AS TO THE ADMISSIBILITY OF
Application No. 36332/97
by Jan ENGLUND
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 May 1997 by
Jan ENGLUND against Sweden and registered on 4 June 1997 under file
No. 36332/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1956 and resident in
Norsborg, is a student. Before the Commission he is represented by
Mr Lennart Hane, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. The particular circumstances of the case
The applicant has a daughter M., born on 24 August 1990, of whom
the mother, T.R., has sole custody. The applicant has regular access
to M.
On 11 September 1996 the chairman of the Social District Council
(kommundelsnämnden) of Sjödalen-Fullersta, ("the 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"), to take M. into public care
immediately on a provisional basis. On 20 September 1996 the County
Administrative Court (länsrätten) of the County of Stockholm confirmed
the Council's decision. The Council later applied to the court for a
care order concerning the daughter under Section 1, subsection 2 and
Section 2 of the 1990 Act.
Allegedly, the applicant was given no information as to the basis
for the Council's provisional decision and its application for a care
order.
On 21 October 1996 the County Administrative Court held an oral
hearing in the case, at which T.R., her lawyer, the child's counsel,
representatives of the Council and the Council's lawyer were present
and heard. Three witnesses were heard at the hearing. Also the
applicant, who was not a party to the proceedings, appeared and
declared that he wished to attend the hearing. After asking the
parties, the court rejected the applicant's request.
By judgment of 25 October 1996, the County Administrative Court
granted the Council's application and ordered that M. be taken into
public care.
T.R. applied to the Administrative Court of Appeal (kammarrätten)
of Stockholm. The applicant requested to be heard at the hearing. By
letter of 20 November 1996, the court informed the applicant that he
was not a party to the case and therefore could not demand to be heard
at the hearing.
After having held a hearing on 27 November 1996, without the
applicant being present, the appellate court, by judgment of
9 December 1996, quashed the first-instance judgment, finding that the
compulsory care of the child was not supported by sufficient reasons.
It appears that, in simultaneous proceedings before the District
Court (tingsrätten) of Huddinge, the applicant had applied for custody
of M. Later, he adjusted his claim to concern only access to the
daughter.
b. Relevant domestic law and practice
Section 1, subsection 2 and Section 2 of the 1990 Act 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.
The rights over a child are vested with the custodian pursuant
to Chapter 6, Section 2 of the Parental Code (föräldrabalken). A parent
who does not have custody of a child has no standing in proceedings
concerning public care of the child (cf., e.g., Supreme Administrative
Court judgment of 15 February 1972, RÅ 1972 S 32).
COMPLAINTS
The applicant complains that his rights as a parent were violated
in the public care proceedings. He states that he had no access to the
documents in the case, that he had no standing in the proceedings and
that he was not heard by the courts. He does not invoke any Articles
of the Convention.
THE LAW
The applicant complains that his rights as a parent were violated
in the public care proceedings.
The Commission finds that the applicant's complaint raises an
issue under Article 8 (Art. 8) of the Convention which provides the
following:
"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 Commission recalls that family life does not require that the
members of the family live together where there exist regular contacts
and a certain dependency (cf. No. 14501/89, Dec. 6.1.92, D.R. 72,
p. 118). Furthermore, the mutual enjoyment by parent and child of each
other's company constitutes a fundamental element of family life even
when the relationship between the parents has broken down (Eur. Court
HR, Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156,
para. 58). The Commission finds that the relationship between the
applicant and his daughter falls within the concept of "family life"
as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
Therefore, it must be considered whether there has been any
interference with the applicant's right to respect for his family life.
In this connection, the Commission notes that the applicant's
family life consists of regular access to his daughter. If a parent is
denied access to a child taken into public care there would be an
interference with the parent's right to respect for family life as
protected by Article 8 para. 1 (Art. 8-1) of the Convention. In the
present case, however, the decisions of the Council and the County
Administrative Court to take the applicant's daughter into public care
did not deny the applicant his access to M. Moreover, the applicant
does not allege that the decisions restricted that access. Thus, it
appears that the applicant's family life was not affected by the
decisions in question. The Commission finds, therefore, that the
applicant's family life has not been interfered with within the meaning
of Article 8 (Art. 8) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
The Commission considers that the applicant's complaint falls to
be considered also under Article 6 para. 1 (Art. 6-1) of the Convention
which, in so far as relevant, provides as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing by [a] ...
tribunal ..."
The Commission recalls that in order for Article 6 para. 1
(Art. 6-1) to apply to the proceedings in question it must first be
ascertained whether there was a dispute over a "right" which can be
said, at least on arguable grounds, to be recognised under domestic law
(cf., e.g., Eur. Court HR, W. v. the United Kingdom judgment of 8 July
1987, Series A no. 121-A, p. 32-33, para. 73).
The applicant has a right of access to his daughter. However, the
Council's and the County Administrative Court's decisions did not
involve an examination of that right. Moreover, not being the custodian
of his daughter, the applicant has no standing, under Swedish law, in
proceedings concerning public care. Consequently, his civil rights were
not determined in the proceedings in question and Article 6 para. 1
(Art. 6-1) of the Convention does not apply in the present case.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy