Communicated on 22 September 2020 Published on 12 October 2020

THIRD SECTION

Application no. 21574/16 Siremon ROENGKASETTAKORN ERIKSSON against Sweden lodged on 15 April 2016

STATEMENT OF FACTS

1 . The applicant, Ms Siremon Roengkasettakorn Eriksson, is a Swedish and Thai national who was born in 1977 and lives in Stockholm. She also complains on behalf of her children X and Y, who were born while the applicant was married to their father in 2007 and 2006 respectively. Before the Court she is represented by Mr K. Lewis, a lawyer practising in Stockholm.

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

3 . On 17 October 2007, when she was around two weeks old, X was taken to hospital by her father and the applicant, who were married at the time. A physician diagnosed several fractures to her body and skull, bruises and cerebral haemorrhaging. Over the next two days, the social services ( stadsdelsnämnden ) decided to place X and Y in emergency care and applications for care orders in respect of both children were consequently lodged. Both parents were charged with the aggravated assault of X and the children were placed in an emergency family home ( jourhem ).

4 . On 12 December 2007 the County Administrative Court ( länsrätten, as of 15 February 2010 f ö rvaltningsrätten ) granted the social services ’ care-order applications, finding that an adult in X ’ s family had caused X ’ s injuries, more than likely in Y ’ s presence. It concluded that by failing to protect X the parents had demonstrated that they lacked sufficient parental skills, a fact which entailed concrete risks to the health and well-being of their children. The applicant and X and Y ’ s father appealed against the judgment in so far as it concerned the care order in respect of Y.

5 . On 14 January 2008 the District Court ( tingsrätten ) acquitted the applicant on the criminal charges. X and Y ’ s father was convicted on several counts and sentenced to one year ’ s imprisonment. He appealed against the judgment in so far as he had been found guilty. The prosecutor appealed against the applicant ’ s acquittal and the partial acquittal of X and Y ’ s father.

6 . On 15 January 2008 the social services decided to restrict the parents ’ contact rights with the children to two hours every month, in the presence of a contact supervisor, and telephone contact with Y once a week.

7 . On 31 March 2008 the Administrative Court of Appeal ( kammarrätten ), having held on the same day a hearing on the appeal against the care order issued in respect of Y (see paragraph 4 above), delivered an interim decision to lift the care order in respect of him. Its judgment on the merits was then delivered on 21 April 2008. It overturned the County Administrative Court ’ s judgment, as it considered that even in the event that X had been a victim of violence at home, that circumstance did not necessarily imply a similar risk in respect of Y.

8 . On 20 May 2008 the social services decided to move X from her emergency family home to a foster home ( familjhem ). The proposed “plan” for the care arrangement ( vårdplanen ) stated that the social services had asserted that the placement would be long term and that a condition for its discontinuation was that it would have to be established that X ’ s parents had not subjected her to violence and thereby caused her serious injuries or that if one of the parents had not done so, that parent could ensure that X would be protected from further abuse. The applicant and X and Y ’ s father appealed against the decision, arguing that it would be better for X to remain where she was at that time, in particular as her father ’ s criminal conviction would soon be examined on appeal (see paragraph 5 above).

9 . On 30 May 2008 the County Administrative Court reviewed the decision on contact rights of 15 January 2008 (see paragraph 6 above). It emphasised that public care should not last longer than necessary and should be arranged so as to facilitate family reunification as soon as the child ’ s well-being made it possible. In order to achieve that purpose, close and good contact between the child and his or her family during the care period was necessary. As to the case before it, it took account of the circumstances as they had been when the social services had taken the decision under review and particularly the fact that it had been taken a very short time after the County Administrative Court had issued the care order (see paragraph 4 above). It therefore found no reasons to set that decision aside.

10 . On 18 June 2008 the County Administrative Court upheld the decision concerning the placement of X in a foster home (see paragraph 8 above). Neither the applicant nor X ’ s father appealed against the County Administrative Court ’ s judgment, which thus became final.

11 . On 10 November 2008 the Administrative Court of Appeal upheld the County Administrative Court ’ s judgment of 30 May 2008 concerning the decision of 15 January 2008 to restrict contact rights (see paragraph 9 above).

12 . On 23 March 2009 the Court of Appeal ( hovrätten ) decided on the appeals against the District Court ’ s judgment in the criminal case (see paragraph 5 above). X and Y ’ s father was convicted on all counts, including the aggravated assault of X, and sentenced to four years ’ imprisonment. The applicant ’ s acquittal was upheld.

13 . On 8 September 2009 the social services delivered a new decision on contact rights, in which it was decided to continue the arrangement of supervised monthly visits of two hours.

14 . On 23 November 2009 the County Administrative Court, reviewing the social services ’ decision of 8 September 2009 (see paragraph 13 above), increased the applicant ’ s supervised contact rights to once every other week for two hours at a time. It noted that even though the care arrangement at that time appeared to be long term it was nonetheless important that the child and her parents maintain meaningful contact.

15 . On 19 April 2010 the Supreme Court ( Högsta Domstolen ) refused X and Y ’ s father leave to appeal against the Court of Appeal ’ s judgment in the criminal case (see paragraph 12 above).

16 . On 13 July 2010 the applicant filed for divorce from X and Y ’ s father.

17 . On 15 July 2010 X and Y ’ s father started serving his sentence (see paragraph 12 above).

18 . On 27 July 2010 the applicant applied to have the care order in respect of X lifted.

19 . From August 2010 the applicant had sole custody of X and Y.

20 . On 5 April 2011 the social services refused the applicant ’ s application to have the care order in respect of X lifted (see paragraph 18 above).

21 . On 8 July 2011 the County Administrative Court, reviewing the social services ’ decision of 5 April 2011 (see paragraph 20 above), found that the care order could not be lifted. It based its judgment in part on findings concerning the applicant ’ s attitude to and behaviour in relation to the abuse of which it considered X to have been the victim, concluding that those factors meant that it was too early to conclude that the applicant would be capable of protecting X from abuse.

22 . On 5 December 2011 the Administrative Court of Appeal reversed the Administrative Court ’ s judgment, concluding that the care order could be lifted. It noted that X had been placed in care because she had been the victim of ill-treatment at home and that her father had been convicted on that account. However, her father was serving a lengthy prison sentence at the time, her parents had divorced, and the applicant had sole custody of X (see paragraphs 16-17 and 19 above). There was therefore no longer any reason to uphold the care order.

23 . On 21 May 2012 X and Y ’ s father lodged an application with the Supreme Court to have the criminal case reopened on the ground that substantial new evidence had been produced, notably medical information and opinions relevant to the question of X ’ s injuries.

24 . On 29 June 2012 the Supreme Administrative Court ( Högsta förvaltningsdomstolen ) upheld the Administrative Court of Appeal ’ s judgment on lifting the care order (see paragraph 23 above). Like that court, the Supreme Administrative Court found that there was no longer any reason to believe that X ’ s health and well-being were at risk due to physical ill-treatment or to a lack of parental skills on the applicant ’ s part, and held that the care order should therefore be lifted. In its judgment, it emphasised that possible risks of harm to children in connection with being removed from their foster homes could not be taken into account to justify the continuation of a care order. If such risks were present in a case they had instead to be countered by way of other legal measures, such as prohibitions on being removed or transfers of custody.

25 . Thereafter X continued to live in her foster home on a voluntary basis and she saw and visited the applicant whenever the applicant so desired.

26 . On 30 August 2012 the social services decided in the interim to prohibit the applicant from removing X from the foster home.

27 . On 12 September 2012 the County Administrative Court confirmed the social services ’ interim decision, prohibiting X ’ s removal from her foster home. It noted that X was worried and saddened by the thought of having to leave her foster parents, with whom she had lived since she was eight months old.

28 . On 19 October 2012 the County Administrative Court granted the social services ’ subsequent application for a prohibition on X ’ s removal, as it found that there was an obvious risk that removing her would harm her health or development.

29 . In December 2012 the social services initiated proceedings before the District Court to transfer custody of X from the applicant to X ’ s foster parents. They deemed it necessary to act since, after the care order had been lifted, the applicant had increased the frequency of her visits with X to an extent which had become harmful to her.

30 . On 7 February 2013 the Administrative Court of Appeal reversed the County Administrative Court ’ s judgment of 19 October 2012 concerning the prohibition on X ’ s removal (see paragraph 28 above). It noted that X had been in continuous contact with the applicant throughout her placement in care and knew that she was her biological mother. In conclusion it found that it had not been established with sufficient clarity why a step-by-step return to the applicant would harm X and, if so, what the concrete risks to her were. However, in the course of the custody proceedings before it, the District Court, on 23 July 2013, decided in the interim to grant the social services ’ application, as it considered it important not to make changes to X ’ s situation before the case had been examined on the merits.

31 . On 25 October 2013, after holding an oral hearing at which several expert witnesses were heard, the District Court granted the social services ’ application to have custody of X transferred to her foster parents. The applicant was granted contact rights with X on a fortnightly basis and on certain holidays. The court noted that X had lived in the foster home for more than five years, since she was about eight months old; that she was developing very well there; that she had settled in very well and considered it her home; and that she had expressed the wish to remain there. Furthermore, it noted that the increased frequency of the applicant ’ s visits after the lifting of the care order had become harmful to X. The court found that it was very important for X to know if she was to continue to live in the foster home or move in with the applicant. Moreover, it took into account that during the first weeks of her life, X had been abused in her home and had sustained lifelong injuries, and that this made it especially important for her to feel the safety she did with her foster parents.

32 . On 27 December 2013 the Supreme Court reopened the criminal case against X and Y ’ s father and remitted it to the Court of Appeal for a fresh examination on the merits. It found that in the light of new evidence and expert statements, notably relating to X ’ s vitamin levels and the circumstances of her birth, the courts ’ prior conclusion that X ’ s injuries could not have any explanation other than grave violence could be called into question.

33 . On 17 March 2015 the Court of Appeal acquitted X and Y ’ s father on the charges of assault against X, finding that, in the light of the new evidence presented, the case had not included any examination capable of explaining what had caused X ’ s injuries.

34 . On 23 March 2015, on an appeal by the applicant in the transfer-of-custody proceedings, the Court of Appeal, after holding an oral hearing, slightly amended the applicant ’ s contact rights but upheld the lower court ’ s judgment concerning the transfer of custody (see paragraph 31 above).

35 . In its judgment, the Court of Appeal noted at the outset that the relevant provisions in the Parental Act (see paragraph 44 below) had to be applied in accordance with the case-law of the European Court of Human Rights, and referred in particular to the cases of Görgülü v. Germany (no. 74969/01, 26 February 2004), R. v. Finland (no. 34141/96, 30 May 2006) and Levin v. Sweden (no. 35141/06, 15 March 2012). It further stated that the case required a complex assessment weighing X ’ s need for stability and continuity against the right to private life and family life. The critical issue was which solution would be best for X under the circumstances at the time of its judgment. The Court of Appeal went on to examine in detail different aspects of the case relevant to the question of the transfer of custody.

36 . Firstly, the Court of Appeal examined X ’ s ties to her foster parents. It noted that she had been placed in the foster home at a very young age and had in effect lived there her entire life (six years and ten months at that time). She had settled in well with her foster parents and felt such stability and security there that she regarded it as her home. Furthermore it found that X had very strong bonds with her foster parents, considering them her real parents. They gave her the care and comfort that she needed and she was developing in a positive manner. The court concluded that X ’ s strong bonds with her foster parents weighed heavily in favour of a transfer of custody.

37 . Secondly, the court assessed the contact between X and the applicant. It noted that they had had regular contact since January 2008, although for short periods each time. Up until the District Court ’ s judgment in October 2013 (see paragraph 31 above), there had been contact supervisors and foster parents present, but for approximately one and a half years thereafter their contact had not been subject to any type of supervision. X and the applicant had had good contact and interplay; they had enjoyed each other ’ s company during the visits and their relationship had developed in a positive manner. The Court of Appeal also noted, however, that the applicant had been accompanied by other adults during practically every visit, she had not spent any longer periods of time alone with X and had usually video-recorded the visits. The Court of Appeal found that the extent and nature of X ’ s and the applicant ’ s contact had not been such that a transfer of custody was not viable for that reason in itself.

38 . Thirdly, the court examined the risk of separating X and her biological parents. It noted that X and the applicant had had regular contact while the former had lived in the foster home; the foster parents agreed that this should continue in the future and X had also expressed that wish. In view of this, it concluded that there was no noteworthy risk that X would lose contact with the applicant or be prevented from establishing contact with her father if custody were to be transferred to the foster parents. Instead, it considered that a transfer of custody would ensure that X was given the opportunity to develop her relationship with her biological family at an appropriate pace ( i lugn og ro ).

39 . Fourthly, regarding X ’ s attitude towards a transfer of custody, the court noted that the issue was of a rather legal nature which a child would naturally not be able to fully understand. It observed that X, who was seven and a half years old at the time, had lived in the foster home since she was eight months old and had developed strong emotional bonds with her foster parents and regarded their home as her own. In view of this, it concluded that moving in with the applicant would appear rather alien to X. In this connection, it held that she was torn between two families and her negative reaction to the increase in the frequency of visits during the first half of 2013 and thereafter had more than likely been caused by uncertainty as to where she was going to live and her unwillingness to disappoint anyone. Therefore, it was deemed of the utmost importance for X ’ s well-being to know with whom she would live in the future.

40 . Lastly, the court examined the likely effect of returning X to the applicant ’ s care. It stated in that context that the European Court of Human Rights had in several cases emphasised that States were under the obligation to strive for reunification when children had been temporarily taken into public care, where that was deemed to be in the child ’ s best interests. Moreover, it emphasised that the Court required long-term and extensive efforts in order to achieve family reunification before transferring custody could become an option. The Court of Appeal also observed that, as the child ’ s best interests were the paramount concern in custody cases, the child ’ s need for continuity might prevail over the possibility of reuniting the child with his or her biological parents. In this connection it noted that the applicant had been deemed suitable to have custody of X and that she planned to introduce her daughter to her home in a gradual manner. However, owing to the rather short time that X had lived with her biological parents, she could not have experienced any family life or acquired a sense of belonging with them. She had developed strong emotional bonds with her foster parents and regarded them as her parents. The Court of Appeal noted in particular that two of the expert witnesses had been of the opinion that even a gradual transfer of X would entail risks for her health and development. In view of these circumstances, and with particular regard to X ’ s best interests, the court concluded that reunification was not realistic in the foreseeable future.

41 . Having concluded that it would be in X ’ s best interests to transfer custody of her to her foster parents, the Court of Appeal went on to state that her keeping contact with her biological mother and brother was also in her best interests, and that close and good contact between the three would be beneficial to X ’ s development. It decided that, following an initial transition period, X would thereafter stay with the applicant essentially every second weekend. It emphasised that it was too early to decide how exactly further increases in contact were to be carried out and that therefore it would not at that time take any decisions in that respect. It also emphasised that the foster parents, in cooperation with the applicant, had a responsibility to strive for increased and flexible contact between X and the applicant.

42 . On 22 October 2015 the Supreme Court refused the applicant leave to appeal against the Court of Appeal ’ s judgment.

43 . On 15 April 2016 the applicant lodged her application with the Court.

44 . Section 8 of Chapter 6 of the Parental Act ( föräldrabalken ) of 10 June 1949 provides that if a child has been permanently cared for and brought up in a private home other than his or her parental home and if it is obviously in the best interests of the child that the prevailing relationship continue and that custody be transferred to the person or persons who have cared for the child or to one of them, the court will appoint the said person or persons to exercise custody of the child as specially appointed guardians. Section 2a of that Chapter provides that the best interests of the child are decisive for all decisions on care, custody and contact.

COMPLAINT

45 . The applicant complained under Article 8 of the Convention that there had been a violation of both her and her children X and Y ’ s right to respect for their family life due to the measures adopted in respect of X which had resulted in the decision to transfer custody of her to her foster parents and restrict the applicant ’ s contact rights.

QUESTIONS TO THE PARTIES

Having regard to the Court ’ s case-law (see, in particular, Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019), has there been a violation of the applicant ’ s right to respect for her family life, contrary to Article 8 of the Convention?

In particular;

(1) were relevant and sufficient reasons provided for the decision to transfer the custody in respect of the applicant ’ s daughter to the latter ’ s foster parents, and was that decision, in the light of the case as a whole, proportionate and necessary in a democratic society in the terms of the second paragraph of Article 8?

( 2) was sufficient regard had to the positive duty resting on the authorities in cases involving imposition of public care restricting family life, to take measures to facilitate family reunification as soon as reasonably feasible? (See, for example, Strand Lobben and Others , cited above, § 205; and K. and T. v. Finland [GC], no. 25702/94, § 178, ECHR 2001 VII).