AS TO THE ADMISSIBILITY OF
Application No. 11900/85
by B. V.
against Denmark
The European Commission of Human Rights sitting in private
on 4 May 1987, the following members being present:
MM. E. BUSUTTIL, Acting President
C. A. NØRGAARD
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G. H. THUNE
Sir Basil HALL
Mr F. MARTINEZ
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 July 1985 by
B. V. against Denmark and registered on 9 December 1985 under file N° 11900/85;
Having regard to the report provided for in Rule 40 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Danish citizen, born in 1947. She is an
unskilled worker and resides at Hundested, Denmark. Before the
Commission she is represented by Mr. N. E. Thoregaard, a lawyer
practising at Frederikssund, Denmark.
From the statements and from the documents submitted by the
applicant, the following appears to be established.
The applicant is the mother of six children. Her first
marriage was dissolved in 1972 and the applicant was awarded the
parental rights over the three children of that marriage. The
applicant's second marriage broke down in 1979 and of the two children
of this marriage the applicant was awarded custody over her daughter A
whereas her ex-husband was awarded the custody rights over the other
child.
The applicant's child A, born on 5 February 1974, as well as
the three children of the first marriage were taken into care on 30
October 1974 on the ground that maltreatment of the children had
been reported. The applicant was later found guilty of maltreating
the children and received a suspended sentence for this. The decision
to place the children in care was eventually confirmed by judgment of
28 April 1975 of the High Court (Landsretten). The applicant's child
A was first admitted to a nursery home but as from 1 September 1975
she has been placed in care of foster parents. The custody of the
three children of the applicant's first marriage was transferred to
the father by judgment of the High Court of 10 August 1976.
In 1976 the applicant requested that her child A be returned
to her. However, by decision of 3 June 1976 the Social Committee of
Frederikssund County (det sociale udvalg i Frederikssund kommune)
refused it. This decision was upheld by the Social Appeals Board (den
sociale ankestyrelse) on 3 August 1976 and finally by the High Court
by judgment of 10 December 1976.
The applicant's sixth child was born in 1979. She lives with
the applicant and the man with whom she cohabits at Frederikssund.
In 1982 the applicant tried again to have her child returned
to her. However, by decision of 10 May 1982 the Social Committee
again refused the request. The decision was upheld by the Social
Appeals Board on 6 July 1982 and confirmed by judgment of the High
Court of 6 October 1982. The applicant applied to the Ministry of
Justice for leave to appeal the decision to the Supreme Court
(Højesteret). Leave to appeal was, however, refused by the Ministry
of Justice on 26 November 1982.
In 1983 the applicant requested for the third time that her
child A be returned to her. However, on 31 May 1983 the Social
Committee again rejected the request and the decision was upheld by
the Social Appeals Board on 23 August 1983. This decision was not
brought before the High Court.
The following year the applicant submitted a new request to
the authorities in order to have her child A returned to her. In
connection with the examination of the applicant's request the Social
Committee obtained a school report dated 10 April 1984, a report of
18 April 1984 from the Foster Home Group (plejehjemsforeningen) as
well as a statement from the school psychologists of 24 April 1984.
On 2 May 1984 the Social Committee decided, in pursuance of
section 123 of the Social Aid Act (bistandsloven), that the
applicant's child should remain with her foster parents.
Section 123 of the Social Aid Act reads as follows:
"Section 123. (1) Where absolutely necessary in
the interests of the welfare of the child, the local
social committee may, until the child attains the age of
18, without the consent of the person having the parental
rights over the child, decide -
(i) to place the child away from home;
(ii) to commit the child to the psychiatric department
of a hospital or in a mental hospital with the
consent of the medical superintendent of the
hospital, even though the general conditions
prescribed in the legislation on hospitalisation
of the mentally ill are not satisfied;
(iii) to refuse to let the child return home or place the
child elsewhere, notwithstanding the fact that the
initial care was established with the consent of the
person having the parental rights over the child.
(2) Where the supportive measures according to
subsection (1) may exceed one year, the local social
committee shall reconsider the case. Where the young person
is 18 years of age, the supportive measures can only be
maintained with his or her consent."
The applicant appealed against the decision of the Social
Committee to the Social Appeals Board. The applicant appeared before
the Appeals Board together with her lawyer on 31 July 1984. It was
agreed to adjourn the case pending the outcome of a child
psychological examination as well as a report on the conditions in the
foster home. These reports were submitted on 21 September and 13
August 1984 respectively. The child psychological report concluded
that it was absolutely necessary for the further development of the
child that she remained with her foster parents the rest of her
childhood and youth.
The Social Appeals Board examined the case again on 9 October
1984 on the basis of the above reports as well as two other reports
dated 31 August and 19 September 1984 and obtained from the Foster
Home Group and the school psychologists. On the basis of the facts so
established the Social Appeals Board decided to uphold the decision of
the Social Committee since it found that the requirements for refusing
the return of the child to her mother were met.
The applicant requested that the decision of the Social
Appeals Board be brought before the High Court. The case was heard by
the High Court on 27 February 1985. The applicant was present and
heard. Furthermore, the Court had at its disposal all of the
above-mentioned reports as well as other relevant material such as
correspondence between the applicant's lawyer and the social
authorities and the minutes from the latter's meetings concerning the
case. By judgment of the same day the High Court held, on the basis
of the evidence produced, that it was absolutely necessary out of
regard for the child's welfare that her return to the mother be
denied.
The applicant did not file a petition with the Ministry of
Justice for leave to bring the judgment of the High Court before the
Supreme Court.
During the period of time in which the applicant's child has
been placed in a foster home the applicant's access to her was
regulated as follows. From 1975 to 1980 a visiting arrangement in the
foster home was provided for. After the decision of the Social
Committee in 1982 not to return the child to the applicant it was also
decided to suspend the access right. In October 1984 it was, however,
decided to grant it again to a certain extent. From a letter of
5 September 1985 addressed to the applicant's representative it
appears that the Social Committee, on 26 April 1985, decided that the
applicant for the time being may see her daughter twice a year, in
January and in June, for two hours each time. It does not appear that
the applicant has appealed against this decision to the County Appeals
Board (amtsankenævnet), a possibility open to her.
COMPLAINTS
The applicant invokes Articles 3, 5 and 13 of the Convention.
She maintains that the violation of Articles 3 and 13 lies in the fact
that the authorities constantly refuse to return her child to her.
She considers it hopeless to continue to appeal against the decisions
taken since it is clear that the authorities have no intention to
reunite the family. These intentions are clearly indicated in the
reports provided by the social authorities. Such an attitude, she
maintains, amounts to degrading treatment. The attitude expressed by
the social authorities is accepted by the High Court which has now
rejected her case three times.
Finally the applicant points out that the authorities' main
argument is the fact that a long period of time has passed and that
for this reason it would be to the detriment of her daughter to be
returned to her. However, the applicant maintains that she has
constantly tried to have her child returned to her and that it is the
authorities themselves who have created this situation.
THE LAW
1. The applicant complains in substance that the refusal to
return her child to her is a violation of the rights secured to her
under the Convention. The Commission finds that this complaint falls
to be examined under Article 8 (Art. 8) of the Convention which reads:
"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 Commission finds that the refusal to return the child to
the applicant interfered with her right to respect for her family life
as ensured by Article 8 para. 1 (Art. 8-1).
It must therefore be examined whether this interference was justified
under the terms of Article 8 para. 2 (Art. 8-2). The Commission finds that the
interference was "in accordance with the law", namely the Social Aid Act in
particular Section 123 of the Act. The Commission furthermore finds that the
interference had a legitimate aim under Article 8 para. 2 (Art. 8-2), namely
the interests of the child which in this case fall under the expression "for
the protection of the rights and freedoms of others". It remains to be
determined whether the interference was "necessary in a democratic society"
having regard to the interests of the child.
When determining whether or not the refusal to return the
child to the applicant was "necessary in a democratic society" having
regard to the interests of the child, the Commission observes that it
is not its task to take the place of the competent national courts but
rather to review under Article 8 (Art. 8) the decisions which have been taken
by the domestic authorities and to ensure that these decisions have
been reached without unfairness or arbitrariness.
It is difficult to ascertain what precisely is in the best
interests of a child. The Commission stresses that the issue in these
cases is not only what is the best solution for the child. Under
Article 8 (Art. 8), an interference with the right of the parent to take care
of his or her child cannot be justified simply on the basis of it
being better for the child to be taken care of by certain foster
parents. In order to justify such an interference, it is necessary
under the terms of Article 8 (Art. 8) that the State demonstrate sufficient
reasons for the decision to take care of a child. Those reasons
should be of such a weight as to render the care "necessary in a
democratic society".
The Commission has first had regard to the wording of the
relevant legal provisions, in particular section 123 of the Social Aid
Act. Under this provision a child may be placed away from home where
this is absolutely necessary for the welfare of the child. The
Commission finds no indication that the Danish legislation as such
would fall short of the requirements for a justification of an interference
under Article 8 para. 1 (Art. 8-1). The Commission also recalls the procedure
operating in Denmark where the arrangements made must be re-examined by the
Social Committee every year in order to clarify whether the measure is still
necessary. As in the present case the Social Committee's decision may be
brought before the Social Appeals Board where the applicant, assisted by legal
counsel, has the opportunity to bring forward any issue which might be of
importance for the outcome of the case. Finally the Social Appeals Board's
decision may be brought before the court which ultimately decides on the
necessity of the arrangement after an oral hearing during which the applicant
is assisted by a court-appointed legal counsel.
The Commission finds in these circumstances that the decision
to refuse to return the child to the applicant was taken following a
thorough investigation and a procedure at various administrative as
well as court levels which are sufficient to exclude the assumption of
unfairness or arbitrariness. However, the Commission must also
satisfy itself that the factual basis on which the decision was based
was such as to justify the interference. In the present case the
Commission recalls that the social authorities carried out a child
psychological examination on the basis of which it was concluded that
it appeared absolutely necessary for the further development of the
child that she remained with her foster parents. Furthermore reports
were obtained from the Foster Home Group and from the school
psychologists. It was on the basis of these reports that the measure
of care was maintained.
It is true that the final decision, in addition to the other
evidence obtained during the court proceedings, was based on opinions
which were expressed by different experts, as well as the conclusions of
social reports obtained for the purpose. However, such an assessment of
the situation, in particular the situation of the child in question,
must be made. The Commission finds that in deciding whether to keep the
child in care the national authorities are to be recognised as having a
certain discretion, since it is in the first place for the national
authorities to evaluate the evidence adduced before them in a particular
case. In the present case it appears from the documents submitted that
all reports obtained indicated that it would endanger the welfare of the
child if she was to live with her mother.
The Commission is of the opinion that, when deciding to keep
the child in care on the basis of the conclusions in the above
reports, the national authorities did not go beyond the discretion
they had to evaluate this evidence.
On the basis of the above considerations the Commission finds
that it has been demonstrated that the decision to keep the
applicant's child in care can be regarded as "necessary in a
democratic society" within the meaning of Article 8 para. 2 (Art. 8-2)
in the interests of the child.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The Commission has finally examined the applicant's remaining
complaint as submitted by her under Articles 3, 5 and 13 (Art. 3, 5, 13) of the
Convention. However, this examination has not disclosed any
appearance of a violation of the Convention and it follows that this
part of the application is also manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
H. C. KRÜGER (E. BUSUTTIL)