AS TO THE ADMISSIBILITY OF
Application No. 20877/92
by Helena ENGDAHL
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 February 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 2 November 1992
by Helena ENGDAHL against Sweden and registered on 3 November 1992
under file No. 20877/92;
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 is a Swedish citizen born in 1956. She is a
secretary resident in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
On 9 November 1991 the applicant gave birth to a son, Issa.
On 25 November 1991 Issa, the applicant and the father of Issa
were admitted to the crisis and investigation home Eurenii Minne in
application of Section 6 of the 1980 Social Services Act (social-
tjänstlag 1980:620).
On 10 December 1991 Issa's father was transferred to the
psychiatric institution of Beckomberga.
On 23 January 1992 the applicant and Issa were discharged from
Eurenii Minne. On the same day the Chairman of Social District Council
no. 4 of Stockholm (sociala distriktsnämnden nr 4 i Stockholms stad)
provisionally decided pursuant to Section 6 of the 1990 Act on the Care
of Young Persons (lag 1990:52 med särskilda bestämmelser om vård av
unga, "the 1990 Act") to place Issa in public care in a children's
home. The Chairman had regard to information from Eurenii Minne showing
that the applicant was not able to give Issa sufficient care and that
his health and development was thus being jeopardised.
On 6 February 1992 the County Administrative Court (länsrätten)
of Stockholm held a hearing in camera. The Court had regard to a
memorandum of 29 January 1992 submitted by two members of the staff at
Eurenii Minne.
The applicant, represented by official counsel, objected to the
placing of Issa in public care and submitted, in particular, that as
from 1987 she was no longer undergoing compulsory psychiatric treatment
but was receiving therapy on a voluntary basis. She was well aware of
her psychiatric symptoms. Subsequent to her discharge from compulsory
treatment she had complied with all instructions by the medical
authorities. She was living in stable conditions. She was no longer
cohabiting with Issa's father and had no intention of cohabiting with
him again. The allegations in the memorandum were out of context and
irrelevant and the decision of the Social District Council was
formulated in general terms. Her possible need for social assistance
could be fulfilled through voluntary arrangements.
Issa, represented by official counsel, requested that the
placement in public care be confirmed.
The County Administrative Court decided, by a majority, not to
confirm the placement order, considering that there was no reason to
believe that the applicant would not, as she had already done,
voluntarily accept assistance in the care of Issa. The applicant was
aware of her symptoms and her contacts with the medical institutions
had been correct.
The Social District Committee appealed, alleging that the
applicant had fetched Issa from the nursing home, that she had refused
to let investigators from the social authority in to her home and that
she was unable to care for Issa without extensive assistance.
On 11 February 1992 the Administrative Court of Appeal (kammar-
rätten) of Stockholm provisionally ordered that Issa be placed in
public care pending further proceedings in the case.
The applicant objected to the appeal, submitting, in particular,
that she had refused to be visited by the social welfare officials
between 7 and 9 February 1992, a weekend, as she had wanted to spend
some time alone with Issa for the first time since his birth.
Issa's official counsel concurred with the Social District
Committee's appeal, having regard to the applicant's symptoms and her
attitude towards assistance given on a voluntary basis.
On 21 February 1992 the Administrative Court of Appeal quashed
the decision of the County Administrative Court and upheld the
provisional care order.
On 12 March 1992 the County Administrative Court pursuant to
Section 1, para. 2 and Section 2 of the 1990 Act and following an oral
hearing in camera on 2 March 1992 finally placed Issa in public care.
It had regard to the fact that the applicant was a single mother and
further stated the following:
"... It appears, mainly from the report submitted by
Dr. Weronica Mattsson, deputy chief doctor at the [open]
institution for psychiatric rehabilitation of Södermalm,
that [the applicant]...suffers from a chronic psychiatric
disturbance diagnosed as a schizophrenic process. She is
known within the field of psychiatric treatment at
Södermalm since 1984 and since 1987 she has been in
[voluntary] treatment... Her treatment...consists of
injections every two weeks... She further has pills which
she can take against temporarily stronger anxiety as well
as...sleeping pills. She has further participated in
psychosocial therapy... As a result of interruptions in her
medication [she] has on a two occasions been subjected to
compulsory treatment. At present, however, she is aware of
her need for regular medication and is managing [her
medication] well. Already several years ago she attained a
stable condition without schizophrenic symptoms. This has
made it possible for her to continue leading a fairly
normal life. The prognosis is good provided the treatment
continues. She is, however, still on sick leave from her
work.
As [the applicant] had become pregnant the Social District
Council began investigating whether [she] and her then
cohabitant, the father of [Issa], who also suffers from a
psychiatric illness, were capable of taking care of a
child.
Following the birth of [Issa] the family was enrolled at
the Eurenii Minne in order to investigate the relations
between the respective parents and [Issa] and the parents'
caring capability and possible needs for assistance. The
father has not been able to go through with the
investigation, as in December 1991 he became acutely ill
and was taken into care under the 1966 Act on Compulsory
Psychiatric Treatment (lag 1966:293 om beredande av sluten
psykiatrisk vård i vissa fall).
From the investigation conducted at Eurenii Minne it
appears... that the time the applicant spent [there] has
shown her to be competent to a large extent to care [for
Issa] in the practical and physical sense of the word. She
is not, however, sufficiently capable of conceiving and
meeting [Issa's] needs, in particular his mental needs. She
is severely restricted from having a deeper relation and
social intercourse with [Issa]. [She] has not been able to
understand and process these problems. Her own problems and
needs affect to a large extent her capacity to establish
and maintain a close relation to Issa. Neither [the
applicant] nor [Issa's father] can at present on their own
meet Issa's needs.
Mr. Jan Elmqvist, deputy manager of Eurenii Minne, has been
heard as a witness at the Social District Council's request
and has submitted the following in connection with the
written opinion. In an investigation of the social
intercourse between parents and their child regard is had
to the parents' capability of entering into [a relation
with the child], their capability of conceiving the child
in a realistic way, their control of impulses and their
awareness of problems. Under these criteria [the
applicant's] capability of caring [for Issa] must at
present be considered severely restricted. ... There is a
lot to suggest that [she] finds it difficult to perceive
and assess Issa's needs, the changes caused by his growing
and development and to... adjust to those [changes]. Regard
has then also been had to the fact that parents facing a
crisis such as being subjected to an investigation
sometimes behave differently... In [the applicant's] case
the staff have not noticed that she has really been
affected... Part of her problem is rather that due to her
medication upon which she is totally dependent she becomes
so subdued that she cannot feel the anxiety that she should
sometimes feel with regard to [Issa]. Moreover, because of
her medication she sometimes sleeps so deeply that a
child's crying does not wake her up... There has been a
certain anxiety among the staff members caused by the fact
that Issa has been sleeping often and for lengthy periods
of time, sometimes for up to 11-12 consecutive hours. The
reason for this [sleeping pattern] is unknown.
[The applicant] has submitted... that she is aware of her
illness and that she realises that she needs medication in
order to feel well. After the birth of [Issa] she has only
very rarely taken sleeping pills. [Issa] is a child very
much longed for and she loves him. She has no problems in
caring for him... She may, however, need assistance with
cleaning. One of the side effects of the medication is that
she becomes almost pedantic. She associates with, among
others, persons with serious problems. This cannot be
wrong. She also has other friends. As from about a month
ago she is no longer living with Issa's father... She feels
that when considering Issa's situation too much regard has
been had to his father's illness. Issa is a healthy and
normally developed boy... It has not been shown that he
suffered during the period when he was staying in her home.
She has given explanations as to the problems referred to
in the submission by Eurenii Minne. She felt nervous and
pressured when staying there.
At [the applicant's] request Ms. Karin Tivenius, a
psychotherapist..., has been heard as witness regarding
[the applicant's] capability of caring for Issa.
[Moreover,] Ms. Birgitta Einarsson, a nurse... and midwife,
has been heard... regarding her observations during [the
applicant's] pregnancy and her capability of accepting
advice and support... Although the witnesses have expressed
themselves in [the applicant's] favour neither one of them
has, however, seen [the applicant and Issa] together.
Issa's official counsel has referred to certain
observations made by the foster parents while [the
applicant] has been visiting Issa. These observations point
in the same direction as the opinion by Eurenii Minne.
...
[In the Court's view] the basis for assessing whether [the
applicant's] psychiatric disturbance is of such a character
that she is unable to care for Issa in an adequate way
must... consist of the written evaluation of [the relation
between] [the applicant and Issa] at... Eurenii Minne as
well as of the witness statement submitted in this respect.
During the investigation period... it has been observed
that [the applicant] is well capable of handling the
practical care of Issa. Her caring capability in the mental
sense has, however, been insufficient. [Her] strong
dependency on medication raises doubts as to how she would
be able to care for Issa alone. When she feels in need of
being alone there is nobody in her home who can assist in
taking care of Issa. [She] does not seem to have any close
relatives nearby... Her social network... largely consists
of friends with mental problems of their own. [T]his does
not affect [Issa's]... environment in any positive way. It
does not seem realistic [to expect] [her] to care for Issa
on her own even with significant support from the social
welfare authority. It should also be noted that [she] has
clearly stated that she is in no need of any help with the
care of Issa... The conditions in [her] home jeopardise
Issa's health and development and he should therefore be
given [public] care... in accordance with the 1990 Act..."
Issa's official counsel had supported a final placement in public
care.
The applicant appealed, submitting that her psychiatric
disturbance did not prevent her from caring for Issa in an adequate
way. She refuted the finding that to a large extent she had been
associating with persons with mental problems of their own.
The Social District Council referred inter alia to a psychiatric
report concerning the applicant and submitted that on some occasions
she had handed Issa over to persons incapable of caring for him, this
showing that she was considering her own needs more important than
those of Issa.
Issa's counsel stated that the applicant's difficulties in
realising Issa's all needs had increased as he had developed and was
demanding more from his parents. The support which the applicant had
agreed to receive was not sufficient. If she were to take care of Issa
in her home a further person would have to be available throughout the
twenty-four hours.
On 23 June 1992 the Administrative Court of Appeal following an
oral hearing in camera rejected the appeal.
On 21 July 1992 the Supreme Administrative Court (regerings-
rätten) refused leave to appeal.
Relevant domestic law
Under Section 1, para. 2 of the 1990 Act a child shall be placed
in public care in one of the circumstances mentioned in Section 2 if
it can be assumed that the necessary care cannot be provided with the
consent of that person or those persons who have custody of him.
Public care shall be provided if there is a particular reason to
believe that the health or development of the child may be jeopardised
because of insufficient care or any other circumstance in the home
(Section 2).
A Social Council or, in urgent cases, its Chairman or another
member appointed by the Board may provisionally place a young person
under 20 years of age in public care, if it is likely that the person
is in need of care under the 1990 Act and provided a court decision
cannot be awaited having regard to inter alia the danger to his health
or development (Section 6).
Section 6 of the Social Services Act grants individuals a right
to assistance by the Social Council for their maintenance and living
in general provided their needs cannot be met otherwise.
Under Section 16 of the 1971 Act on the Procedure before
Administrative Courts (förvaltningsprocesslag 1971:291, "the 1971 Act")
the publicity of oral hearings shall, mutatis mutandis, be governed by
Chapter 5 of the Code of Judicial Procedure (rättegångsbalken). An
administrative court may further decide to hold an oral hearing in
camera provided there is reason to believe that the submissions at the
hearing are to be protected under the Secrecy Act (sekretesslag
1980:100).
Under Section 34 of the 1971 Act an appeal against a decision in
a procedural matter shall, with certain exceptions not relevant in the
present case, be lodged in connection with the appeal against the
decision on the merits.
COMPLAINTS
1. The applicant complains of the taking into public care of Issa.
She refutes the allegations made in the memorandum drawn up on the
basis of her stay with Issa at Eurenii Minne.
2. The applicant further complains of restrictions of her freedom
of movement while staying at Eurenii Minne. She alleges that she was
refused permission to leave the institution on Christmas Eve and New
Year's Eve 1991 and that she needed permission from a social welfare
official to go for longer walks.
3. The applicant finally complains that the oral hearing before the
County Administrative Court on 6 February 1992 was held in camera.
The applicant invokes no particular provision of the Convention
or any of its Protocols.
THE LAW
1. The applicant complains of the taking into public care of Issa.
The Commission has considered this complaint under Article 8
(Art. 8) of the Convention, which reads in its relevant parts:
"1. Everyone has the right to respect for his private and
family life...
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...,for the protection of health ..., or for the
protection of the rights and freedoms of others."
It is common ground that 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 e.g. Eur.
Court H.R., Rieme judgment of 22 April 1992, para. 54, to be published
in Series A no. 226-B). The right to respect for family life includes
a right to the taking of measures with a view to the parent or parents
being reunited with the child (ibid., para. 69).
The taking into care of Issa clearly interfered and continues to
interfere with the applicant's right to respect for her family life.
Such an interference constitutes a violation of Article 8 (Art. 8) of
the Convention unless it is "in accordance with the law", has one or
more aims that are legitimate under Article 8 para. 2 (Art. 8-2) and
is "necessary in a democratic society" (ibid., paras. 55-56).
It has not been alleged that the interference was not "in
accordance with the law". The Commission, for its part, accepts that
the interference was in accordance with Swedish law.
The relevant domestic law was aimed at protecting the health and
the rights and freedoms of Issa. The Commission finds no indication
that the provisions were applied for any other purpose. The
interference thus had aims that were legitimate under Article 8 para. 2
(Art. 8-2).
The notion of necessity implies that the interference with a
right under Article 8 para. 1 (Art. 8-1) must correspond to a "pressing
social need" and, in particular, that it must be proportionate to the
legitimate aim pursued. In determining whether an interference is
"necessary in a democratic society" a margin of appreciation is to be
left to the Contracting State. The Convention organs' review, however,
is not limited to ascertaining whether the State exercised its
discretion reasonably, carefully and in good faith. Moreover, the
Convention organs must look at the impugned decisions in the light of
the case as a whole and determine whether the reasons adduced to
justify the interference are "relevant and sufficient" (Eur. Court
H.R., Olsson no. 2 judgment of 27 November 1992, para. 87, to be
published in Series A no. 250). When determining these questions the
Convention organs should take into account that Article 8 (Art. 8)
includes a procedural requirement that in child-care cases the parents
must have been sufficiently involved in the decision-making process
(e.g. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July
1987, Series A no. 121, pp. 28-29, paras. 63-65).
The Commission notes that both the provisional and the final care
orders were based on careful examination by the County Administrative
Court and the Administrative Court of Appeal following oral hearings.
The reasons for the placing of Issa in public care were, in essence,
that the applicant was suffering from a psychiatric disturbance
requiring medication and that, as a single mother, she was unable to
care properly for her child.
These reasons are clearly relevant and in the Commission's view
also sufficient to justify the placement of Issa in public care. The
Commission further observes that the applicant was represented by
counsel throughout the proceedings. There is thus no indication that
she was not sufficiently involved in the decision-making process.
Taking all the circumstances of the case into account and having
regard to the State's margin of appreciation the Commission is
satisfied that the Swedish authorities had and have relevant and
sufficient reasons for placing and keeping Issa in public care.
The Commission thus concludes that the interference with the
applicant's right to respect for her family life, being proportionate
to the legitimate aim pursued, could and can be considered justified
under Article 8 para. 2 (Art. 8-2) as being necessary in a democratic
society for the protection of the rights and freedoms of Issa.
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 further complains of restrictions of her freedom
of movement while staying at Eurenii Minne.
The Commission does not consider it necessary to determine
whether this complaint should be examined under Article 5 (Art. 5) of
the Convention or under Article 2 of Protocol No. 4 (P4-2) to the
Convention as it is, in any event, manifestly ill-founded for the
following reason.
The Commission notes that the applicant's stay at Eurenii Minne
was not a deprivation of liberty as referred to in Article 5 (Art. 5)
of the Convention, but was based on Section 6 of the Social Services
Act and occurred with her consent. Consequently, any rules which may
have restricted her movements during her stay at the institution must
be considered to have been accepted by her in connection with her
admission. Moreover, she was free at any time to interrupt the
investigation undertaken at the institution. The restrictions cannot
therefore raise any problem under Article 5 (Art. 5) of the Convention
or under Article 2 of Protocol No. 4 (P4-2).
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains of the fact that the oral hearing
before the County Administrative Court on 6 February 1992 was held in
camera.
The Commission observes that, following this hearing, the County
Administrative Court ruled in the applicant's favour. The question
therefore arises whether the applicant can claim to be a "victim",
within the meaning of Article 25 (Art. 25) of the Convention, of a
violation of her rights under Article 6 para. 1 (Art. 6-1) of the
Convention, which reads, in its relevant parts:
"In the determination of his civil rights..., everyone is
entitled to a... public hearing...[T]he... public may be
excluded from all or part of the trial..., where the
interests of juveniles or the protection of the private
life of the parties so require..."
The Commission notes that the decision of the County
Administrative Court was subsequently quashed by the Administrative
Court of Appeal and that a final care order was issued by the Country
Administrative Court following a second hearing which also took place
in camera. This decision was upheld by the Administrative Court of
Appeal, again following a hearing in camera. Finally, the Supreme
Administrative Court's consideration of whether the applicant should
be granted leave to appeal took place without a hearing.
The Commission considers that the question regarding the
applicants "victim" status under Article 25 (Art. 25) of the
Convention, and the question whether the absence of a public hearing
discloses any violation of Article 6 (Art. 6) of the Convention, need
not be resolved as, under Article 26 (Art. 26) of the Convention, it
may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
In the present case the applicant has not shown that she objected
to a hearing in camera either before the County Administrative Court
or that she raised this issue in her submissions to the administrative
courts of appeal. In these circumstances she has not established that
she has availed herself of the domestic remedies at her disposal.
Moreover, an examination of the case does not disclose any
circumstances which might have absolved the applicant, according to the
generally recognised rules of international law, from raising this
issue in the proceedings referred to.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy