AS TO THE ADMISSIBILITY OF
Application No. 36341/97
by Susanne BALLENSKY
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 May 1997 by
Susanne BALLENSKY against Sweden and registered on 5 June 1997 under
file No. 36341/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1960 and resident in
Hägersten, is a waitress. Before the Commission she is represented by
Mr Lennart Hane, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. The particular circumstances of the case
The applicant and her husband have a son R, born on
30 August 1990. On 5 September 1990 R was taken into public care on a
provisional basis 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 - hereinafter "the 1990 Act"). By judgment of
30 October 1990, the County Administrative Court (länsrätten) of the
County of Stockholm granted, pursuant to the 1990 Act, the request of
the Social District Council (Sociala distriktsnämnden - hereinafter
"the Council") No. 11 of Stockholm for a care order in respect of R on
the grounds that the applicant and her husband were unable to rear R
and that, due to the parents' mental illness, there was a risk of
impairment of R's health and development.
On 20 December 1990 R was placed with foster-parents. He still
lives with the same foster-family.
On 19 March 1991 the applicant requested that R should be removed
from the foster-family and placed in the grandparents' home. Her
request was rejected by the Council on 7 May 1991 and the Council
decided that R should remain in the foster-home. The Council's decision
was later confirmed by the County Administrative Court.
In February 1992 the parents renewed their request that R should
be removed from the foster-home to the grandparents' home. The Council
upheld its former decision that R should remain in the foster-home. By
judgment of 21 August 1992, the County Administrative Court confirmed
the Council's decision.
In January 1995 the applicant requested that the public care be
terminated. She declared that her and her husband's intention was that
R should live with his grandparents. Their request was refused by the
Council on 1 November 1995.
The parents appealed against the Council's decision to the County
Administrative Court. By decision of 23 January 1996, the court
rejected the applicant's request to hear R's grandparents and three
other witnesses who were supposed to give evidence as to the
grandparents' ability to take care of R.
On 24 January 1996 the court held a hearing at which the
applicant, her lawyer, the child's counsel and representatives of the
Council were present and heard. At the hearing the court restricted the
discussion to the following three issues: whether if R needed care,
whether the conditions in the applicant's and her husband's home had
been changed since the first decision to take R into public care and
whether there was a consent by the custodians to the proposed care. The
court did not allow the applicant's lawyer to present arguments with
regard to the grandparents' capability of taking care of R. By judgment
of 21 February 1996, the County Administrative Court rejected the
appeal against the Council's decision not to terminate the care. The
court found that the deficiencies on which the initial care decisions
had been based still existed and that there was thus still a clear risk
of impairment of R's health and development due to the conditions in
his parents' home. The court found that the parents' mental health had
not improved to such an extent that they were able to take care of R.
The parents appealed to the Administrative Court of Appeal
(kammarrätten) in Stockholm. By decision of 29 April 1996, the court
granted the applicant's request that R's grandparents be heard at the
court's hearing. Finding the evidence to be given by the other three
witnesses proposed by the applicant unnecessary, the court, however,
rejected the applicant's request in that respect.
On 3 May 1996 the appellate court held a hearing, during which
it heard the same persons as the County Administrative Court and, in
addition, R's grandparents.
By judgment of 17 May 1996, the Administrative Court of Appeal
upheld the appealed judgment. The appellate court agreed with the
County Administrative Court that the deficiencies on which the initial
care decisions had been based still existed. Thus, the parents could
not take care of R due to their mental illness. The appellate court
stated that R had special needs. The court took into account the
statement of Dr. Brune at the Children's Medical Clinic (Barn- och
ungdomsmedicinska kliniken) at Danderyd hospital that children with a
mental retardation are very dependent on a safe and solid home
environment for their development and that the removal of R, who was
mentally retarded, from the foster-home would cause him much anxiety
and therefore negatively affect his psychomotoric development. The
court noted that R had made some progress with his speech and motoric
activity and that it was important not to disturb this development. The
court further stated that there was no reason to question the
grandparents' wish to give R a good and safe home environment. The
court, however, found that the circumstances in the case were such that
the care should not be terminated.
On 28 November 1996 the Supreme Administrative Court
(Regeringsrätten) refused leave to appeal against the Administrative
Court of Appeal's judgment.
b. Relevant domestic law
The taking of children into public care without the consent of the
parents is governed by the 1990 Act. Section 2 of the Act provides that
care is to be provided 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, exploitation, lack of care or any other condition in the
home.
Once public care has been ordered, it is executed by the Social
Council, which decides on the particular details of the care. Section
11 of the Act provides that the Council shall decide on how the care
should be arranged and where the child should live.
Section 21 of the Act provides that the care under the Act shall
terminate when such care is no longer necessary.
COMPLAINTS
1. The applicant complains of the public care of R. She claims that
the public care was not necessary, as proper care of R could be
provided by his grandparents. The applicant invokes Article 8 of the
Convention.
2. Furthermore, invoking Article 6 of the Convention, the applicant
complains that she has been denied a fair hearing by an impartial
tribunal. She claims that the courts have not properly analysed R's
special needs and have ignored the possibility that the grandparents
could take care of R with the support of, inter alia, physicians and
speech therapists.
THE LAW
1. The applicant complains of the public care of R. She invokes
Article 8 (Art. 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 Commission finds that the refusal to terminate the care of
R interfered with the applicant's right to respect for her family life
as ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It must
therefore be examined whether this interference was justified under the
terms of Article 8 para. 2 (Art. 8-2). In this respect, the Commission
recalls that three conditions must be satisfied: the interference must
be "in accordance with the law", it must pursue one or more of the
legitimate aims enumerated in para. 2 and it must be "necessary in a
democratic society" for that or those aims.
As regards the first condition, the Commission finds that the
decisions were in conformity with Swedish law, namely Section 2 of the
1990 Act.
The Commission finds further 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 expressions "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others".
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the established case-law of the Commission and the
European Court of Human Rights, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued. In
determining whether an interference is "necessary in a democratic
society", the Commission furthermore has to take into account that a
margin of appreciation is left to the Contracting States. That does not
mean, however, that the Commission's review is limited to ascertaining
whether the respondent State has exercised its discretion reasonably,
carefully and in good faith. Furthermore, it cannot confine itself to
considering the relevant decisions in isolation but must look at them
in the light of the case as a whole. It must determine whether the
reasons adduced to justify the interference at issue are "relevant and
sufficient" (cf. Eur. Court HR, Olsson v. Sweden judgment of
24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).
In the present case, the Commission recalls that the County
Administrative Court and the Administrative Court of Appeal, in their
judgments, found that the deficiencies on which the initial care
decisions had been based still existed and that, thus, there was still
a clear risk of impairment of R's health and development due to the
conditions in his parents' home. Reference was made to the parents'
mental health which had not improved to such an extent that they could
take care of R, who had special needs on account of his mental
retardation. Furthermore, the appellate court took into account the
statement of Dr. Brune that the removal of R from the foster-home would
cause him much anxiety and therefore negatively affect his
psychomotoric development. The appellate court also noted that R had
made some progress with his speech and motoric activity and that it was
important not to disturb this development.
The Commission further recalls that the courts, before giving
their judgments, had held hearings, at which the applicant, her lawyer,
the child's counsel, representatives of the Social Council and - before
the Administrative Court of Appeal - the grandparents were present and
heard. The courts further had regard to the parties' written
submissions and to the statement of Dr. Brune. Thus, the courts cannot
be said to have based their decisions on insufficient evidence.
In the light of the foregoing the Commission finds that the(Art.
ant and sufficient reasons and that, having regard to their margin of
appreciation, the Swedish authorities were reasonably entitled to think
that it was necessary for the care decision to remain in force.
Accordingly, the Commission concludes that the decisions not to
terminate care can reasonably be regarded as "necessary in a democratic
society" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
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 applicant complains that she did not have a fair hearing by
an impartial tribunal. She invokes Article 6 of the Convention which,
in so far as relevant, reads as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair ... hearing ... by an independent and
impartial tribunal ..."
As regards the courts' refusal to hear certain witnesses, the
Commission recalls that it is in principle within the discretionary
powers of the domestic courts to assess the evidence before them as
well as the relevance of the evidence which the parties seek to adduce.
The Commission notes that the appellate court heard the grandparents.
However, the courts refused to hear the other witnesses proposed by
the applicant, finding that their evidence would not be of particular
assistance in the case. The Commission finds that these decisions
cannot be considered to be arbitrary or to disclose any indication of
a violation of Article 6 para. 1 (Art. 6-1).
As concerns the courts' alleged failure to analyse R's special
needs and state reasons why the grandparents could not take care of R,
the Commission accepts that under specific circumstances the absence
of reasons in a court decision might raise an issue as to the fairness
of the procedure which is guaranteed by Article 6 para. 1 (Art. 6-1)
(cf., e.g., Eur. Court HR, Hadjianastassiou v. Greece judgment of 16
december 1992, Series A no. 252, p. 16, para. 33 and No. 24949/94, Dec.
3.12.1996, D.R. 87-A p. 77).
However, the Commission notes that the judgments of the County
Administrative Court and the Administrative Court of Appeal mentioned
the facts, the relevant legal provisions applied as well as their
conclusions. With respect to R's special needs, the courts had regard
to Dr. Brune's statement. Moreover, the appellate court considered the
possibility of R's grandparents taking care of R. Thus, there is no
indication of a violation of Article 6 para. 1 (Art. 6-1) in this
respect.
Finally, the applicant alleges that the courts decided in favour
of the Council and, therefore, were not impartial. However, the
Commission finds that the applicant's submissions fail to substantiate
her claim. Moreover, nothing in the file suggests any reason to call
in question the impartiality of the courts.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy