FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42290/98 by Claes-Göran DAVIDSSON against Sweden

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

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 April 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant is a Swedish national, born in 1953, who lives in Göteborg .

A. The circumstances of the case

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

The applicant has two daughters, C and A, born in 1981 and 1988 respectively. Since their birth they cohabited with their mother. The applicant and the children’s mother have never lived together and their relationship ended permanently in 1993.

In the period between 1993 and 1995 the children and their mother received support and therapy several times from the social authorities.

In January 1995 C was voluntarily placed at a childcare centre due to the mother’s mental problems and medical drug abuse. Having commenced psychotherapy, the mother found herself also incapable of taking care of A. Thus, on 22 January 1996 A moved in with the applicant.

Shortly thereafter, on 31 January 1996 A was taken into immediate care on a provisional basis by decision of a Social Board (stadsdelsnämnden Tuve ‑ S ä ve i G öteborg) pursuant to the section 6 of the Act with Special Provisions on the Care of Young Persons ( Lagen med s ärskilda bestämmelser om vÃ¥rd av unga , 1990:52, hereinafter “the 1990 Act”) due to inter alia suspicion of incest and physical abuse, as alleged by C to the staff at the child care centre, where she was placed.

It appears that A was fetched by the social authorities from her school. She was temporarily placed at an institution specialising in child psychiatry.

The decision about immediate care on a provisional basis was confirmed by the County Administrative Court (Lä nsrätten i Göteborgs- och Bohus Län) on 9 February 1996.

On 27 February 1996 the Social Board revoked its decision as the applicant and A’s mother had agreed that A should remain temporarily at the children’s institution. An investigation was carried out concerning C’s allegation which resulted in a decision not to pursue the case, taken it appears, shortly thereafter.

On 22 March 1996 the Social Board decided to take A into immediate care on a provisional basis pursuant to section 6 of the 1990 Act.

The decision was confirmed by the County Administrative Court on the 3 April 1996.

On 10 May 1996, by request of the Social Board, the County Administrative Court pronounced judgment ordering that A be taken into public care pursuant to sections 1 and 2 of the 1990 Act. Before the court the applicant, A’s mother and 5 witnesses were heard, including two psychiatrists. In addition a psychiatric statement on A was submitted. It was not in dispute that A’s mother could not provide the care needed.

In its judgment the court held:

“A is a child with special needs. According to the psychiatric statement A is mentally unhealthy, she has already been damaged and she is in need of care. The Social Board has claimed that it is likely that the need for care is caused by the applicant having beaten A. The court finds that this cannot be considered established with the certainty needed. However, it is a fact that A suffered great lack of care while living with her mother. Having shared custody, both parents are responsible therefore. Both parents consider that A can live with [the applicant] and that consequently, intervention [under the 1990 Act] is not needed. However, it follows from the psychiatric statement that the applicant and A’s mother remained passive in spite of serious warning signals concerning A, including inter alia A’s statement expressed during the spring of 1995 that she did not wish to live any longer. The parents have not taken any measures at all as regards A’s unhealthy state of mind. In addition to this passivity, the applicant appears to lack understanding for A’s need for security, stimulation and care. One example thereof is [the applicant’s] reaction at this hearing to all the information gathered on A’s need for care, provided by doctors’ statements and witnesses. In [the applicant’s] opinion A’s main problems are caused by the public care she has been subjected to. Thus, he insists that only he should assess whether A needs special care and only after she has been placed with him. This statement and the information otherwise submitted before the court support the impression that A, deprived of proper care, obviously risks severe damage to her health and development, not only [in relation to] her mother but also if placed with her father. Since [the applicant] and A’s mother cannot consent to the current care plan and have not shown that the needed care can be provided in some other way, A must be taken into care pursuant to the 1990 Act.” 

On appeal, the judgment was upheld on 23 August 1996 by the Administrative Court of Appeal (Kammarrätten i Göteborg) after an oral hearing where the applicant was heard as well as several witnesses.

Leave to appeal was refused by the Supreme Administrative Court (Regeringsrätten) on 6 December 1996.

On 7 January 1997 A, who until then had been placed in a children’s home, was placed with foster parents. The applicant maintained access to A three times per week. In the meantime the applicant requested that the care order be revoked. The Social Board refused this on 20 December 1996.

The applicant appealed to the County Administrative Court, claiming that the care order be revoked or in the alternative that A be transferred back to the children’s home until a foster family closer to his home in G öteborg could be found. Before the court one of the psychiatrists heard before the County Administrative Court was re-heard and an additional witness on the applicant’s behalf was heard. A’s counsel recommended that the care order be maintained. By judgment of 24 February 1997 the County Administrative Court found against the applicant stating inter alia :

“[the applicant] maintains that the conditions for public care according to the 1990 Act are not fulfilled. Moreover, he finds no reasons to take any special measures or make any changes as regards A. On the one hand he accepts that A may be a child with special needs; on the other hand he maintains that it is up to him to assess whether A needs any supportive measures and only after she has been placed with him. As a result of this inflexibility on the part of the applicant the situation is virtually unchanged since the [the court’s judgment of 10 May 1996]. Indeed, as the statement from the children’s home shows, A appears to feel better. According to [the applicant] the reason for this is that A is no longer under the influence of her mother and that she regularly sees him and his family. [According to the court] another explanation could be the beneficial influence of the children’s home. No matter how one assesses it, the case offers no indication that care pursuant to the 1990 Act is no longer needed. The care, which concerns a child with special needs, has lasted for only a short period. The damage inflicted on A has already been proven. In conclusion, the court finds that the care order cannot yet be revoked.

As to the placement of A, no objections as such have been submitted regarding the foster family. The foster family is considered qualified. The question remains whether the placement of A at a home situated [approximately 30 kilometres] from the city Alings ås contravenes the principle of proximity, which entails that the child should be placed at a home which is not too far from the child ’ s home-environment. Taking into consideration that there are good public connections between G öteborg and Alingsås and that [the applicant] is always fetched from and brought to the railwaystation by the foster family, the court finds that the placement of A is not in breach of the principle of proximity. No other reasons have been submitted in favour of returning A to the children’s home. ”

On appeal, on 11 June 1997 the judgment was confirmed by the Administrative Appeal Court, which held an oral hearing and heard the applicant, A’s mother and three witnesses. It referred to the County Administrative Court’s reasoning and added insofar as relevant the following:

“A’s mental damage has not been healed to such an extent that care according to the 1990 Act is no longer needed. As regards  [the applicant] there is no indication that he has gained any better insight as to A’s needs or that his circumstances have changed to such an extent that he is capable of taking care of A with the certainty needed, more particularly when her special needs are taken into consideration. “

Leave to appeal was refused by the Supreme Administrative Court on 20 October 1997.

On 7 July 1998 the Social Board ordered the determination of the care pursuant to section 21 of the 1990 Act.

B. Relevant domestic law

Normally, measures taken by the social authorities as regards children shall be based on an agreement with the young person concerned and his or her custodian. Such measures are governed by the provisions of the Social Services Act ( Socialtjänstlagen , 1980:620).

However, if the custodian or the young person - if he or she is above fifteen years of age - does not consent to the necessary care, compulsory public care may be ordered under the 1990 Act (section 1 § 2). Care 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  (section 14).

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 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

The applicant complains:

1. Under Article 3 of the Convention that the social authorities on 31 January 1996 made inhuman allegations about him to A; when they abruptly took A after school and brought her with them, they allegedly told A that her parents did not care about her anymore;

2. Under Article 5 § 1 of the Convention that A was taken into public care;

3. Under Article 6 § 1 of the Convention, without further specifying the reasons therefor, that he and A did not receive a fair trial;

4. Under Article 6 § 2 of the Convention that the social authorities have made unsubstantiated allegations against him;

5.a. Under Article 8 of the Convention that the authorities have split up his family;

b. That the authorities placed A and C in two different homes;

c. And that the social authorities entered his home;

6. Under Article 10 of the Convention that he has been defamed by the social authorities and;

7. Under Article 13 of the Convention that no effective remedies were available to him.

THE LAW

1. The applicant complains that the social authorities when fetching A from school subjected him or A to treatment contravening Article 3 of the Convention, which reads as follows:

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

The Court recalls that it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court see, inter alia, Selmouni v. France [GC] , no. 25803/94, § 74, ECHR 1999-V.

Leaving aside the question whether this complaint is compatible ratione personae as concerns A, the Court notes that the applicant has not submitted any documents substantiating that he has raised either in form or in substance before any domestic authorities, the complaint that is being made to the Court.

It follows that this part of the application 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. The applicant complains under Article 5 § 1 of the Convention that A was taken into public care.

Leaving aside the question whether the complaint is compatible ratione personae as concerns A, the Court cannot find that the placement of A in the children’s home or with the foster family amounts to a deprivation of her liberty within the meaning of Article 5 of the Convention (see e.g. Gustavsson v. Sweden, no. 21009/92, Commission decision of 5 April 1995, § 9). 

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

3. The applicant complains that he and A did not receive a fair hearing as guaranteed by Article 6 § 1, which in as far as relevant reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court notes that the applicant has not stated the grounds for his complaint. To the extent that the applicant complains about assessment of the evidence and the result of the proceedings before the national courts, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for example the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28 with further references, Reports of Judgments and Decisions 1999-I ).

Insofar as the applicant complains of the lack of fairness of the proceedings and to the extent that the application is compatible ratione personae as concerns A, the Court notes that the applicant had the benefit of adversarial proceedings including several oral hearings where he was allowed to question witnesses. At the various stages of those proceedings he was able to submit the arguments he considered relevant to his case. He was awarded legal counsel at the cost of the State. The factual and legal reasons for the first-instance and the appellate courts’ decision were set out at length. No evidence has been adduced to indicate that in these circumstances the applicant was not granted a fair hearing.   

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

4. Furthermore, the applicant complains that the social authorities made unsubstantiated allegations against him in breach of Article 6 § 2, which provides:

“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”

The Court notes that the applicant was never apparently charged with a criminal offence. Even assuming that the applicant had been charged with a criminal offence, he has not submitted any material which could substantiate his allegation that the social authorities made allegations against him which could infringe Article 6 § 2.

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

5. a. The applicant complains that his family was split up. He invokes Article 8 of the Convention, which 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 recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, K. and T. v. Finland ([GC], no. 25702/94, § 151, ECHR 2001).

The taking of a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. In this regard a fair balance has to be struck between the interests of the child in remaining in the public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent ( ibid ., § 178).

An interference with a right guaranteed by Article 8 constitutes a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. The Court must also determine whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicant was involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of their interests (see, e.g., the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64, and the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87).

In the present case the Court notes that C was voluntarily placed in a family home. However, the placement of A in public care no doubt interfered with the applicant’s right to respect for his family life.

The Court finds no indication that the interference was not based on the Act with Special Provisions on the Care of Young Persons or did not aim at protecting the health and rights of the child.

Neither can the Court find that the social welfare authorities or the administrative courts overstepped their margin of appreciation. In their decisions the courts took into consideration that A was mentally unhealthy, that she had suffered mental damage and that she was in need of special care. Also, they took into account that the applicant had been passive as regards A’s special needs, and that at the relevant time he lacked understanding as to these needs. At the same time, they carefully and continuously considered the possibility of A being placed with the applicant, combined with the taking of measures pursuant to the 1990 Act. However, having regard to the applicant’s reluctance to accept such a solution, the courts based their conclusion on what in their opinion was in the best interest of A. Moreover, the Court recalls that the Social Board ordered the determination of the public care as soon as this was no longer deemed necessary. Thus, the care lasted a little more than 2 years 3 months.

Finally, there is no evidence that the applicant was insufficiently involved in the decision-making process. He was in constant contact with the Social Authorities, and the County Administrative Court and the Administrative Court of Appeal held oral hearings where he was heard and allowed to question witnesses. The interference with the applicant’s rights can therefore be considered proportionate to the legitimate aim pursued and thereby “necessary in a democratic society”. Thus, the Court is satisfied that the interference by the authorities has been justified under Article 8 of the Convention as being lawful, aiming at protecting the child’s health and being proportionate to that aim.

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

5.b. Moreover, the applicant complains under Article 8 of the Convention that A and C were placed in different homes. 

As stated above, pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Court notes that when the applicant appealed against the Social Board’s decision of 20 December 1996, he claimed that the care order be revoked or in the alternative that A, be transferred back to the children’s home until a foster family closer to his home in G öteborg could be found . The children’s home in question was not identical to the child care centre where C was living. Moreover, the Court recalls that the County Administrative Court in its judgment of 24 February 1997, stated that ”no other reasons have been submitted in favour of returning A to the children’s home”. Thus, before the County Administrative Court the applicant did not submit that the sisters should stay at the same child care center or that they should stay in homes close to each other. Thus, t he applicant has not submitted any documents which could indicate that he raised either in form or in substance before the domestic authorities or the courts the complaint that A and C were not placed together.

Accordingly, this part of the application 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.

5.c. Invoking Article 8 of the Convention, the applicant also complains that the social authorities entered his home.

As stated above, pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. In the present case the Court notes that the applicant has not submitted any documents substantiating that he raised either in form or in substance before any domestic authorities, notably the National Board of Health and Welfare, the complaint that is being made to the Court.

It follows that this part of the application 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.

6. and 7. Finally, as to the applicant’s complaints under Articles 10 and 13 of the Convention the Court has examined these parts of the application as submitted by the applicant. In the light of all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles of the Convention.  It follows that also this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President