FIFTH SECTION

Application no. 10592/12 Ljiljana JOVANOVIC against Sweden lodged on 20 December 2011

STATEMENT OF FACTS

The applicant, Ms Ljiljana Jovanovic , is a Serbian national, who was born in 1982 and lives in Eskilstuna . She is represented before the Court by Mr J. Turjaka , a lawyer practising in Gothenburg.

I. THE CIRCUMSTANCES OF THE CASE

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

A. Background and taking into public care of the applicant ’ s son

The applicant, a Serbian Orthodox Christian, originates from the town Prokuplje in Serbia . In April 2007 she started a relationship with a Serbian man, B, who lived in Sweden and, in August 2007, they married in Serbia . Subsequently, the applicant was granted a permanent residence permit in Sweden . The applicant moved to Sweden in January 2008 and, on 25 July 2008, she and B had a son, A. A fell ill directly after his birth and remained in hospital for several days. On 20 August 2008 the applicant and B brought A to the hospital where it was revealed that he had bruises on his genitals. The family was allowed to return home after A had been examined. On the following day, A ’ s condition worsened and he suffered from cramps. Thus, the applicant and B again brought him to hospital. A suffered extensive bleeding in his brain and a chief physician at the hospital suspected that he had been severely ill-treated. A was kept at the hospital for some time and, on 21 August 2008, a physician filed a report on suspected child abuse with the social authorities.

On 25 August 2008 the Social Council ( Socialnämnden ) in Eskilstuna decided, under section 6 of the Act with Special Provisions on the Care of Young Persons ( Lagen med särskilda bestämmelser om vård av unga , 1990:52), immediately to take the A into public care on a provisional basis. The decision was executed on the same day.

On 2 September 2008 the County Administrative Court ( länsrätten ) of the County of Södermanland confirmed the decision of the Social Council. It seems that the applicant did not appeal against this decision.

Subsequently, the Social Council applied to the County Administrative Court for a permanent care order in respect of A. The applicant and B, who were represented by legal counsel, opposed the measure while A ’ s legal representative agreed that it would be in the child ’ s best interest to be placed in public care on a permanent basis.

By judgment of 28 October 2008 the County Administrative Court , after having held an oral hearing, granted a permanent care order in respect of A. The court noted that, according to a medical certificate submitted by a chief physician, A had had bruises on his body, probably squeeze injuries. There was further evidence, such as bleeding in the brain, which strongly suggested that A had been violently shaken and suffered from “shaken baby syndrome”. A suffered from severe brain injuries and would probably suffer life long mental and physical disabilities. The court added that the child ’ s injuries had occurred while he had been in the parents ’ care. Thus, in the court ’ s opinion, it did not matter who had actually caused the injuries but that it sufficed to state that the parents had failed to protect A from being injured. The court concluded that the parents had shown a serious lack of ability to care for their son. The judgment had immediate effect.

On 9 March 2009 the Administrative Court of Appeal ( kammarrätten ) in Stockholm upheld the lower court ’ s judgment. The Administrative Court of Appeal held that neither the oral statements made before it, nor the other circumstances of the case, could alter the conclusions made by the County Administrative Court .

The applicant appealed to the Supreme Administrative Court ( Högsta förvaltningsdomstolen ) which, on 17 June 2009, refused leave to appeal.

In the meantime, on 19 September 2008, A was transferred from the hospital to a treatment- and evaluation home ( utrednings - och behandlingshem ) together with the applicant and B. The main responsibility of the treatment home was to secure A ’ s need of protection. It was further tasked with evaluating the parents ’ abilities to care for A, provide the parents with such abilities if needed and to support the parents in the difficult situation in which they found themselves. The treatment home found that the applicant had shown good parental abilities. However, she had shown flaws in the emotional interaction with A. She had further not been able to separate her need for comfort and care from A ’ s. As regards B, the treatment home noted that he had been absent to a great extent due to his work commitments. In March 2009 A was placed in a family home ( familjehem ).

In late 2008 a criminal investigation concerning suspicion of child abuse in respect of the applicant and B was discontinued.

B. The prolongation of public care

On 5 February 2010 the applicant requested the Social Council to terminate the public care. She insisted that she had never ill-treated A or witnessed anyone else doing so. She had had no reason to suspect that A would risk ill-treatment at home. Moreover, she submitted that she and B had divorced and that she had been granted sole custody of A while B had limited visitation rights.

Meanwhile, the Social Council had ordered an investigation report to be made into the family ’ s situation, according to Chapter 11 Section 1 of the Social Services Act ( Socialtjänstlagen , 2001:453), and which was completed on 22 February 2010. The purpose of the report was to investigate and analyse whether A still needed to be in public care. The Social Services talked to the applicant and B, visited the family home and gathered relevant information for the case. Once finalised, the report stated, inter alia , that according to a medical certificate issued by Professor O.F., a specialist on “shaken baby syndrome”, A suffered from that syndrome. It was also stressed that A had been subjected to danger to his life when he had been shaken, that he suffered from lasting brain injuries and would need extensive care for the rest of his life. It was further noted that A had had injuries on his genitals. Moreover, it was stressed that, regardless of who of the parents had caused A ’ s injuries, the other parent had failed to protect him.

On 25 March 2010 the Social Council rejected the applicant ’ s request and decided that the public care should be continued. In its decision the Social Council referred to the findings of the investigation report.

The applicant appealed against the decision to the County Administrative Court and requested that the care order be terminated. She maintained that there was no need to keep A in public care. She further criticised the medical certificates that had been submitted in the case and contested the assumption that A suffered from “shaken baby syndrome”. Instead she claimed that A ’ s injures were caused by malpractice of personnel at the hospital where he had been treated. She further argued that A ’ s human rights were being violated since he was refused to speak his native language and practise his religion. She also complained about the proceedings before the Social Council which she considered to be deficient.

The Social Council contested the applicant ’ s claims, stressing that A ’ s life had been in danger and that he had suffered lasting brain injuries while in his parents ’ care.

Both parties submitted documentary evidence. The applicant submitted a medical certificate of her own, stating that A likely suffered from a severe brain injury, probably anoxic.

On 28 May 2010 the County Administrative Court rejected the applicant ’ s request to obtain an opinion from the National Board of Health and Welfare ( Socialstyrelsen ). According to the County Administrative Court , there were no reasons to obtain such an opinion.

On 20 August 2010 the County Administrative Court held an oral hearing in the case, where the applicant insisted that she had not in any way ill-treated A. According to her, nothing suggested any flaws in her parental abilities. The Social Council took the view that it could not rule out the possibility that A had been ill-treated in his home. It further stressed that the submitted medical certificates showed that someone had shaken A, causing him severe injuries. A ’ s legal representative agreed that it would be in his best interest to continue the public care.

On 31 August 2010 the County Administrative Court rejected the appeal. It first found that there had been no flaws in the Social Council ’ s handling of the case. The court noted that the applicant had contested the conclusions by the physicians and, moreover, that she had submitted a medical certificate of her own. However the court considered that the applicant ’ s reasoning in this regard was based on speculations and accusations which, in all essential parts, were unsubstantiated. It held that the medical certificate submitted by the applicant did not in any way contradict the ones previously submitted. Thus, nothing had emerged that would lead the court to reassess the circumstances that had lead to the initial decision to take A into public care. The court considered that the changes to the applicant ’ s life (the divorce and getting sole custody of A) were not sufficient to have a decisive effect on the outcome of the proceedings. The court also stressed that it was important that A continued to connect to his family home. In addition, the court considered that A had been subjected to severe ill-treatment while in his parents ’ care and the circumstances surrounding the incident had not been clarified. Thus, the public care of A should remain in place.

The applicant appealed to the Administrative Court of Appeal, maintaining her request that an opinion from the National Board of Health and Welfare should be obtained. The applicant also reiterated her criticism against the conclusions made in the medical certificates and, again, questioned the assumption that A suffered from “shaken baby syndrome”. She further claimed that A ’ s injuries were caused by malpractice at the hospital. The applicant also questioned the family home ’ s ability to care for her son.

The Social Council and A ’ s legal representative both contested the applicant ’ s claims.

On 21 October 2010 the Administrative Court of Appeal granted the applicant ’ s request for an opinion from the National Board of Health and Welfare. In its opinion to the court, dated on 18 January 2011, the Board referred to a certificate by T.A., a physician specialised in medical radiology, which stated, inter alia , that A ’ s injuries had been caused by severe violence and that his injuries completely corresponded to “shaken baby syndrome”. Thus, T.A. wholly agreed with the assessments previously made by O.F.

On 18 March 2011 the Administrative Court of Appeal held an oral hearing where the applicant stated that she had started to question her earlier position that A ’ s injuries had not been caused by ill-treatment in their home. Although she had not actually witnessed anyone harm A, the only person apart from herself, who could have done so was B. He had had a bad temper and on the day they had brought their son to the hospital, she had heard A scream from the bathroom, where B had been. She had later noticed that A had trouble breathing. B had threatened her and told her that she would be deported from Sweden if she were to tell anyone what had happened. At the time, she did not speak Swedish. She further stated that her living conditions had improved.

The Social Council maintained that A would be exposed to danger if he were to be left in the applicant ’ s care. A ’ s legal representative contested the applicant ’ s claims and pointed out that, although it had not been clarified who had caused A ’ s injuries, it must be presumed that one of the parents had caused them. Although she found no reason to question that the applicant would be able to care for her son, she considered that he was in need of protection until it had been clarified who had caused his injuries.

On 12 April 2011 the Administrative Court of Appeal upheld the lower court ’ s judgment. From the outset, the court observed that A needed extensive care and great responsibility was therefore placed on the custodian in terms of understanding A ’ s needs. Thus, the court considered it encouraging that the applicant had accepted the conclusions in the medical certificate concerning A ’ s health condition and what had caused his injuries. In addition, the court considered that the applicant ’ s life situation had improved since the decision to take A into public care. Of decisive importance to the court was, however, whether A ’ s needs could be met by the applicant. In this connection, the court noted that it had still not been clarified who had caused his injuries. The court further considered that, in light of the applicant ’ s statement before the court, her previous behaviour was peculiar. Although the court acknowledged the applicant ’ s difficult situation at the time of A ’ s injuries, it nevertheless stressed that the conditions in the family had lead to serious deficiencies in A ’ s care, causing him life-threatening injuries and life long disabilities. The court concluded that there still was a clear risk of impairment to A ’ s health and development if the public care were to be terminated.

Upon further appeal by the applicant, the Supreme Administrative Court refused leave to appeal on 20 June 2011.

C. Contact restrictions

Following the granting of the public care order, the applicant ’ s contact rights to visit A were regularly examined by the domestic authorities. The first three weeks that A was in the family home, the applicant and B had contact rights to visit him three times a week. Subsequently, the applicant and B had contact rights to visit A once a week.

On 12 May 2009, as stated in the treatment plan, the parents ’ contact rights to visit A were reduced, since the visits had affected A ’ s mental state negatively. The parents did not approve of the changes to the treatment plan and the Social Council therefore, on 9 and 15 October 2009, decided to reduce the parents ’ contact rights to visit A once every other month. In January 2010 the parents ’ contact rights to visit A were extended to once every month, since A ’ s mental state had improved. The contact rights were also extended from one hour to one and a half hour. On 22 July 2010 the Social Council decided to again reduce the parents ’ contact rights to one hour every month, since A had been affected negatively during and after the visits and it was considered that he needed peace and quiet.

The applicant appealed to the County Administrative Court , maintaining that she had not in any way ill-treated A. On 31 August 2010 the County Administrative Court upheld the Social Council ’ s decision. The court observed that A had reacted negatively during the visits. It further held that he needed to be in a stable environment and, moreover, that he needed to connect to his family home parents. The court further stressed the fact that A had been severely injured while in the parents ’ care.

The applicant appealed to the Administrative Court of Appeal which, on 12 April 2011, rejected the appeal. The court noted that the Social Council intended to film the visits and subsequently, with the help of the Child and Youth Psychiatric Clinic ( Barn- och ungdomspsykiatrin ), analyse the results. Having regard to this, and the observations made by the Social Council during the visits, the court held that the contact restrictions should remain.

It seems that the applicant ’ s contact rights to visit A at present are restricted to one visit lasting one hour every month. On 26 October 2011 the Social Council decided that the applicant would be entitled to speak Serbian with A during the visits.

Following the filming of the applicant and A, the company responsible for the filming, in a report dated on 3 June 2012, stated that the applicant had shown sensitivity towards A and that they had shown a genuinely good interplay. According to the report, the applicant had the necessary abilities to support A in his future development. The report concluded that it was of great importance for A that he was allowed to see his mother much more often. Thus, the report recommended that the applicant be allowed to visit her son more often. It also recommended that the visits should take place without the presence of the family home parents.

At present, the applicant is working as a kindergarten teacher.

COMPLAINTS

The applicant complains under Article 8 of the Convention that her right to her family life has been violated through the domestic authorities ’ decision to keep A in public care. Moreover, she complains under Article 6 of the Convention that the Social Council was partial, based its assessment on insufficient material, gave insufficient reasons for its decisions and failed to regularly reassess the need for a prolongation of the public care order. She also claims that the Swedish authorities let her husband translate for her during the initial social investigation and during their stay at the hospital, instead of getting a professional interpreter, putting her in a vulnerable situation where she was completely dependent on her husband.

The applicant further complains that A has been deprived of his right to freedom of religion, contrary to Article 9 of the Convention, since he is Christian Orthodox but living with a Swedish couple who are not orthodox. Invoking Article 14 of the Convention, she also claims that A has been denied the possibility to learn and to speak his mother tongue, Serbian.

QUESTION to the parties

Has there been a violation of the applicant ’ s right to respect for her family life, in relation to the decision to keep her child in public care, contrary to Article 8 of the Convention?