In the case of Rieme v. Sweden*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr B. Walsh,
Mr A. Spielmann,
Mr N. Valticos,
Mrs E. Palm,
Mr I. Foighel,
Mr A.N. Loizou,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 28 November 1991 and
28 March 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 60/1990/251/322. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") and by the Government of the
Kingdom of Sweden ("the Government") on 14 and 17 December 1990
respectively, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 12366/86) against
Sweden lodged with the Commission under Article 25
(art. 25) by Mr Antero Rieme, a Finnish citizen, on 28 July 1986.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Sweden recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).
The object of the Government's application and of the request was
to obtain a decision as to whether or not the facts of the case
disclosed a breach by the respondent State of its obligations under
Article 8 (art. 8).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30). The Finnish Government,
having been informed by the Registrar of its right to intervene in
the proceedings (Article 48, sub-paragraph (b) of the Convention
and Rule 33 para. 3(b)) (art. 48-b), did not indicate any intention
of so doing.
3. The Chamber to be constituted included ex officio
Mrs E. Palm, the elected judge of Swedish nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 21 February 1991
the President drew by lot, in the presence of the Registrar, the
names of the seven other members, namely, Mr Thór Vilhjálmsson,
Mr F. Gölcüklü, Mr B. Walsh, Mr A. Spielmann, Mr N. Valticos,
Mr I. Foighel and Mr A.N. Loizou (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Government, the Delegate of the Commission and the lawyer
for the applicant on the organisation of the procedure (Rules 37
para. 1 and 38). Thereafter, in accordance with the orders made in
consequence, the Registrar received the applicant's memorial on 24
April and the Government's memorial on 13 June 1991.
In a letter of 9 July the Secretary to the Commission informed
the Registrar that the Delegate would submit her observations at
the hearing.
5. On 15 November 1991 the Commission filed a number of documents
which the Registrar had sought from it on the President's
instructions.
On 25 September and 22 November 1991 the registry received,
from the applicant, further details on his Article 50 (art. 50)
claim, which the Court accepted (Rule 50), and documents from both
the applicant and the Government, as requested by the President.
6. As further directed by the President, the hearing took place
in public in the Human Rights Building, Strasbourg, on
25 November 1991. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Corell,
Ambassador, Under-Secretary for
Legal and Consular Affairs,
Ministry for Foreign Affairs, Agent,
Ms I. Stenkula, Legal Adviser,
Ministry of Health and Social Affairs,
Ms E. Jagander, Legal Adviser,
Ministry for Foreign Affairs, Advisers;
(b) for the Commission
Mrs G.H. Thune, Delegate;
(c) for the applicant
Mr L. Hane, advokat, Counsel.
The Court heard addresses by Mr Corell for the Government, by
Mrs Thune for the Commission and by Mr Hane for the applicant, as
well as their replies to its questions.
AS TO THE FACTS
I. Particular circumstances of the case
A. Background
7. Mr Antero Rieme, a Finnish citizen born in 1940, resides at
Tumba, Sweden, and is a metal worker by profession. He has a
daughter, Susanne, together with Mrs J., with whom he cohabited
from January 1976 until March 1977. The latter had legal custody
of Susanne from the time of her birth on 28 October 1976. In 1980
the applicant met Mrs Anita Mäkinen. They have been living
together since that year and have been married since early 1983;
she has taken the name of Anita Rieme.
8. On 26 September 1977, when Susanne was eleven months old, the
Southern Social District Council (södra sociala distriktsnämnden)
of Södertälje ("the Social Council") decided that she should be
taken into public care pursuant to sections 25(a) and 29 of the
Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960 Act"),
because of her mother's alcohol problems. Shortly afterwards, she
was placed in a foster home - with the Forsberg family - where she
stayed until she moved to her father's home in August 1989 (see
paragraphs 23-24 below). She returned to the foster home around
Christmas 1989 (see paragraph 25 below).
9. In January 1978 the applicant applied to the District Court
(tingsrätten) of Södertälje for legal custody of Susanne. In a
custody report to the court, dated 21 September 1978, the social
welfare authorities opposed his request, recommending instead that
a special legal guardian be appointed. The report observed, inter
alia, that the applicant had been reported several times for
offences of drunkenness. It also noted that Susanne had become
completely integrated into the foster family and that the Forsberg
children had accepted her as their own sister. Mr and Mrs Forsberg
had taken on their role as foster parents fully conscious of the
realities of the situation. They were prepared to take care of
Susanne for as long as necessary, on the understanding that this
might be until adulthood. Mr Rieme withdrew his request, allegedly
because the social welfare authorities had "threatened" to revoke
his right of access to Susanne.
10. On 30 November 1981 the applicant again asked the District
Court to grant him legal custody.
As appears from the minutes of the court's hearing on 17 March
1982, the court dismissed Mr Rieme's request for a provisional
transfer of custody, so that the social welfare authorities could
carry out a speedy examination of the question of custody. The
relevant report was completed on 27 June 1983. It noted, inter
alia, that according to a statement by the foster parents to the
social welfare authorities, Susanne was not looked upon as a
"foster child" - the expression was not even used in the foster
home. Moreover, they had stated that they did not know at the
outset how long Susanne's placement with them would last but that
it had become permanent. The report concluded that it was not in
Susanne's best interests to transfer the custody to the applicant.
Instead, custody should be given to a third person.
11. Nevertheless, by judgment of 28 September 1983, the court
ordered that the custody of Susanne be transferred to Mr Rieme,
having regard to, inter alia, the following considerations. Whilst
Susanne's placement in the foster home seemed consistent with her
best interests, the applicant had shown active concern for her and
had endeavoured to maintain contact. To an outsider, his
endeavours could appear to have been unwise and might not
correspond to a modern view of children's needs. However, one
should not attach undue importance to the applicant's lack of
insight in this matter. His wish to take care of Susanne was not
unusual and seemed natural. Furthermore, a transfer of custody
would not lead to termination of Susanne's placement in the foster
home but would, on the other hand, enable the applicant to have the
issue legally determined in the light of any changes which might
occur in their situation. Moreover, a transfer could stimulate
further contacts and would be valuable to Susanne in the long run.
The Social Council should see to it that such contacts did not
conflict with her best interests.
12. Susanne's mother, Mrs J., appealed to the Svea Court of Appeal
(Svea hovrätt) which, however, confirmed the transfer of custody in
a judgment of 21 June 1984.
B. Termination of public care and prohibition on removal
13. In the meantime, on 11 October 1983, the applicant had asked
the Social Council, firstly, to terminate the public care of
Susanne and, secondly, to grant him access to her at regular
intervals. The social welfare officers responsible for the case
carried out a review of the question of removing Susanne from the
foster home and, on 16 October 1984, following a hearing at which
the applicant, his lawyer and his wife - Mrs Anita Rieme - were
present, the Social Council granted the care claim but did not
determine the access claim. At the same time, it decided, pursuant
to section 28 of the Social Services Act 1980
(socialtjänstlagen 1980:620), to prohibit the applicant from
removing Susanne from the foster home, on the ground that there was
"a risk, which was not of a minor nature", that her mental health
could thereby be harmed. This decision was based on the social
welfare officers' report and recommendation to the Social Council,
dated 28 September 1984.
14. The report, which was attached to the recommendation, set out
the background of the case and analysed the relationships between
father and daughter, as well as interviews which the social workers
had carried out with the Rieme and Forsberg spouses. It also
reviewed Susanne's health and development and her need to remain
with the Forsberg family. The report relied on a psychiatric
opinion, appended thereto, from the Institution for Child and Youth
Psychiatry ("PBU") in Stockholm which was dated 7 June 1984 and
signed by Mr Jarkko Rantanen, psychologist, and Dr Sari Granström,
chief physician. The opinion observed, inter alia, the following:
Susanne had been living in the foster home since she was
eleven months old. Her contacts with the biological mother had
been interrupted whereas those with the applicant had continued on
a regular basis. However, in her eyes, the foster parents assumed
the role of her parents; she had not developed equally strong
emotional ties with the applicant and his wife. Similarly, she
considered the other children (three natural daughters and one
foster son) in the Forsberg home as her own brother and sisters.
Removing Susanne from this home would involve too many changes for
her: she would not only lose her much needed feeling of security
and psychological support derived from the Forsberg home, her
friends, her school and daily routines but she would also be faced
with unreasonably difficult problems of adaptation in a new
environment. Susanne had shown a tendency to react physically to
significant changes. She suffered from various psychosomatic
disorders - including enuresis and recurring stomach pains which
were likely to get worse in the event of a removal. This would
also entail a risk of her becoming increasingly depressed and
distant. Before removal could take place, Susanne's relationship
with the applicant and his wife needed to evolve further. The
question of removal should not be discussed with her until she had
become sufficiently mature and she should not be subjected to
further examinations related to this issue within the next few
years.
Further contacts between the applicant and Susanne should
develop in collaboration with the foster parents. If those ties,
which had already been established through regular meetings, were
to be able to continue, the applicant would need a great deal of
support in order to be capable of maintaining and furthering their
relationship, with due regard to the needs of his daughter.
C. First set of proceedings challenging the prohibition
on removal
15. The applicant lodged an appeal with the County Administrative
Court (länsrätten) in Stockholm against the prohibition on removal.
The court held a hearing in camera on 22 January 1985 at which the
applicant and his wife were present and represented by counsel. As
witnesses, it heard the foster parents, at the applicant's request,
and Dr Granström and Mr Rantanen, at the request of the Social
Council.
In its judgment of 25 January 1985, the court recalled that
the Social Council's decision to terminate the public care of
Susanne implied that the applicant's personal circumstances did not
as such constitute an obstacle to reuniting them. On the other
hand, the court had regard to the Social Council's assessment,
based on the above-mentioned psychiatric opinion (see paragraph 14
above), that remaining in the foster home was in Susanne's best
interests. She was a sensitive, fragile and vulnerable girl who
would lose her feeling of security and show certain psychosomatic
symptoms if she were to be immediately removed from the foster
home. Against this background, the court considered that removal
would involve a risk, which was not of a minor nature, of harming
her mental health. On balancing Susanne's interests against those
of the applicant, for which the court expressed great sympathy, it
found that there were preponderant reasons in favour of allowing
Susanne to remain in the foster home until further notice.
Consequently, the appeal was dismissed.
16. Mr Rieme appealed to the Administrative Court of Appeal
(kammarrätten) in Stockholm, requesting that the prohibition on
removal be lifted and, in the alternative, that the duration of the
prohibition be limited. The court dismissed the appeal by judgment
of 2 August 1985, which contained the following reasons:
"The aim of the provisions of section 28 of the Social
Services Act is to safeguard the best interests of the child.
Among the circumstances which must be considered in that
context are the age of the child and his or her abilities and
emotional ties. Furthermore, regard must be had, inter alia,
to the child's own wishes and to how long the child has been
cared for in the [foster] home.
Susanne ... has been cared for in the foster home since
October 1977 and thus for the major part of her life. She is
considered to be a sensitive child and has had certain
psychosomatic symptoms. After the County Administrative
Court's examination of the question of the removal of Susanne,
it appears that the relationship between Susanne and [the
applicant] has developed in a favourable manner. The
Administrative Court of Appeal finds, however, that an
enforced removal still involves a risk of harming Susanne's
mental health, a risk which is not of a minor nature. The
request to lift the prohibition from taking Susanne away from
the foster home cannot therefore be granted. The question of
when the prohibition can be lifted depends on how the contacts
between [the applicant] and Susanne develop in the future.
The Administrative Court of Appeal finds that the prohibition
cannot at present be limited in time."
17. On 23 September 1985 the applicant applied for leave to appeal
to the Supreme Administrative Court (regeringsrätten). Leave was
refused on 26 March 1986.
D. Particulars concerning the applicant's contacts with
his daughter
18. The social welfare officers' above-mentioned report (see
paragraphs 13-14 above) provided the following information on the
applicant's contacts with Susanne:
"When Susanne was taken into public care and placed in a
foster home in 1977, Antero Rieme maintained quite regular
contacts with her. Until early February 1978 he visited her
about once a week. Subsequently, the frequency of visits
decreased and, for a period, he did not visit Susanne at all.
During this period [he] kept himself informed about [her]
well-being through Esko Forsberg, who was a colleague at that
time. The following year the visits became more regular
[although] with varying frequency. Susanne recognised [her
father] and called him 'my second daddy'. [He] showed
interest in [her]. In August 1981 [he] expressed the wish
that [she] come to his and Anita's ... home for some weekends.
He planned to apply for the custody of the child and wanted
[the care] to be gradually transferred to him. The social
welfare officer then responsible for the case would not assist
in arranging for Susanne's transfer until the question of
custody had been determined, but approved of [her] visiting
the applicant occasionally at weekends, when one of the
Forsberg spouses was to accompany her. It was also decided
that [the applicant] should visit Susanne in the foster home
once a month.
In connection with her review of the question of custody,
dated [27 June 1983], Yvonne Zäll, Head of Section, considered
also the issue of a right of access. It was agreed that the
entire Forsberg family should visit the Rieme couple and,
moreover, that Susanne should visit them, accompanied by Minna
Forsberg. In the beginning, Susanne would not go alone -
without Riita and Minna Forsberg - but after a while it became
easier for her to be on her own with the Rieme spouses. She
has only been there at daytime, as she did not want to stay
overnight. It follows from the review of the question of
custody that Susanne was happy about the father's visits to
the [foster] family and that the foster parents' attitude to
them was positive.
Since the District Court decided that the custody of Susanne
should be vested in Antero Rieme, the Social Council ...
reviewed the question of removal. An agreement was reached
with Antero Rieme that access, pending the review, should take
place as follows: Susanne, Antero and Anita Rieme should meet
two Saturdays a month, one Saturday ... [at Forsbergs' home]
and one Saturday ... [at] the Riemes'.
Access should take place on condition that Susanne was
positive about [it]. The father wished to have the access
extended so as to receive Susanne for visits at his home every
other weekend from Friday night to Sunday night and for a week
in connection with the weekend of New Year's Eve. Since it
was of importance not to disturb or confuse Susanne, the
social welfare authorities and [the applicant] reached a
written agreement that no changes should be made concerning
access pending the examination [of the question of removal].
Nevertheless, in practice the access arrangements were changed
since the social workers agreed with Antero Rieme and the
Forsberg family that Susanne could spend the night at the
Riemes' ... home, should she so wish. So far she has not.
She has clearly stated that she does not wish to stay
overnight at [their] home. She has not been able to provide
any reasons for this. It has also happened that the Rieme
spouses came to the foster home merely to collect her [,
without actually visiting her in her home environment]."
19. According to the applicant, the social welfare authorities had
accepted, subject to further arrangements, that the child could
stay overnight at his home in the month of May 1984. However, he
stated that this did not materialise, apparently because they had
told the foster parents not to mention anything to Susanne about
it.
20. In a memorandum of 14 June 1985 addressed to the
Administrative Court of Appeal (in the proceedings concerning
prohibition on removal) the social welfare officer responsible for
the case stressed that contacts between Susanne and the applicant
should evolve slowly and gradually. Her own wishes in this respect
were of particular importance. At her own request, she had stayed
overnight three times at her father's home during the last couple
of months. She had clearly indicated that, for the time being, she
only wished to spend one night at a time there and that she did not
wish to join her father and his wife for a fortnight's holiday in
Finland in the summer of 1985.
However, according to the applicant, Susanne had expressed a
desire to go with them on holiday to Finland. When he contacted
the social welfare officer on the issue, the latter maintained, in
her letter dated 24 June 1985, that Susanne had stated the contrary
to her and that one should respect Susanne's choice. Meanwhile,
she hoped that the applicant and Susanne would get to know each
other better by the time of the next school vacation or another
holiday. In addition, under section 28 of the Social Services Act,
the Social Council had power to decide where Susanne was to stay.
Consequently, the applicant was not in a position to decide the
matter.
21. As from May 1986 Susanne stayed overnight every second week-
end with the applicant and his wife. She spent parts of her summer
holidays with them in 1986 and 1987 in Finland and about one week
at Christmas 1987, as well as Easter 1988 and New Year 1988-89.
22. In a memorandum of 15 December 1987 to the Ministry for
Foreign Affairs, apparently prepared in connection with the
proceedings before the Commission, the Social Council noted that
the measures taken by the social welfare authorities to bring about
closer contact between the applicant and his daughter, possibly
leading to her removal from the foster home, had essentially
consisted of providing support to Susanne and the foster home in a
manner aimed at making her meetings and holidays with the applicant
as natural as possible. Furthermore, the social welfare
authorities had supported initiatives taken by the foster parents
to improve their contacts with the applicant.
However, according to the memorandum, the applicant had
declined contact with the social welfare authorities since the
autumn of 1985, making it more difficult for them to work for a
better relationship between him and the foster parents.
Furthermore, Susanne was mature for her age and had become
increasingly able to express her own views. The social welfare
authorities had considered as decisive her wishes as to how the
contacts with the applicant were to be arranged. She had stayed in
the foster home since the age of one and had strong emotional ties
with the foster parents. The continued development of the contacts
between the applicant and Susanne should therefore take place at
her own pace and removal should only occur when she desired it.
E. Second set of proceedings challenging the prohibition on
removal
23. On 1 September 1989 the applicant again asked the Social
Council to lift the prohibition on removal. At that time, Susanne
had been staying with him since school started in August. After
reviewing the matter, the social welfare officers submitted a
report to the Social Council, noting that Susanne's psychosomatic
symptoms had disappeared a few years earlier and that her contacts
with the applicant and his wife had been close and had increased
steadily at her own pace. The relationship between the applicant
and the foster parents had been very tense over the years and for
long periods they had not had any contact at all. Susanne had
found herself in the difficult position of having to move backwards
and forwards between the families. However, she seemed to have
coped with the situation and had showed attachment to both sets of
parents who were now co-operating in her best interests. Since the
end of August 1989 she had been staying with the Riemes, with her
own and the foster parents' agreement, and was seeing the foster
parents whenever she wished. In view of this, the social welfare
officers recommended that the prohibition on removal be lifted.
24. On 20 November 1989 the Social Council terminated the
prohibition on removal.
F. Recent developments
25. Around Christmas 1989 Susanne returned to the Forsbergs' home,
where at her own wish she has been living ever since. In January
1990 the Forsbergs and the Riemes and Susanne met with the social
welfare authorities in Södertälje. On this occasion, the applicant
did not seem prepared to accept her staying with the Forsberg
family, whereas the latter stated that they wished her to do so and
would not force her to leave. The social welfare authorities have
as yet not taken any formal decision on the matter.
The applicant and his daughter have been in contact since her
return to the Forsberg family; for instance, she visited him at
Easter 1991.
II. Relevant domestic law
26. Decisions concerning the applicant's child were based on the
Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960 Act"),
the Social Services Act 1980 (socialtjänstlagen 1980:620) and the
1980 Act containing Special Provisions on the Care of Young Persons
(lagen 1980:621 med särskilda bestämmelser om vård av unga - "the
1980 Act").
The Social Services Act 1980 contains provisions regarding
supportive and preventive measures effected with the approval of
the individuals concerned. The 1980 Act (1980:621), which provided
for compulsory care measures, complemented the Social Services Act
1980; when they entered into force on 1 January 1982, they replaced
the 1960 Act. In general, decisions taken under the 1960 Act,
which were still in force on 31 December 1981, were considered to
have been taken under the 1980 Act. As from 1 July 1990 the
relevant legislation has been amended (see paragraphs 40-43 below).
A. Compulsory care
27. Under section 25(a) of the 1960 Act, the competent local
authority in child-care matters - the Child Welfare Board
(barnavårdsnämnden) or, in Stockholm and Gothenburg, the Social
District Council - was obliged to intervene:
"[if] a person, not yet eighteen years of age, is maltreated
in his home or otherwise treated there in a manner endangering
his bodily or mental health, or if his development is
jeopardised by the unfitness of his parent or other guardians
responsible for his upbringing or by their inability to raise
the child."
28. If the Board found that the child's situation corresponded to
that described in section 25 of the 1960 Act, it had, before
resorting to care, to endeavour to remedy the matter by preventive
measures (förebyggande åtgärder). These could consist of one or
more of the following steps: advice, material support, admonition
or warning, orders pertaining to the child's living conditions, or
supervision (section 26). If such measures proved insufficient or
were considered pointless, the Board had to place the child in care
(section 29).
29. The conditions for compulsory care under the 1980 Act were set
out in section 1, which read:
"Care is to be provided pursuant to this Act for persons under
eighteen years of age if it may be presumed that the necessary
care cannot be given to the young person with the consent of
the person or persons having custody of him and, in the case
of a young person aged fifteen or more, with the consent of
the young person.
Care is to be provided for a young person if
1. lack of care for him or any other condition in the home
entails a danger to his health or development, or
2. the young person is seriously endangering his health or
development by abuse of addictive substances, criminal
activity or any other comparable behaviour.
... "
30. It is primarily the responsibility of the municipalities to
promote a positive development for the young. For this purpose
each municipality has a Social District Council, composed of lay
members assisted by a staff of professional social workers.
31. The Child Welfare Board - or, in Stockholm and Gothenburg, the
Social District Council - had power to take decisions on public
care pursuant to the 1960 Act. Under the 1980 Act, such decisions
were taken by the County Administrative Court, on application by
the Social Council.
When a decision on public care had been taken, the Social
Council (formerly the Child Welfare Board under the 1960 Act) was
to implement it, by attending to the practical details of such
matters as placement, education and other treatment of the child
(sections 35-36 and 38-41 of the 1960 Act and sections 11-16 of the
1980 Act).
The 1980 Act required the care of the child to be carried out
in such a way as to enable him to have close contacts with his
relatives and to visit his home. This requirement could mean that
the child returns to his home, after a period, to live there,
although he is still formally under public care (section 11 of the
1980 Act).
32. Under section 42(1) of the 1960 Act, compulsory care had to be
discontinued as soon as the aims of the care measures were deemed
to have been achieved.
The corresponding rule in the 1980 Act provided that the
Social Council was obliged to monitor carefully the care and to
terminate it when it was no longer necessary (section 5).
33. At the relevant time, section 41 of the Social Services
Ordinance 1981 (socialtjänstförordningen 1981:750) laid down that
a care decision based on unsatisfactory conditions in the child's
home must be reconsidered by the Social Council regularly and at
least once a year.
Both before and after the entry into force of the 1980 Act, a
parent who has custody of the child could, under the general
principles of Swedish administrative law, at any time request that
the decision on public care be terminated.
34. According to a report by a special committee on social affairs
(Betänkande av Socialberedningen - SOU 1986:20), the social welfare
authorities in a number of municipalities have been operating a
distinction between support placement (stödplacering) and
substitute placement (ersättningsplacering), the latter designating
a more permanent form of placement.
B. Prohibition on removal
35. The Social Council could issue a prohibition on removal under
section 28 of the Social Services Act, which read as follows:
"The Social Council may for a certain period of time or until
further notice prohibit the guardian of a minor from taking
the minor from a home referred to in section 25 [i.e. a foster
home], if there is a risk, which is not of a minor nature, of
harming the child's physical or mental health if separated
from that home.
If there are reasonable grounds to assume that there is such
a risk, although the necessary investigations have not been
completed, a temporary prohibition may be issued for a maximum
period of four weeks, pending the final decision in the
matter.
A prohibition issued under this section does not prevent a
removal of the child from the home on the basis of a decision
under Chapter 21 of the Parental Code."
The preparatory work (Prop. 1979/80:1, p. 541) relevant to
this provision mentioned that a purely passing disturbance or other
occasional disadvantage to the child was not sufficient ground for
issuing a prohibition on removal. It stated that the factors to be
considered when deciding whether or not to issue such a prohibition
included the child's age, degree of development, character,
emotional ties and present and prospective living conditions, as
well as the time he had been cared for away from the parents and
his contacts with them while separated. If the child had reached
the age of 15, his own preference should not be opposed without
good reasons; if he was younger, it was still an important factor
to be taken into account.
The Standing Social Committee of the Parliament stated in its
report (SOU 1979/80:44, p. 78), inter alia, that a prohibition
might be issued if removal could involve a risk of harm to the
child's physical or mental health, thus even where no serious
objections existed in regard to the guardian. The Committee also
stressed that the provision was aimed at safeguarding the best
interests of the child and that those interests must prevail
whenever they conflicted with the guardian's interest in deciding
the domicile of the child. It also took as its point of departure
the assumption that a separation generally involved a risk of harm
to the child. Repeated transfers and transfers which took place
after a long time, when the child had developed strong links with
the foster home, should thus not be accepted without good reasons:
the child's need for secure relations and living conditions should
be decisive.
36. Section 28 of the Social Services Act did not apply to
children who were being cared for in foster homes under section 1
of the 1980 Act. As long as such care continued, the right of the
guardian to determine the domicile of the child was suspended.
Whilst that right in principle revived on the termination of such
care, it could be further suspended by an application of section 28
by the social welfare authorities.
37. Under section 73 of the Social Services Act, a decision taken
under section 28 could be appealed to the administrative courts.
In practice, besides the natural parents both the child concerned
and the foster parents have been allowed to lodge such appeals. In
the proceedings before the administrative courts, a special
guardian may be appointed to protect the interests of the child,
should these come into conflict with those of the child's legal
guardian.
C. Regulation of access
1. During compulsory care
38. The 1960 Act provided that the Child Welfare Board could
regulate a parent's right of access to his child in care to the
extent that it found this reasonable in the light of the aims of
the care decision, the upbringing of the child or other
circumstances (section 41).
Under the 1980 Act, restrictions on access could be imposed by
the Social Council, in so far as this was necessary for the
purposes of the care decision (section 16). Such decisions could
be appealed to the administrative courts by both the parents and
the child.
2. During prohibition on removal
39. On 18 July 1988 the Supreme Administrative Court held that a
decision by the Social Council to restrict the access rights of the
appellants, Mr and Mrs Olsson, while a prohibition on removal under
section 28 of the Social Services Act was in force had no legal
effect and that no appeal to the administrative courts would lie
against such a decision. The court stated:
"Under section 16 of the [1980 Act] ..., a Social Council may
restrict the right of access in respect of children taken into
public care under this Act. As regards the right of access to
children while a prohibition on removal is in force, no
similar power has been vested in the Social Council in the
relevant legislation. As there is no legal provision giving
the Social Council power to restrict the right of access
during the validity of the prohibition on
removal ..., the instructions given by the Chairman of the
Social Council in order to limit the right of access have no
legal effect. Nor can any right of appeal be inferred from
general principles of administrative law or from the European
Convention on Human Rights."
D. New legislation
40. The provisions of the Social Services Act which related to the
prohibition on removal are now contained, in amended form, in the
1990 Act containing Special Provisions on the Care of Young Persons
(lagen 1990:52 med särskilda bestämmelser om vård av unga - "the
1990 Act"). This entered into force on 1 July 1990.
41. Section 24 of the 1990 Act, which corresponds to the previous
section 28 of the Social Services Act (see paragraph 35 above),
provides that the County Administrative Court may, on application
by the Social Council, impose a prohibition on removal for a
certain time or until further notice. The condition for such a
prohibition is that there must be
"an apparent risk (påtaglig risk) that the young person's
health and development will be harmed if he is separated from
the home".
Although this wording differs from that of section 28 of the
Social Services Act, it was not intended, according to the
preparatory work (Prop. 1989/90:28, p. 83), to introduce thereby a
new standard.
42. According to section 26 of the 1990 Act, the Social Council
shall, at least once every three months, consider whether a
prohibition on removal is still necessary. If it is not, it shall
lift the prohibition.
43. Pursuant to section 31, the Social Council may regulate the
parent's access to the child if it is necessary in view of the
purposes of the prohibition on removal.
PROCEEDINGS BEFORE THE COMMISSION
44. In his application of 28 July 1986 to the Commission
(no. 12366/86), Mr Rieme alleged that his requests for transfer of
custody and for termination of the prohibition on removal had not
been determined "within a reasonable time" by the Swedish courts,
as required by Article 6 (art. 6) of the Convention. Moreover,
contrary to this provision, he had not received a fair hearing. He
further claimed that the maintenance in force of the prohibition on
removal over such a long period and the absence of an adequate
right to access to the child had given rise to a violation of his
right to respect for family life, as guaranteed by Article 8
(art. 8). He invoked, in addition, Article 17 (art. 17).
45. On 5 July 1989 the Commission declared the complaints under
Article 6 (art. 6) inadmissible and the remainder of the
application admissible.
In its report of 2 October 1990 (Article 31) (art. 31), the
Commission expressed the opinion, by eight votes to five, that
there had been a violation of Article 8 (art. 8). The full text of
the Commission's opinion and of the five separate opinions
contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 226-B of Series A of the Publications of the Court), but a
copy of the Commission's report is obtainable from the registry.
_______________
46. The Court notes that the applicant's daughter did not take
part and was not represented in the proceedings before the
Convention institutions.
FINAL SUBMISSIONS TO THE COURT
47. At the hearing on 25 November 1991, the Government confirmed
the final submission in their memorial, inviting the Court to find
that "the facts of the case do not reveal any violation of the
Convention".
AS TO THE LAW
I. SCOPE OF THE CASE
48. The applicant raised several issues under Article 6
(art. 6) of the Convention (see paragraph 44 above). However, the
case, as delimited by the Commission's decision on admissibility,
concerns only his complaint that the Swedish authorities had acted
in a way which hindered reunion with his child, in breach of
Article 8 (art. 8).
49. The Government maintained that the Convention institutions'
examination under Article 8 (art. 8) should not extend beyond
26 March 1986, which is the date of the last decision by a domestic
court in the case. The applicant had not availed himself of the
opportunity, which was open to him, to institute fresh proceedings
before domestic courts and had therefore failed to exhaust domestic
remedies in respect of facts which had occurred after that date.
Additionally, the Government warned against a tendency of
applicants not to pursue their claims domestically, once the
Commission had declared their application admissible. Mr Rieme had
not submitted a fresh request for revocation of the prohibition on
removal until 1 September 1989. In his case, a decision on
admissibility was taken on 5 July 1989. On the other hand, the
Government considered that facts which took place after
26 March 1986 were of interest to the extent that they could shed
light on facts before that date.
50. The Court notes that Mr Rieme did not complain of an isolated
act but rather of a situation in which he had been for some time
and which would continue until it was ended by a decision to lift
the prohibition on removal. The prohibition applied until further
notice and, as the Commission observed, apart from the passage of
time, there were no significant new facts which could justify fresh
proceedings to have it quashed. Were Article 26 (art. 26) to make
mandatory the taking of such steps, which by their very nature may
be repeated an indefinite number of times, it might create a
permanent barrier to bringing matters before the Convention
institutions (see, inter alia, the Guzzardi v. Italy judgment of
6 November 1980, Series A no. 39, pp. 29-30, para. 80).
51. Furthermore, whilst the Court's jurisdiction in contentious
matters is determined by the Commission's decision declaring the
originating application admissible, it is competent, in the
interests of economy of proceedings, to take into account facts
occurring during the course of the proceedings in so far as they
constitute a continuation of the facts underlying the complaints
declared admissible (see, amongst many other authorities, the
Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, pp.
28-29, para. 56).
52. For these reasons, the Government's preliminary objection is
rejected.
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
53. The applicant complained that the Swedish authorities had
hindered his reunion with his daughter Susanne in violation of
Article 8 (art. 8) of the Convention, which provides:
"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 Government rejected this contention, whereas the
Commission agreed that there had been a breach of this provision.
A. Existence of an interference
54. The mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life, and the
natural family relationship is not terminated by reason of the fact
that the child is taken into public care (see, amongst many
authorities, the Margareta and Roger Andersson v. Sweden judgment
of 25 February 1992, Series A no. 226-A, p. 25, para. 72).
55. The implementation of the public care order, the subsequent
prohibition on removal and its maintenance in force clearly
constituted, and this was not disputed, an interference with the
applicant's right to respect for family life (see, ibid., and the
Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156,
p. 24, para. 58).
56. Such an interference constitutes a violation of
Article 8 (art. 8) unless it was "in accordance with the law", had
an aim or aims that is or are legitimate under Article 8 para. 2
(art. 8-2) and was "necessary in a democratic society" for the
aforesaid aim or aims (see, for example, the above-mentioned Olsson
judgment, Series A no. 130, p. 29, para. 59).
B. "In accordance with the law"
57. The applicant made several allegations to the effect that the
interference was not "in accordance with the law".
1. "Substitute placement"
58. In the applicant's contention, the social welfare authorities
had, contrary to Swedish law, placed Susanne in the Forsberg family
with the intention that she should never be reunited with him and
had promised them that they would be able "to keep the child for
good". She had been subjected to so-called "substitute placement"
(ersättningsplacering). This was a practice applied by the social
welfare authorities in certain cases, whereby it was decided at the
very outset that the placement was to be of a long-lasting or
permanent character (see paragraph 34 above), thus substituting the
foster parents for the natural parents. As a consequence, little
effort was made to reunite the child and the natural parents.
In support of his allegation, the applicant relied mainly on
an observation made in the custody review of 21 September 1978 (see
paragraph 9 above) that Susanne had become completely integrated
into the foster family and that the Forsberg spouses, who had taken
on their role as foster parents fully aware of the realities of the
situation, had been prepared to take care of her for as long as
needed and had accepted the prospect of her staying there until
adulthood. Furthermore, he referred to a statement in the custody
review of 27 June 1983 (see paragraph 10 above), according to which
the foster parents had not considered Susanne a "foster child" -
indeed the expression had not even been used in their home.
Moreover, they had stated that they had not known at the outset how
long Susanne's placement with them would last but that it had now
become permanent. In addition, the applicant pointed out that the
social welfare authorities had been opposed to his obtaining
custody of Susanne and had compelled him to have less contact with
her pending the two above-mentioned custody reviews. These reviews
- which had lasted for nine months and for one year and three
months, respectively - had unduly delayed his reunion with the
child. A further delay of almost a year had been caused by the
Social Council's review of the question of removal (see paragraph
13 above), carried out between October 1983 and September 1984, the
purpose of which had been to hinder reunion.
59. However, in the Court's view, the above does not bear out the
allegation that the foster parents were promised that they could
keep the child. Nor is there any indication that the social
welfare authorities acted in a manner inconsistent with Swedish
law, or with a view to hindering reunion. On the contrary, as
appears from the case-file, they sought to facilitate contact
between the applicant and his daughter and to enable them to deepen
their relationship (see paragraphs 18, 21 and 22 above). They
terminated the public care order in 1984 - shortly after the
applicant received custody of the child - and lifted the
prohibition on removal in 1989 (see paragraphs 11-13 and 23-24
above).
2. The law relating to prohibition on removal
60. The applicant did not dispute before the Court that the
prohibition on removal had a basis in Swedish law. However, he
argued that the law in question did not afford him adequate
protection against arbitrary interference. Not only was the
criterion in section 28 of the Social Services Act ("risk ... of
harming the child's ... mental health") vague but also the
preparatory work to this provision (see paragraph 35 above)
contained several unrelated and even contradictory criteria.
61. Like the Government and the Commission, the Court is unable to
share this view, for the reasons expressed in the
above-mentioned Eriksson judgment (Series A no. 156, pp. 24-25,
para. 60) in the following terms:
"Section 28 itself is admittedly worded in rather general
terms and confers a wide measure of discretion. However, it
is scarcely feasible to set out in advance all the
circumstances in which the removal of a child from a foster
home may cause a serious risk of harming his physical or
mental health. If the authorities' entitlement to act were to
be confined to cases where actual harm had already occurred,
the effectiveness of the protection which the child requires
would be unduly reduced. Moreover, in interpreting and
applying this section, the relevant preparatory work ...
provides guidance as to the exercise of the discretion it
confers and the administrative courts have competence to
review at several levels the decisions made pursuant to this
section.
Taking these safeguards against arbitrary interferences into
consideration, the scope of the discretion conferred on the
authorities by the section in question appears to the Court to
be reasonable and acceptable for the purposes of Article 8
(art. 8)."
3. Access arrangements
62. The applicant complained of not having been able to obtain a
decision by the social welfare authorities on the regulation of
access (see paragraph 13 above).
The Delegate of the Commission, for her part, stressed at the
Court's hearing that if any access restrictions were imposed while
the prohibition on removal was in force, they would lack a basis in
domestic law. She referred to the above-mentioned Eriksson
judgment (ibid., p. 25, para. 65) where it was held that:
"... the imposition of restrictions on access while a
prohibition on removal is in force has been found by the
Supreme Administrative Court to lack all legal effect as there
are no legal provisions on which any such restrictions could
be based [see paragraph 39 above]. Having regard to this
authoritative interpretation of Swedish law, the Court
concludes that the interference in question with
Mrs Eriksson's right to respect for family life did not have
the requisite basis in domestic law and was therefore not 'in
accordance with the law' for the purposes of Article 8
(art. 8)."
63. However, the Court notes that in the present case no formal
decision was taken with regard to access while the prohibition on
removal was in force. Instead, the access arrangements were the
result of co-operation between the applicant, the foster parents
and the social welfare authorities. Accordingly, access to his
daughter was gradually stepped up, so as to accommodate not only
his own wishes, but also hers (see paragraphs 20-22 above).
Consequently, the Court does not find it established that access
arrangements were imposed upon the applicant contrary to Swedish
law.
64. Having regard to the above, the Court is satisfied that the
interference was "in accordance with the law".
C. Legitimate aim
65. The applicant contended that the measures at issue did not
have a legitimate aim for the purposes of Article 8 (art. 8), as
they were taken with a view to preventing reunion between him and
the child.
66. The Court accepts that the relevant Swedish law was aimed at
protecting the "health" and "the rights and freedoms" of the child
and finds no indication that it was applied for any other purpose
in this instance (see paragraph 59 above). The interference thus
had aims that were legitimate under Article 8 para. 2 (art. 8-2).
D. "Necessary in a democratic society"
67. In the applicant's main submission, the social welfare
authorities had acted in a way calculated to hinder his reunion
with the child. In particular, the decision to prohibit removal
and its maintenance in force for over five years were not
"necessary in a democratic society". He had been unable to have
adequate access to the child. Nor had it been possible for him to
obtain a decision regulating access, despite having requested this
in connection with the termination of public care in 1984 (see
paragraph 13 above). As a consequence of the latter, no court
remedy had been available to him in respect of the access
arrangements (see paragraph 39 above).
68. On this latter point, the Court recalls that during the period
in question the access arrangements were the result of
co-operation (see paragraph 63 above).
69. The notion of necessity implies that the interference must be
proportionate to the legitimate aim pursued; in determining whether
an interference is "necessary in a democratic society", the Court
will take into account that a margin of appreciation is to be left
to the Contracting States (see, amongst many authorities, the
above-mentioned Eriksson judgment, Series A no. 156, p. 26,
para. 69).
Furthermore, it must be recalled that in cases like the
present a father's right to respect for family life under
Article 8 (art. 8) includes a right to the taking of measures with
a view to his being reunited with the child (see the above-
mentioned Eriksson judgment, Series A no. 156, pp. 26-27,
para. 71, and the above-mentioned Margareta and Roger Andersson
judgment, Series A no. 226-A, p. 30, para. 91).
70. In the Social Council's decision of 16 October 1984 and the
subsequent judgments upholding it (see paragraphs 13-17 above), the
reasons for the prohibition on removal were essentially that
Susanne - who was a very sensitive, fragile and vulnerable person -
suffered from psychosomatic problems. She had been staying with
the Forsberg family since an early age and had become deeply rooted
in that environment, where she felt secure and at home in all
respects. Separating her from this family would have led to too
many stressful changes for her and involved a risk of aggravating
her problems. It was therefore in her best interests to remain
with the Forsberg family and to develop her contacts with the
applicant in a gradual way. All these factors, on balance,
outweighed the applicant's interest in being reunited with her.
71. The Court, like the Government and the Commission, is
satisfied that these reasons were relevant and sufficient; they
provided a valid justification for the prohibition on removal and
its maintenance in force, at least up to 26 March 1986, when the
Supreme Administrative Court refused leave to appeal. In
particular, having regard to the Swedish authorities' margin of
appreciation, the interference complained of was not
disproportionate to the legitimate aims pursued.
72. As to the period after that date, the Commission considered
that, although they could not be said to have acted against
reunion, the social welfare authorities had failed to promote it
actively, as they were required to do. Moreover, taking into
account the transitional character of the kind of measure at issue,
its long duration in the present case could only be justified in
very special circumstances. The fact that the child had - at the
time when the public care order was lifted and the prohibition on
removal imposed - spent as much as seven years in the foster home,
and this since the age of one, militated in favour of a longer
transitional period than otherwise. However, while the prohibition
on removal was in force, the applicant did not have any legal
possibility to secure greater access. In view of these factors,
the Commission found that the interference was disproportionate to
the legitimate aims pursued; it was not "necessary in a democratic
society", notwithstanding Sweden's margin of appreciation, to
maintain the prohibition for over five years.
73. The Court has come to a different conclusion. As from
May 1986, Susanne stayed overnight every other weekend at the
applicant's home and spent several holidays with him and his wife
during the remainder of the period in issue (see paragraph 21
above). The measures taken in order to create closer contacts
between the applicant and his daughter had, as appears from the
Social Council's memorandum of 15 December 1987 (see paragraph 22
above), consisted mainly of providing support to Susanne and the
foster home to make her contacts with him as natural as possible.
She had been living in the foster home since an early age and had
strong emotional ties with the foster parents. In view of her age
and maturity, the relationship with her father was to evolve at her
own pace.
74. The applicant's contention that the social welfare authorities
intended to hinder reunion is, as already pointed out,
unsubstantiated. Unlike in the Eriksson case (Series A no. 156,
pp. 26-27, paras. 71-72), the Court sees no ground for criticising
their conduct in the present instance.
75. At all times the Swedish authorities acted within the law.
Having regard to their margin of appreciation, they cannot be said
not to have had relevant and sufficient reasons for keeping the
child in the foster home during the period in question.
76. Consequently, the Court does not find that the prohibition on
removal lasted for longer than could reasonably be thought
necessary.
77. Accordingly, there has been no violation of Article 8
(art. 8).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary plea as to the scope of
the case;
2. Holds that there has been no violation of Article 8
(art. 8).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg,
on 22 April 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy