceedings in the matter.

When the child is in the home of another person, chapter 21, section 7 of the Parental Code gives the custodian an opportunity to apply to the County Administrative Court for a decision that steps be taken to transfer the child to him or her. If there is a risk of the child being removed out of the country or if the matter is urgent for some other reason, the court may, under chapter 21, section 10, order that the child be taken care of immediately in the manner it considers appropriate.

COMPLAINTS

The applicants complained that their rights under Articles 6 and 8 of the Convention had been violated in the following respects:

1. The authorities had failed to properly examine their requests to have the care and custody of M. transferred to them.

2. The County Administrative Court had failed to summon them to its hearing in March 1993 and had not appointed a counsel to represent them pursuant to the legal aid legislation.

3. There had been an ongoing prohibition on access, correspondence and telephone calls between them and M.

4. Finally, in their submissions of 27 April 1998, the applicants complained that the decision of the Social Council of 10 January 1994 did not contain instructions on how to appeal and that Swedish law afforded them no opportunity to appeal against the Council’s decision of 19 April 1994 to an independent tribunal.

THE LAW

The applicants complained that their rights under Articles 6 and 8 of the Convention had been violated. In so far as relevant, Article 6 provides:

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

Article 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 Court points out that only the applicants’ complaint regarding prohibitions on access, correspondence and telephone calls between them and M. was communicated to the respondent Government. The Government’s observations of 30 October 1997 and the applicants’ reply of 27 April 1998 may be summarised as follows.

According to the Government, there were three events which could have brought Article 8 of the Convention into play: the decision of the Social Council of 10 January 1994 not to disclose M.’s telephone number; the letter of 9 March 1994 informing the applicants that the Council did not consider it to be in M.’s best interests that they were granted access to him; and the decision of the Council of 19 April 1994 not to initiate court proceedings with a view to establishing contacts between the applicants and M.

The Government maintained that the domestic remedies had not been exhausted with respect to the decisions of 10 January and 19 April 1994. As regards the former decision, the applicants had failed to make use of the appeal procedure available to them. As regards the latter decision, the Government stated that the legal situation as to the possibility of an appeal was unclear. Allegedly, it could not be excluded, however, that the applicants would have been able to lodge an appeal or apply for a review under the 1988 Act on Judicial Review of Certain Administrative Decisions ( Lagen om rättsprövning av vissa förvaltningsbeslut ; 1988:205). With respect to the letter of 9 March 1994, the Government adduced that it only contained information and could not be seen as a decision in the matter.

Furthermore, the Government argued that the above events did not involve any prohibition on access issued by a public authority as, at the relevant time, M. was living with his mother and was not in public care. In that situation, the Social Council could not have - and had not - issued any decision restricting access, correspondence or telephone calls. The only reason why there had been no contacts between the applicants and M. was because K., the legal custodian of M., had opposed such contacts. Thus, there had not been any interference with the applicants’ rights under Article 8 of the Convention, for which reason the Government alternatively held that the application should be declared inadmissible for being incompatible ratione materiae with the Convention or manifestly ill-founded.

The applicants maintained that all domestic remedies had been exhausted. They further claimed that the social authorities had been the only possible link between them and M. and that, through their failure to take action on their various requests, the authorities de facto had prevented them from seeing M. By deciding not to institute proceedings concerning access, the Social Council had deprived them of their right to have their civil rights determined by a court. The applicants asserted that, under Swedish law, they could not have appealed against the Council’s decision.

The Court notes that the applicants complained that various decisions and action taken by the social authorities and the County Administrative Court – and, in some respects, the social authorities’ failure to act – had violated their rights under Articles 6 and 8 of the Convention.

The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and if it has been presented within a period of six months from the date on which the final decision was taken.

In determining whether the applicants have complied with the six-month rule, it should be noted that the present application was introduced to the Court on 18 March 1995. Thus, the only decision taken in the case six months or less prior to that introduction was the decision of the Supreme Administrative Court of 27 September 1994 by which it refused the first applicant leave to appeal against a decision taken by the Administrative Court of Appeal on 12 July 1994. The latter decision, in part, determined that the first applicant lacked standing to appeal against the County Administrative Court’s decision to strike out the case relating to K.’s request for the return of M. That strike-out decision was thus taken in a case which had been lodged by K. and which had already been solved as M. had actually been returned to K. in December 1993. It did not address any substantive issues nor did it in any way affect the legal or factual situation as to the care and custody of M. The appellate court, in part, also decided that it had no jurisdiction to decide on transfer of custody. The first applicant’s request that he and his wife be awarded custody of M. had thus been lodged with the wrong tribunal. Thus, the proceedings leading to the Supreme Administrative Court’s decision of 27 September 1994 had no effect on the rights relied on by the applicants in the present application.

It follows that, in so far as the applicants claimed that the latter decision involved a breach of their rights under Articles 6 and 8 of the Convention, their complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

It is true that the applicants complained that there had been an ongoing prohibition on access, correspondence and telephone calls between them and M. The Court observes, however, that M. was returned to his mother, K., in December 1993. He was thereafter living with his mother and was not in public care. Consequently, as his custodian, K. had the rights over M. and was responsible for his care. The applicants’ lack of access to M. was due to K.’s unwillingness to let them contact him. The social authorities did not – and, moreover, did not have any authority to – take any decisions restricting access, correspondence or telephone calls.

It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicants also complained that the authorities had failed to properly examine their requests to have the care and custody of M. transferred to them, that the decision of the Social Council of 10 January 1994 did not contain instructions on how to appeal and that Swedish law afforded them no opportunity to appeal against the Council’s decision of 19 April 1994 to an independent tribunal.

Leaving aside the fact that the applicants failed to exhaust domestic remedies in regard to the decision of 10 January 1994, the Court notes that the challenged decisions and failure to act were taken or occurred more than six months before the introduction of the present application. As regards the alleged lack of access to court, it is true that Swedish law is unclear as to the possibility for a person requesting access to appeal against a decision by the Social Council not to institute court proceedings in the matter. In this connection, the Court notes that the applicants did not try to have the Council’s decision of 19 April 1994 brought before a court. In any event, even assuming that the applicants were correct in claiming that there was no possibility to appeal against that decision and even assuming that the decision can be said to have involved a determination of the applicants’ civil rights despite the fact that Swedish law does not afford grandparents any rights over their grandchildren, the Court concludes that the applicants’ lack of access to court was apparent and affected their situation already on 19 April 1994 when the decision was taken. There is no evidence that they have renewed their request to the Social Council or that the Council, for any reason, has taken a later decision in the matter.

It follows that this part of the application must be rejected for non-compliance with the six-month rule within the meaning of Article 35 § 1 of the Convention.

Finally, the applicants complained that the County Administrative Court had failed to summon them to its oral hearing and appoint a counsel to represent them. In this respect, the Court notes that the hearing in question was held on 16 March 1993 and that no later decisions have been taken in this matter.

It follows that this part of the application must also be rejected for non-compliance with the six-month rule within the meaning of Article 35 § 1 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President