AS TO THE ADMISSIBILITY OF
Application No. 24721/94
by Anna-Carin BURLIND
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 July 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
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 27 April 1994 by
Anna-Carin Burlind against Sweden and registered on 28 July 1994 under
file No. 24721/94;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, a Swedish citizen born in 1956, resides at
Gothenburg. She has three daughters, V, born in 1975, R, born in 1985,
and N, born in 1991.
On 6 April 1993 the Social District Council (Stadsdelsnämnden)
of Majorna, Gothenburg decided to apply to the County Administrative
Court (Länsrätten) at Gothenburg for a care order concerning R and N
under Section 1, subsection 2 and Section 2 of the Act with Special
Provisions on the Care of Young Persons (Lagen med särskilda
bestämmelser om vård av unga, 1990:52). These provisions state that
compulsory 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.
Before deciding to apply for a care order, the Social District
Council had held a meeting during which it had heard the applicant, her
lawyer, her mother and her two sisters.
Later, the County Administrative Court held a hearing at which
the applicant, her lawyer, her sisters, the children's counsel,
representatives of the Social District Council and a social expert
(socialkonsulent) from the County Administrative Board (Länsstyrelsen)
were heard. The children's counsel and the social expert supported the
Social District Council's application. The Court further had at its
disposal medical certificates from a Children's Psychiatric Clinic
(Barn- och ungdomspsykiatrisk mottagning) concerning the children and
from a neurologist concerning the applicant and written statements from
R's school and N's day-care centre.
By judgment of 30 April 1993, the County Administrative Court
granted the application and ordered that R and N be taken into public
care. The Court found that the applicant's insufficient care of R and
N and the conditions in the home endangered the children's health and
development. It noted, inter alia, that the applicant in January 1992
had been severely assaulted by N's father, that before and after this
incident she had had drinking problems, that she had attempted to
commit suicide shortly after the incident in February 1993 and that she
had received assistance from the social authorities on several
occasions. The Court further made the following conclusions:
(translation)
"The investigation does not conclusively show how serious
[the applicant's] drinking problems are. At the oral
hearing, she has testified that she has a tendency to
overconsume alcohol on festive occasions. This has
repeatedly put her in very serious situations affecting
both herself and her children. She has in a short period
of time consumed so much alcohol that, on three occasions,
she has been taken into custody pursuant to the Act on
the Taking into Custody of Intoxicated Persons (Lagen
om omhändertagande av berusade personer m m, 1976:511).
Furthermore, she has repeatedly attempted to commit
suicide. This indicates that she lacks a normal custodian's
understanding of children's need of security, attention and
care and that she gives priority to herself and her own
problems. Even if she feels today that she is out of her
crisis and the conditions in the home are stable, it is
evident both from the written submissions in the case and
from the information that has emerged during the oral
hearing that, for a long time past, there is a need of care
which [the applicant] - in spite of her good intentions -
has not been able to satisfy.
The children have - in so far as can be ascertained - not
yet suffered any serious mental disturbance, but they have
clearly been affected by the conditions in their home to
such an extent that care is required. [The applicant's]
inability to understand the children's needs has caused
considerable deficiencies in the care of them. ..."
The applicant appealed to the Administrative Court of Appeal
(Kammarrätten) of Gothenburg. After having held a hearing at which it
heard the applicant's eldest daughter, V, and the same persons as the
County Administrative Court except for the social expert and the
applicant's sisters, the appellate court, on 1 September 1993, upheld
the County Administrative Court's judgment. On 2 November 1993 the
Supreme Administrative Court (Regeringsrätten) refused the applicant
leave to appeal.
COMPLAINTS
The applicant complains that the taking into care of her children
has violated her rights under Article 8 of the Convention.
THE LAW
The applicant complains of a violation of her rights under
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 and morals, or for the protection of the rights and
freedoms of others."
The applicant contends that it was not necessary to take her
daughters into public care, as, at the time of the courts' decisions,
the family's situation had stabilised and she could take care of her
daughters herself. She claims that she suffered from her injuries
caused by the assault in January 1992 for a very long time and that she
contacted the social authorities and asked for help during this period.
Among other things, she suggested that the children be given public
care on a voluntary basis. The social authorities, however, rejected
her requests.
The Commission finds that the taking into public care of the
applicant's daughters R and N 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 (Art. 8-2) and it must be "necessary in a
democratic society" for that or those aims.
As regards the first condition, the Commission finds that the
relevant decisions were in conformity with Swedish law, namely
Section 1, subsection 2 and Section 2 of the Act with Special
Provisions on the Care of Young Persons.
The Commission further finds that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests
of the children, 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 children.
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. However, the
Commission'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. Eur. Court H.R., Olsson 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, in its judgment of 30 April 1993, found that the
applicant's insufficient care of R and N and the conditions in the home
endangered the children's health and development. It concluded, inter
alia, that the applicant had drinking problems which, repeatedly, had
put her in very serious situations affecting both herself and her
children. It further noted that she had attempted to commit suicide on
different occasions.
The Commission further recalls that the County Administrative
Court and the Administrative Court of Appeal, before giving their
judgments, had held hearings at which the applicant, her lawyer, the
children's counsel and representatives of the Social District Council
were present and heard. The County Administrative Court further heard
a social expert from the County Administrative Board and the
applicant's sisters and the Administrative Court of Appeal heard the
applicant's eldest daughter, V. In addition, the courts had regard to
written submissions. Thus, the courts cannot be said to have intervened
without adequate knowledge of the case.
In the light of the foregoing the Commission finds that the
taking into care of R and N was supported by relevant and sufficient
reasons and that, having regard to their margin of appreciation, the
Swedish authorities were reasonably entitled to think that it was
necessary to take the children into care. Accordingly, the Commission
concludes that the relevant decisions 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 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.
Secretary to the Second Chamber Acting President of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy