FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29536/95
by Catherine BILLEBRO-TACHRITZOGLOU
against Sweden
The European Court of Human Rights (First Section), sitting on 16 January 2001 as a Chamber composed of
MrsW. Thomassen, President,
MrsE. Palm,
MrL. Ferrari Bravo
MrGaukur Jörundsson,
MrC. Bîrsan,
MrJ. Casadevall,
MrR. Maruste, judges,
andMrM. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 20 September 1995 and registered on 13 December 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Swedish national, born in 1962 and living in Märsta. She is represented before the Court by Mr Bernardo Bernales, a lawyer practising in Stockholm. The respondent Government were represented by Mr Carl Henrik Ehrenkrona, Ministry of Foreign Affairs.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has a daughter, A., born in 1986, of whom she has sole custody. She divorced A.’s father in 1989 and has not seen him since 1990. The father was expelled from Sweden in 1991.
In October 1993 the Social Council (socialnämnden) of Salem received a report regarding A. from the student welfare team at A.’s school. According to the report, A. had been absent from school 23 days out of 40 during her first semester, mostly due to other reasons than illness. Those days A. attended school she was often late. The school nurse was in contact with the applicant almost every day to ensure that A. attended school. According to A.’s nursery-school teacher, similar problems were known at A.’s nursery-school stage.
On 11 March 1994 the Social Council decided to arrange a contact family for A. one weekend every month with a view to helping and supporting the applicant. However, the decision was never implemented as, subsequently, more far-reaching measures were deemed necessary.
On 20 May 1994 the president of the Social Council decided, pursuant to 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”), immediately to take A. into public care on a provisional basis. The adduced reasons for the decision can be summarised as follows.
A.’s school attendance was more regular at the end of 1993 and the beginning of 1994. During this period great efforts were made by the school to support this positive development. However, the same problems as before subsequently recurred. The applicant was asked to contact the Children’s Psychiatric Clinic and an appointment was made. However, the applicant did not show up as agreed. On 19 April 1994 the school nurse and the school psychologist visited the applicant’s home at approximately 11 a.m. They found A. still undressed. The applicant told them that A. was ill. However, A. got dressed and accompanied them to school. The school psychologist had the impression that A. was glad that they had come to “save her”. The next day the applicant accepted that she and her daughter be admitted to a children’s home at Geneta for an investigation. The placement, which started on 21 April 1994, was supposed to last for 4-6 weeks. From a report of the Geneta home it appeared that the applicant at the start of her stay there was in a state of mental distress. Both the applicant’s and A.’s personal hygiene was deemed to be poor. On 6 May 1994 the applicant suddenly declared that she no longer agreed to be investigated or to remain at the home. A. remained, however, and the staff at the home had the impression that A. developed
favourably after the applicant had left. She was more happy and she made progress in her school work. At the same time the applicant was becoming more nervous and showed signs of stress. On 17 May 1994 the applicant terminated the contract for the investigation.
The decision of 20 May 1994 was confirmed by the County Administrative Court (länsrätten) in Stockholm on 3 June 1994 and by the Administrative Court of Appeal (kammarrätten) in Stockholm on 10 June 1994. A. remained at the Geneta children’s home.
The Social Council later applied to the County Administrative Court for a care order concerning A. under Section 1 § 2 and Section 2 of the 1990 Act.
According to the report of the social authorities accompanying the application, A. had had a worrying and unstable childhood. The Social Council adduced also an opinion of the school psychologist dated 2 June 1994, a report from the Geneta children’s home dated 1 June 1994, and a psychotherapist’s opinion of 15 June 1994. According to the school psychologist, A. had been attending school regularly and had taken active part in the school work since her placement at the Geneta home. She had also taken good care of her personal hygiene and seemed happy and relieved about her situation. The psychologist deemed that A. and the applicant needed further qualified assistance to ensure A.’s continued positive development. The report from the Geneta home concluded that the ties between A. and her mother were not particularly strong, that the applicant did not understand her daughter’s needs and generally lacked the ability to take care of A. in a safe and normal way, and that the applicant, on occasion, had obstructed the investigation. The psychotherapist, who had examined A. at the Geneta home, confirmed that the applicant lacked the capacity to see to it that A.’s needs were met. The applicant did not express any concern about A.’s absence from school. Instead, she showed clear signs of isolation and a distorted sense of reality. The psychotherapist concluded that A. needed to be placed with foster parents.
On 28 June 1994 the County Administrative Court held an oral hearing in the case. The court heard the applicant, her legal counsel, A.’s legal counsel and representatives of the Social Council. Furthermore, two witnesses proposed by the applicant gave evidence. A.’s counsel supported the Council’s application.
By a judgment of 5 July 1994 the County Administrative Court granted the application and issued a care order concerning A. The Court found that the applicant, due to problems with her former husband and her work, money and neighbours, had had difficulties in taking care of her daughter. These problems had not impaired A.’s development until she began school in the autumn of 1993. Thereafter, however, A. had frequently been absent from school and the applicant had been unable or unwilling to see to it that A. went to school, although extensive efforts had been made by the Social Council to help the applicant in this respect. The Court considered this to be a serious deficiency in the applicant’s care of her daughter. It found that the applicant did not understand A.’s needs and was not able to give her adequate support. Having regard to the above-mentioned opinions of the school psychologist and the psychotherapist, the Court also considered that the applicant showed signs of isolation and a distorted sense of reality. It concluded that the applicant’s lack of care constituted a clear risk of impairment of the health and development of A.
On 10 August 1994 A. was placed with foster parents at Tystberga.
The applicant appealed against the County Administrative Court’s judgment and on 8 December 1994 the Administrative Court of Appeal held a further hearing in the case. It heard the same persons as the County Administrative Court and, in addition, it heard evidence from five further witnesses, three of whom had been adduced by the applicant.
On 5 January 1995 the appellate court rejected the appeal. It noted that A. had frequently been absent and had arrived late on numerous occasions during her first school year. Largely, these problems could not be explained by illness or other impediments. The situation had not improved. The applicant had admitted that she had been mentally worn out during the autumn of 1993 and the spring of 1994 and that her care of A., to some extent, had been lacking in that she had failed to see to it that A. attended school. Having regard to the medical certificates in the case, the Court found that the applicant had been mentally unstable and unable to meet her daughter’s needs at the time of the Social Council’s provisional care decision. Although the applicant’s social situation had improved somewhat thereafter and although she was at the time seeing a psychiatrist in order to solve her problems, the Court considered that she was still too unstable and that the public care of A. should thus continue.
On 20 March 1995 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal.
At regular intervals the Social Council decided on the continued care of A. and on the applicant’s access to A. Initially, the applicant met A. every third weekend from Friday to Sunday in the applicant’s home. After the applicant on two occasions – in December 1994 and August 1995 – had returned A. to the foster parents several days late, the Council decided, on 22 August 1995, to restrict the applicant’s access to A. Accordingly, as from 1 September 1995, the applicant was allowed to meet A. every second Friday between 1 and 5 p.m. at a venue designated by the Council and in the presence of a social welfare officer. Their contacts by telephone were limited to two calls per week. The restrictions were confirmed by later decisions of the Council. The applicant did not appeal against these decisions to the administrative courts.
On 1 August 1996 the Social Council again confirmed the above-mentioned access restrictions with the modification that every second meeting between the applicant and A. could take place in the home of the foster parents.
The applicant appealed against the latter decision to the County Administrative Court, claiming access every second weekend between Friday and Sunday in her own home without a social welfare officer being present. She further claimed extended contacts by telephone.
On 20 November 1996, after having held an oral hearing, the County Administrative Court rejected the appeal. The applicant appealed to the Administrative Court of Appeal, where a new oral hearing was held. On 25 March 1997 the appellate court decided that the applicant be entitled to see her daughter in her own home every second weekend from Friday afternoon to Sunday afternoon without the presence of a social welfare officer. The Court also annulled the imposed limitations on telephone contacts.
It appears that A. is still in public care.
B.Relevant domestic law
According to Section 1 § 2 and Section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the young person’s custodian. The decision whether to place a young person under public care is made by the County Administrative Court following an application from the Social Council.
Under Section 6 of the 1990 Act, the Social Council may order the immediate taking into care of a young person (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks facing the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. If such a decision by the Social Council cannot be awaited, an order on taking into public care may be made by the president of the Council. A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld pending the Court’s judgment regarding the application for public care.
It is the responsibility of the Social Council to ensure that the greatest possible provision is made for the young person’s need of access to his or her parents. If it is necessary in view of the purpose of the care, the Council may decide how the right of access shall be exercised (Section 14 of the 1990 Act). An appeal against a Council decision on access may be lodged with the County Administrative Court (Section 41 § 3).
COMPLAINTS
1.The applicant complains that the taking into care of A. violated her right to respect for her family life under Article 8 of the Convention.
2.The applicant also contends that the restrictions on access imposed after 22 August 1995 constitute further violations of Article 8 of the Convention.
THE LAW
1.The applicant complains that the taking into care of A. violated her right to respect for her family life. She invokes Article 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 and morals, or for the protection of the rights and freedoms of others.”
The Government maintain that the taking into public care of A., which indeed constituted an interference with the applicant’s rights under Article 8 of the Convention, was in accordance with the law and had a legitimate aim, namely the protection of A.’s health and development.
As to the question whether this was necessary in a democratic society, the Government submit the following. A.’s school attendance was very poor during her first semester. It was obvious that she was not feeling at all well and that she needed help and special support to be able to develop in a positive way. The applicant was in a poor mental condition and was also in need of help. It was impossible to carry out the necessary examination of A.’s condition on a voluntary basis. The applicant was of the opinion that there was no risk of A.’s health or development being impaired. The problem was the applicant’s denial of her daughter’s needs and also that she did not understand the qualified treatment required for herself and A. The applicant was not able to understand and satisfy A.’s needs, not even such basic needs as personal hygiene and clothing.
The Government adduce that the reasons for taking A. into care were clearly relevant and sufficient in order constitute a “pressing social need”. Furthermore, the authorities involved saw no realistic alternative to compulsory care. The courts based their reasoning on direct contact with the applicant and on evidence given orally before them. The Government maintain that the interference with the applicant’s rights under Article 8 of the Convention was proportionate to the aim pursued. Consequently, the care decision must be considered necessary for the purposes of Article 8. Taking all the circumstances into account, the Government hold that the decision was justified and that no violation of Article 8 has occurred.
The applicant submits that A. has not shown any symptoms of mental or physical distress. The truth is that A. is a perfectly normal child. Allegedly, the only reason for taking A. into care was her frequent absence from school, which cannot be considered a relevant and sufficient reason for the measure in question. The reasons for the poor school attendance were partly that A. was ill, partly that the applicant was physically and mentally worn out. In addition, the applicant and A. were harassed by their neighbours.
The applicant further claims that she herself does not suffer from any mental problems endangering her daughter’s health and development. Moreover, there was no need to take A. into care as the applicant’s problems could have been solved if she had received adequate help from the Social Council. The applicant agreed to move to the Geneta children’s home because she had the impression that she and A. would get the necessary support there. As the situation turned out, it was evident to the applicant that the purpose of the stay was to investigate and find arguments for taking A. into care.
The applicant submits a psychiatric opinion dated 20 October 1996, from which it appears that the psychiatrist in question has read through the case file and has been in contact with the applicant from September 1994 to October 1996. The psychiatrist’s conclusion is that the applicant shows no signs of mental illness, that she has shown evidence of being a loving and caring mother, and that there is no reason to limit the applicant’s contacts with A.
The Court finds that the taking into public care of A. interfered with the applicant’s right to respect for her family life as ensured by Article 8 § 1 of the Convention. It must therefore be examined whether this interference was justified under the terms of Article 8 § 2.
In this respect, the Court 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 § 2 and it must be “necessary in a democratic society” for those aims.
As regards the first condition, the Court finds that the relevant decisions were in conformity with Swedish law, namely Sections 1, 2 and 6 of the 1990 Act.
The Court further finds that the interference had a legitimate aim under Article 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 Court’s established case-law, 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 Court furthermore has to take into account that a margin of appreciation is left to the Contracting States. However, the Court’s review is not 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., e.g., the Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, pp. 31-32, §§ 67-68).
In the present case, the Court recalls that the County Administrative Court and the Administrative Court of Appeal, in their respective judgments, found that the applicant’s care of A. had been seriously lacking as she had failed to see to it that A. attended school. As a consequence, A. had been frequently absent and had also, on numerous occasions, arrived late. The applicant was deemed unable to understand her daughter’s needs and give her adequate support. Having regard to the medical certificates in the case, the courts also considered that the applicant was mentally unstable and had a distorted sense of reality.
The Court also takes into account that the courts, before giving their judgments, had held hearings at which the applicant, her legal counsel, A.’s legal counsel, representatives of the Social Council and several witnesses were heard. Thus, the courts cannot be said to have intervened without adequate knowledge of the case.
In the light of the foregoing the Court finds that the decision to take A. into public care was supported by relevant and sufficient reasons and that, having regard to their margin of appreciation, the Swedish authorities were reasonably entitled to believe that it was necessary to take A. into care. Accordingly, the Court concludes that the relevant decisions can reasonably be regarded as “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.The applicant contends that also the restrictions on access imposed after 22 August 1995 constitute violations of Article 8 of the Convention.
However, the Court is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation, as Article 35 § 1 of the Convention provides that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.
The Court notes that the applicant appealed against the Social Council’s decision of 1 August 1996. At the time when she made the present application, the case was still pending before the Administrative Court of Appeal. The Court has subsequently made its ruling, in favour of the applicant. As to the other decisions by the Council imposing restrictions on her access to A., the applicant failed to appeal to the administrative courts.
It follows that this part of the application must be rejected for non-exhaustion of domestic remedies under Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’BoyleWilhelmina Thomassen
RegistrarPresident
Full & Egal Universal Law Academy