PARTLY DISSENTING OPINION OF JUDGE LAGERGREN

      Whilst otherwise agreeing with the majority of the Court, I

am unable to share its opinion that the temporary restrictions on

access, including telephone communication and correspondence, were

in violation of Article 8 (art. 8).

      The difference of opinion separating me from my colleagues

concerns the necessity of the interferences in question and the

margin of appreciation which in this context is to be allowed to the

national authorities.

      Judge Macdonald has stated: "The margin of appreciation is at

the heart of virtually all major cases that come before the Court,

whether the judgments refer to it expressly or not."  (Ronald St.

John Macdonald: "The margin of appreciation in the jurisprudence of

the European Court of Human Rights", Essays in Honour of Roberto

Ago, III, 1987, at p. 208.)

      A decade ago Sir Humphrey Waldock similarly stressed the

significance of the doctrine of the margin of appreciation in his

often cited sentence, that this doctrine "is one of the more

important safeguards developed by the Commission and the Court to

reconcile the effective operation of the Convention with the

sovereign powers and responsibilities of governments in a

democracy."  (Human Rights Law Journal 1980, at p. 9).  This

endorsement by one of the great jurists of our time of judicial

self-restraint is certainly still valid in the present European

situation.

      It is nowadays a well-established view within the Commission

and the Court that the primary responsibility for securing the

rights and freedoms enshrined in the Convention lies with the

individual Contracting States and "that it is in no way the Court's

task to take the place of the competent national courts but rather

to review under [the Convention] the decisions they [deliver] in the

exercise of their power of appreciation" (Handyside v. the United

Kingdom judgment of 7 December 1976, Series A no. 24, pp. 23-24,

para. 50).  The Strasbourg institutions have also recognised that, in

principle, the domestic authorities are, by reason of their "direct

and continuous contact with the vital forces of their countries", in

a better position than the international judge to determine whether

the Convention rights or equivalent domestic legal norms have been

overstepped (see, ibid., para. 48).

      The full implications of the available margin will be

difficult to draw until a larger and more coherent body of law

emerges.  However, a basic formulation is to be found in the case of

Rasmussen v. Denmark: "The scope of the margin of appreciation will

vary according to the circumstances, the subject matter and its

background" (judgment of 28 November 1984, Series A no. 87, p. 15,

para. 40; cf. Macdonald, op. cit., at p. 206).

      One crucial difficulty in the present case is the necessity

to make a delicate assessment related to a given moment and in a

national context of complex psychological factors and to arrive at

valid impressions of personalities and human relations.  Another

difficulty is to balance conflicting private interests and public

obligations.

      Since the rationale for the doctrine of margin of

appreciation is that national authorities are deemed to be in a

better position than the international judge to determine whether

interferences with defined human rights are "strictly required", it

is useful in this case to compare the proceedings before the Swedish

courts and the proceedings before the Strasbourg Court - in the

manner in which they actually occurred.

      From the decision of the Chairman of the Social Committee

no. 1 of the Social Council at Växjö on 5 June 1985 until the last

decision maintaining the care order (the County Administrative

Court's judgment of 17 February 1988), the case of Margareta and

Roger Andersson, in a unique sequence of proceedings, came six times

before the County Administrative Court, three times before the

Administrative Court of Appeal and three times before the Supreme

Administrative Court.  The representative of the Government stated

at the hearing before the Strasbourg Court that the decisions of the

Swedish courts were unanimous.  Oral proceedings were regularly held

before the two instances of first and second degree.  On most

occasions, Margareta Andersson was present and examined by the

County Administrative Court and the Administrative Court of Appeal.

She was assisted by counsel under the Legal Aid Act

(rättshjälpslagen), while Roger was represented by official counsel

(offentligt biträde).  Social welfare officers represented the

Social Council.  Two witnesses testified before the County

Administrative Court, which also heard as expert witness, in two

different proceedings, the Deputy Chief Doctor of the Children's and

Juveniles' Psychiatric Clinic at Växjö.

      Margareta Andersson attended the short hearing before the

Strasbourg Court, but she remained silent.  Thus, the Court did not

have the benefit of listening directly, as the "principle of

immediacy" requires, to statements by Margareta Andersson herself,

nor did the Court hear statements of social welfare officers or

testimony of witnesses.

      In this respect, the representative of the Government stated

before the Court that if the facts upon which the judgments of the

national courts and the decisions of the social authorities were

based and the necessity of the interference were questioned, it was

the Government's view that witnesses should also testify before the

Strasbourg Court.  Testimony by the social welfare officers and the

foster parents might be necessary in such a case.  It would be a

very serious thing to disregard the decisions in question without

having access to such direct information.

      In view of the procedural situation and with regard to the

nature and complexity of the factual issues to be decided in the

present case, the national authorities are, in my opinion, entitled

to a wide margin of appreciation.  In this context, reference should

be made to the Brandstetter v. Austria judgment in which the Court

held: "According to [the Court's] case-law, it is, as a rule, for

the national courts to assess the evidence before them" (judgment of

28 August 1991, Series A no. 211, p. 23, para. 52).  A similar approach

is to be found in the markt intern Verlag GmbH and Klaus Beermann

judgment: "... the European Court of Human Rights should not

substitute its own evaluation for that of the national courts in the

instant case, where those courts, on reasonable grounds, had

considered the restrictions to be necessary" (judgment of

20 November 1989, Series A no. 165, p. 21, para. 37).

      The situation was different in the Olsson case, concerning,

inter alia, the implementation of care decisions in respect of the

three Olsson children.  There the crucial point of fact was not

disputed, i.e. that Helena and Thomas were placed at a great

distance from their parents and from Stefan.  From these facts the

Court concluded that the very placement of the children adversely

affected the possibility of contacts, in a manner inconsistent with

the ultimate aim of reuniting the Olsson family (Olsson v. Sweden

judgment of 24 March 1988, Series A no. 130, pp. 36-37, para. 81).

      The representative of the Government stressed throughout the

Strasbourg proceedings that although the Swedish decisions imposed

prohibitions on access, including contact by telephone and

correspondence, such prohibitions were not as categorical as it may

appear.  The social welfare authorities could always "allow visits

or other forms of contacts to the extent it [was] deemed possible

without risking the purpose of the care or without risking harm to

the child's welfare".  (See, also, paragraph 44 of the judgment).

      Specifically, as to the restrictions on communication by

correspondence and telephone, the following statements by the

representative of the Government before the Commission are of a

certain relevance: "Mrs Andersson always had the possibility of

talking to the foster parents and to the extra foster home and also

to Roger's teacher so as to keep herself informed about Roger's

health and development.  She also made use of the possibility and

often talked to the foster parents, as well as the extra foster

parents ...  To what extent it has been possible for Roger to

contact his mother by phone is not known for certain to the

Government" (verbatim record of hearing on 10 October 1989, p. 8;

see, also, paragraph 28 of the judgment).  Indeed, the effect of the

restrictions on communications in this particular case are difficult

to measure, since there must have been several easy ways of avoiding

such restrictions.

      Since the reasons for the care decisions and those for the

restrictions on access, including telephone communication and

correspondence, are to a great extent similar, it should not be

overlooked that the Commission declared the complaints related to

the care decisions inadmissible as being manifestly ill-founded (see

paragraph 90 of the judgment).  On the merits of the case, the

Commission never reached any decision on the necessity of the

restrictions on access and on telephone communication and

correspondence.

      In the light of the considerations set out above, and since

there is no reason to doubt that the Swedish courts exercised their

discretion carefully and in good faith and on the basis of an

adequate knowledge of the facts, I am not prepared to find that the

temporary restrictions on access, including telephone communication

and correspondence, imposed by the national authorities in their

privileged position, overstepped the limits of what might be deemed

necessary in a democratic society within the meaning of

Article 8 para. 2 (art. 8-2).

      I therefore consider that no violation of the requirements of

Article 8 (art. 8) has been established.