AS TO THE ADMISSIBILITY OF
Application No. 16702/90
by Cecilia ERIKSSON
against Sweden
The European Commission of Human Rights sitting in private on
16 January 1992, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 March 1990 by
Cecilia ERIKSSON against Sweden and registered on 11 June 1990 under
file No. 16702/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 30 January 1991 and the observations in reply submitted
by the applicant on 15 March 1991;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1942 and resident at
Arboga. She is a geriatrics nurse. Before the Commission she is
represented by Mrs. Siv Westerberg, a lawyer practising in Gothenburg.
A. The particular circumstances of the case
The applicant has previously, on her own behalf and on behalf of
her daughter Lisa born in February 1978, brought an application before
the Commission (No. 11373/85) concerning the prohibition for the
applicant against taking Lisa from the foster home after the public
care had been terminated. On 14 July 1988 the Commission adopted a
Report under Article 31 of the Convention finding a violation of
Article 8 and Article 6 para. 1 of the Convention. The European Court
of Human Rights subsequently held that there had been violations of the
applicant's rights under Article 8 and Article 6 para. 1 of the
Convention essentially due to the long duration of the prohibition on
removal and the fact that the applicant during this period had been
unable to secure any meaningful access to her daughter with a view to
being reunited with her (Eur. Court H.R., Eriksson judgment of 22 June
1989, Series A no. 156).
Before the European Court of Human Rights delivered judgment the
Social Council (socialnämnden) of Lidingö had, on 22 October 1987,
introduced an action before the District Court (tingsrätten) of
Sjuhäradsbygden requesting that the legal custody of Lisa be
transferred from the applicant to the foster parents pursuant to
Chapter 6 Section 8 of the Parental Code (föräldrabalken). On 17
December 1987 the District Court rejected the Social Council's request
for an interim order that custody of Lisa be transferred to the foster
parents; the proceedings as such continued.
On 10 July 1989 the applicant brought proceedings before the
County Administrative Court (länsrätten) of the County of Halland
requesting that Lisa be transferred to the applicant pursuant to the
regulations in Chapter 21 of the Parental Code as she had legal custody
over her.
Later, in a letter to the Social Office (socialbyrån) of Lidingö,
which arrived on 17 July 1989, the applicant requested the Head of the
Social Office to make arrangements allowing the applicant to meet her
daughter at her home from 24 to 30 July 1989. The Head of the Social
Office replied that in the present situation the Office could not
assist in letting Lisa visit her mother as Lisa was firmly opposed to
such visits. Furthermore, the Social Office, with reference to the
Secrecy Act (sekretesslagen 1980:100), refused to supply any
information about Lisa's address during the summer holidays. The
decision not to inform the applicant about Lisa's address was appealed
against to the Administrative Court of Appeal (kammarrätten) of
Stockholm. On 29 August 1989 the Court granted the applicant's appeal
since it considered that revealing Lisa's address to her mother could
not be regarded as causing Lisa suffering of such significance as
referred to in the relevant provision of the Secrecy Act, Chapter 14
Section 4.
On 6 September 1989 the County Administrative Court refused to
transfer the child, as requested by the applicant on 10 July 1989, and
ordered the applicant to pay the legal costs of the foster parents.
The Court gave the following reasons:
(translation)
"Lisa has stayed in [the foster home] since she was 14 days
old. The contacts between her and [the applicant] have
been very sporadic, partly on account of decisions
extensively restricting access, partly because of the
existing disputes between [the applicant] and the foster
parents. Insofar as it appears from the documents [the
applicant] has not seen Lisa since December 1987.
The question whether any measures should now be taken with
a view to transferring Lisa to [the applicant] shall be
assessed in the light of the facts which are at hand today.
The fact that the prohibition on removal and the
restrictions on access in the past have reduced the
possibilities of reuniting [the applicant] and Lisa and
thereby violated their human rights cannot be decisive for
the present issue of enforcement.
In its judgment of 31 October 1988 the Administrative Court
of Appeal found that lifting the prohibition on removal and
transferring Lisa to [the applicant] would involve a risk,
which was not of a minor nature, that the child's mental
health would be jeopardised. Great importance was at that
time attached to the will of Lisa who was then ten and a
half years old and who was firmly opposed to leaving the
security she had in the foster home. It appears from the
investigations made by the Social Council ... that this
assessment was valid also in February 1989, and since then
there have been no facts which would indicate that the now
eleven and a half years old Lisa had changed her will or
that the risk of damage to her mental health in case of a
transfer would have diminished. It is therefore not
possible in the enforcement case to arrive at a conclusion
different from that reached by the Administrative Court of
Appeal less than a year ago.
However, the main reason for refusing to transfer Lisa now
is that the circumstances obviously require a determination
of the legal custody of Lisa. Such a procedure is pending
and a decision is expected within some months. After
investigations the Social Councils of both Halmstad and
Köping propose that the custody of Lisa should be
transferred to [the foster parents]. To order the transfer
of Lisa to [the applicant] in such a situation is plainly
inappropriate."
The applicant appealed to the Administrative Court of Appeal
(kammarrätten) of Gothenburg, which rejected the appeal on 27 October
1989. On 20 December 1989 the Supreme Administrative Court
(Regeringsrätten) refused leave to appeal.
In a judgment of 2 January 1990, the District Court (tingsrätten)
of Sjuhäradsbygden decided that the foster parents be appointed
custodians of Lisa. It further ordered that the applicant have the
right of access to Lisa once a month from Friday 18.00 hours to Sunday
18.00 hours and for one week during Lisa's summer holiday as from 1990.
The Court ordered that these decisions apply immediately. It gave the
following reasons:
(translation)
"Lisa is a girl who attains the age of 12 years on
24 February 1990. All her life she has stayed and has been
fostered in [the foster home]. A lot has been said in the
case about what has been done and about what has not been
done from the one and the other side respectively.
However, it is established beyond any reasonable doubt that
[the applicant] is, in all respects, a well functioning
member of society with all the qualities which may be
attributed to a good parent. But is this what the case
really is about? The longer the proceedings have lasted the
less the parties have spoken about Lisa. It appears to the
Court that a tug of war has arisen between the Council, the
Swedish administration, and [the applicant], the
individual. Of course this may be of interest, but the case
should in the first place address the issue of what is in
the best interests of Lisa. In this respect, it is of
great significance what Lisa wishes and feels herself. It
must in this context not be forgotten that Lisa will soon
be twelve years old and obviously has her own will which
ought to be respected as far as possible. The Social
Council has, as written evidence, invoked inter alia a
letter from Lisa (Annex to the judgment). The letter can
be said to speak for itself, but it undeniably expresses
the anxiety which Lisa has for, as she sees it, the risk of
separation from the two persons (the foster parents) whom
Lisa sees as her true parents. Is it not the right of a
mother, [the applicant], to be reunited with her child?
Yes, but the mother's wish in this respect must yield to
the wish of the daughter. What Lisa so badly needs is calm
and quiet. She must at last get the security which all
children need to have. Lisa has always been together with
the [foster parents] and the bonds which have thereby
arisen must not be cut off. Of course the blood-related
bonds ought also to be respected. In order to give Lisa
security and harmony for the future, the custody of her
should be transferred to [the foster parents]. On the
other hand, [the applicant] should be given a certain right
of access to Lisa, a right of access which eventually ought
to be extended..."
The applicant appealed to the Court of Appeal (hovrätten) for
Western Sweden claiming that the judgment of the District Court be
quashed or, if that request was not granted, that she be granted a
right of access to Lisa every weekend and during all her school
holidays. Furthermore, the applicant requested the Court of Appeal to
rule that the foster parents, as guardians, deliver and collect Lisa
when she visited [the applicant] and pay for all costs relatin
Appeal t
visits. This ruling should, the applicant requested, be made
immediately and remain in force until the Court of Appeal delivered
judgment.
The Social District Council requested the Court of Appeal not to
grant the applicant any access at all or alter the decision regarding
access and to decide that a third person, in whom Lisa had confidence,
be present when Lisa was to visit her mother. The Council also
requested the Court of Appeal to order that the decision of the
District Court regarding the question of access should not be
enforceable until the Court of Appeal had taken its decision on the
question of custody and access.
On 5 February 1990 the Court of Appeal rejected the applicant's
and the Social District Council's requests for interim measures
regarding the question of access.
A new request made by the applicant to quash the District Court's
decision making its judgment immediately enforceable, was rejected by
the Court of Appeal on 16 August 1990.
While the case relating to the issue of custody and access was
pending before the Court of Appeal the applicant and the foster parents
had some contact. At the beginning of January 1990 the applicant
invited Lisa to visit her over a weekend. According to the foster
father Lisa refused a meeting with the applicant. Later, the foster
parents tried to arrange a meeting in their home on 20 January 1990,
but in vain.
At that time, the applicant had already requested enforcement of
her right to access at the County Administrative Court (länsrätten) of
the County of Halland. This request was made in a letter dated 9
January 1990. The applicant specified that she wished to have access
to Lisa from 26 to 28 January 1990 and from 16 to 18 February 1990.
She furthermore requested that the enforcement be carried out with the
assistance of the police.
The foster parents, who at that time were also Lisa's legal
representatives as guardians appointed by the District Court, opposed
the applicant's request, in essence on the ground of Lisa's strong
reaction towards visiting her mother.
On 1 February 1990 the County Administrative Court refused to
order the requested enforcement. It referred to Chapter 21 Sections
5 and 6 of the Parental Code (föräldrabalken) according to which
enforcement may not take place against the wish of a child who has
attained the age of twelve years unless the Court finds it necessary
in the best interests of the child. The same applies if the child is
not yet twelve years old but has attained such a maturity that his or
her wish ought to be respected in the same way. The Court found it
established that Lisa was clearly opposed to meeting her mother alone
outside the foster home. It further found that Lisa's own wish ought
to be respected and that enforcement against her wish might involve a
major risk to her mental health.
On 13 February 1990 the Administrative Court of Appeal of
Gothenburg refused the applicant's request for enforcement with regard
to the access on 16 to 18 February 1990. On 23 February 1990 the
Supreme Administrative Court refused leave to appeal.
In a judgment of 17 January 1991 the Court of Appeal upheld the
judgment of the District Court of Sjuhäradsbydgen of 2 January 1990
concerning the custody of and the access to Lisa. The Court of Appeal
gave the following reasons:
(translation)
"If a child has continuously been cared for and brought up
in a private home other than that of the parents, and it is
obviously in the best interests of the child that this
arrangement continue and that the custody be transferred to
those who have taken care of the child, the court shall,
pursuant to Chapter 6, Section 8 of the Parental Code
(föräldrabalken), appoint them to exercise custody of the
child as specially appointed guardians.
Under the Parental Code decisions relating to custody are
as a general rule to be made in accordance with what is in
the best interests of the child.
While exercising the custody of a child, the guardian
shall, pursuant to Chapter 6, Section 11 of the Parental
Code, give, as the child grows older, increasing
consideration to its views and wishes in its personal
matters. A similar approach must be adopted when deciding
who should have custody of the child. In just over a month
Lisa will be thirteen, and will thus have reached an age
when her wishes are important. It is worth mentioning that
pursuant to Chapter 21, Section 5 of the Parental Code a
judgment or order relating to custody or right of access
may not be enforced against the wishes of a child who has
reached the age of twelve, unless it is considered
necessary for the child's own good. In practice this means
that such a judgment or order can rarely be enforced
against a child's wishes.
...
There is a strong presumption that the natural parents, or
one of them, should have custody of their children. This
is clearly indicated by the wording of Chapter 6, Section
8 of the Parental Code. This attitude is also clearly
reflected in the travaux préparatoires which emphasise the
desirability of reuniting parents and children.
The question of who should have custody of Lisa is a very
different matter from the issues that normally arise in
custody disputes between parents who have both lived
together with their child. The situation also differs from
the situation primarily envisaged by the legislator in the
provision relating to reunion between natural parents and
children. It is clear from the investigation that Lisa has
been cared for and brought up by the [foster family] ever
since her birth. Irrespective of the appropriateness of
the various decisions responsible for this state of
affairs, this fact is crucial when considering the issue of
custody of the child.
The investigation in the case, inter alia the child care
report (vårdnadsutredningen) and Lisa's own letters,
clearly indicate that moving Lisa from her foster home
would be against her wishes. The objection that Lisa may
be influenced by her foster parents in this respect cannot
in itself be considered decisive. She is old enough to form
an opinion of her own. In view of Lisa's long and close
relationship with her foster parents such influence appears
natural.
Lisa's wishes are obviously the result of her long
attachment to her foster home, with foster parents and a
foster brother, and her strong emotional ties to this home.
Her other links, such as school, her friends and the
environment as a whole, must also be taken into account.
Furthermore, it must be remembered that Lisa is in a
sensitive age. The best way of fulfilling her need of
security is to allow [the foster parents] to have a
parental role as complete as possible. Their intention is
to continue to take care of Lisa. They are suitable
guardians.
On the other hand, it must be borne in mind that [the
applicant] has made every effort to get Lisa back ever
since Lisa was taken from her or at least to get the chance
to meet her. It is no exaggeration to state that these
efforts of hers have encountered great resistance,
especially during Lisa's earliest childhood. By and large,
[the applicant] cannot be blamed for the fact that mother
and daughter have had relatively little contact with each
other. Nevertheless, the lack of a close relationship
between them is a circumstance that cannot be disregarded
when deciding the question of custody.
Having considered the evidence in the case the Court finds
that the requirements set forth in Chapter 6, Section 8 of
the Parental Code relating to transfer of the custody of
Lisa are fulfilled. [The foster parents] as specially
appointed guardians should therefore be granted custody of
Lisa.
This decision raises the issue of [the applicant's] right
to access to Lisa.
In the long term, in particular, it is important that Lisa
should have the chance to establish and maintain a good
relationship with her natural mother. When [the foster
parents] have finally been granted custody of Lisa, her
life will be more stable and secure. This is likely to
improve the prospects of a normal relationship between Lisa
and her mother. It must be assumed that the right of
access can be exercised in a regular manner without
involving any risk for Lisa.
A right of access as comprehensive as [the applicant] has
demanded is not realistic and does not seem to reflect her
real wishes.
The changes of the environment involved in the exercise of
the right of access are always, to a greater or lesser
extent, distressing to a child. Lisa's attitude to the
right of access and the fact that there is not a close
relationship between her and [the applicant] indicate that
it is not appropriate in this case to grant a right of
access to a more usual extent. The Court of Appeal finds
that the right of access ordered by the District Court is
appropriate. There are no circumstances indicating a need
for the right of access to be exercised in the presence of
a third party. The Court wishes to emphasise in this
respect that pursuant to Chapter 6, Section 15 of the
Parental Code [the foster parents] will have a direct
responsibility for ensuring that Lisa's need of meeting
[the applicant] is satisfied as far as possible.
[The applicant] has also requested that in the exercise of
her right of access [the foster parents] be obliged to
bring Lisa to the meetings, to take her home after the
visits and to defray any expenses that may be incurred.
Such a procedure would impose unreasonable obligations on
[the foster parents] and it is not clear how this would
benefit the relations between mother and child. This
request should therefore be rejected.
As regards [the applicant's] objections relating to the
European Convention on Human Rights and the judgment of the
European Court of Human Rights, it may be noted that the
judgment of the Court related to a different matter from
that at issue in this case and that the criticism expressed
applied primarily to the restrictions on the right of
access, especially in conjunction with the long-term
prohibition on removal. Furthermore, the European
Convention on Human Rights and the decisions of the
European Court of Human Rights are not directly binding on
the judicial exercise in Sweden. In this context the UN
Convention on the Rights of the Child of 20 November 1989,
to which Sweden has acceded, is worth mentioning. Article
3 of that Convention states that in all actions concerning
children the best interests of the child shall be a primary
consideration. Furthermore, in Article 12 it is stated
that in all matters affecting the child the views of the
child shall be given due weight in accordance with its age
and maturity. Like the European Convention on Human
Rights, the UN Convention on the Rights of the Child is
not, however, directly binding on the judicial exercise in
Sweden."
One of the six judges in the Court of Appeal expressed a separate
opinion and rejected totally the applicant's request for access. In
essence he found that, in view of Lisa's attitude to meetings with her
mother, it could not be considered to be in the girl's interests that
the applicant was granted a right to access which in any case could not
be enforced against Lisa's own will.
The applicant appealed against the judgment to the Supreme Court
(Högsta domstolen), which on 12 June 1991 refused leave to appeal.
The applicant also reported the handling of the case by the
Social Council of Lidingö to the Parliamentary Ombudsman
(Justitieombudsmannen). In her complaint, made on 2 August 1989, she
alleged that despite the outcome in the Eriksson judgment of 22 June
1989 of the European Court of Human Rights, the social authorities
continued to prevent her from meeting her daughter at her home.
The Parliamentary Ombudsman ordered the Social Council of Lidingö
to submit its observations on the issue. Later the applicant was
invited to comment on the Council's observations.
On 7 May 1990 the Ombudsman submitted an opinion. After having
stated that the Swedish courts and administrative authorities are not
legally bound by the judgments of the European Court of Human Rights
the Ombudsman stated inter alia the following:
(translation)
"The 1980 Act with Special Provisions on the Care of Young
Persons (lagen 1980:621 med särskilda bestämmelser om vård
av unga) prescribes that the care shall be terminated when
it is no longer needed. If there is a risk, which is not
of a minor nature, that the child's health would be
endangered if it were not allowed to remain in its foster
home, a prohibition on removal may be issued by virtue of
Section 28 of the Social Services Act (socialtjänstlagen).
The prohibition on removal is intended as a temporary
measure to prevent the parents from taking the child home
immediately and to allow some time in order to prepare for
a reunification. Even though the aim should be to have the
parents and their child reunited, it cannot be disregarded
that there are cases where a reunification within a
foreseeable time must be considered unrealistic. For
instance, this is the case when care has been provided for
a child outside its own home since a very tender age and
when it grows up and gets rooted in a foster home. If, in
such circumstances, there is no longer a need for public
care under the 1980 Act the issue whether to have the
custody transferred to the foster parents should be
addressed. Thus, the prohibition on removal must not be
used as a permanent measure in order to achieve the aim of
letting the child remain with its foster family.
In the present case the prohibition on removal has remained
in force for a long period of time. The question regarding
the authority of the Social Council to take decisions in
matters concerning access between the child and its mother
has then arisen.
As has been pointed out by the Supreme Administrative Court
and the European Court of Human Rights, there is under the
present legislation no possibility to decide on matters
concerning access between parents and children as long as
a prohibition on removal is in force. The reason why, while
a prohibition on removal is in force, the question of
access has not been regulated in the Social Services Act
appears to have been that the prohibition on removal should
be regarded as a temporary measure.
Thus, the question of how the Social Council shall act when
there is a need for regulating the right to access between
a child and its parents while a prohibition on removal is
in force is at present not regulated in law. According to
the new Act with Special Provisions on the Care of Young
Persons, which enters into force on 1 June 1990, there is
a possibility for the Social Council to issue such
restrictions on access between a child and its parents as
it deems necessary for the sake of the child in the same
way as in regard to the care under the 1980 Act
(Section 31). Such a decision of the Social Council may be
appealed to the County Administrative Court (Section 41,
Subsection 1, p. 3).
The investigation shows that the Social Council has acted
solely out of consideration for the child. In view of this
fact and in view of the lacunae in the present legislation,
which have resulted in amendments to the legislation, and
the fact that there are proceedings concerning a transfer
of custody to the child's foster parents pending at
present, I close the matter with what now has been stated."
Particulars concerning the contacts between
the applicant and Lisa
As mentioned above, the applicant invited Lisa at the beginning
of January 1990 to come and visit her over a weekend. However,
according to her foster father, Lisa had reacted strongly upon this
invitation and had refused to go. Lisa's foster mother and Lisa
decided to discuss this problem with the child psychologist who
previously had treated Lisa at the Children's and Juveniles'
Psychiatric Clinic of Halmstad. A few days later the foster parents
invited the applicant to come and visit Lisa at their home on 20
January 1990. However, no visit took place in January 1990.
The foster parents also arranged for a visit at the beginning of
February 1990 but the applicant could not come due to her son's
illness.
In February 1990 Lisa's foster father suggested that the
applicant visit Lisa on two occasions in March 1990. The applicant was
able to come once, on 10 March. On that day she visited Lisa in the
foster home a couple of hours in the afternoon. Her travel expenses
were paid by the social authorities.
On 19 May 1990 the applicant visited Lisa a couple of hours. Also
this time the social welfare authorities paid for her expenses.
In July 1990 Lisa's foster mother wrote to the applicant and
suggested that she contact the foster family for the purpose of fixing
a date for a new visit at their place. According to the Government, the
applicant preferred to wait until after the hearing of the Court of
Appeal, which was to take place in September 1990. However, the Court
decided to postpone the hearing until December 1990. The applicant and
the foster parents then decided that the applicant should visit Lisa
on 17 November 1990. The applicant suggested that she should stay over
night at the foster home or at an hotel in order to make the visit last
longer. However, the foster parents did not agree to such an
arrangement. The social authorities were prepared to pay the
applicant's travel costs but not her costs for staying at an hotel.
Shortly before the visit was about to take place the applicant informed
the foster parents that she could not come.
B. Applicable domestic law
Regarding the questions of transfer of custody, enforcement of
the right to access and transfer of a child to its custodian, certain
rules in the Parental Code (föräldrabalken) - Chapter 6, Section 8 and
Chapter 21, Sections 1, 3 and 5-7 - are applicable. These provisions,
in their relevant parts, read as follows:
(translation)
Chapter 6, Section 8
"If a child has been permanently cared for and brought up
in a private home other than its parental home and if it is
obviously in the best interest of the child that the
prevailing relationship may continue and that custody be
transferred to the person or persons who have received the
child or to one of them, the court shall appoint the said
person or persons to exercise custody of the child as
specially appointed guardians."
Chapter 21, Section 1
"Requests for enforcement of judgments or decisions by an
ordinary court (allmän domstol) concerning custody, access
or surrender of children are made to the county
administrative court. If the judgment or decision has not
come into force and permission has not especially been
given for enforcement to take place nevertheless, the
county administrative court may not take the steps
specified in Sections 2-4."
Chapter 21, Section 3
"If the county administrative court issues an enforcement
order, it may impose a conditional fine (vite) or decide
that the child be collected through the police authority.
An order of this kind, however, may only be made in the
cases and subject to the conditions specified in
subsections two and three.
In connection with a judgment or decision concerning the
custody or surrender of a child, the county administrative
court may order the child to be collected if enforcement is
otherwise impossible or if collection is necessary in order
to prevent the child from being seriously harmed.
In connection with a judgment or a decision concerning
access between the child and a parent who is not the
child's custodian, the county administrative court may
order the child to be collected if enforcement is not
otherwise possible and the child is in particularly great
need of access to the parent.
Questions concerning the imposition of conditional fines
shall be examined by the county administrative court if the
party who has requested the enforcement so demands."
Chapter 21, Section 5
"If the child has reached the age of 12, enforcement may
not take place against its will, unless the county
administrative court finds it necessary, having regard to
the best interest of the child. The same applies if the
child has not yet reached the age of 12 but is of such
maturity that its will should be respected in a similar
manner."
Chapter 21, Section 6
"If it is obvious that conditions have changed since the
ordinary court's judgment or decision was given, the county
administrative court may refuse to issue an enforcement
order if with regard to the best interest of the child it
considers that the question of changes regarding custody or
access should be re-examined. Such questions are examined
by the ordinary court on an application from a party to the
case before the county administrative court or from the
Social Welfare Committee.
The county administrative court may refuse to issue an
enforcement order also in other cases if there is a risk,
which is not insignificant, that the child's physical or
mental health is jeopardised."
Chapter 21, Section 7
"Even if no judgment or decision as described in Section 1
exists, the child's custodian may, when the child is
staying with someone else, call upon the county
administrative court to have the child transferred to him-
or herself.
The county administrative court may refuse to take the
measure requested if the best interests of the child
require that the question of custody be examined by an
ordinary court.
Sections 2 to 6 are otherwise applicable."
In the travaux préparatoires on the provision in Chapter 6,
Section 8 concerning transfer of custody to a specially appointed
guardian (Gov. Bill 1981/82: 168 p. 70) the following is stated:
(translation)
"Generally speaking, a child must have been in a foster
home for a number of years before there can be any question
of transferring custody to the foster parents under this
provision. The court must of course investigate the
child's relationship with this home and the relationship
between the child and its natural parents. If the parents
have not shown any interest in the child while it has been
in the foster home, or if contacts have been sporadic or
have been distressing for the child, transfer of custody
may be considered. However, great importance must be
attached to the child's wishes. As indicated above, it is
necessary that the child must be so strongly attached to
its new home that it regards it as its own."
During the examination in Parliament the Parliamentary Standing
Committee on Civil Law Legislation (lagutskottet) stated inter alia the
following (LU 1982/83:17 pp. 22 and 23):
(translation)
"In cases where the child has been together with the foster
parents for a long period and has become attached to them,
and where at the same time contact with its natural parents
has been sporadic or non-existent, it may be best for the
child to remain with the foster parents and for them to
take over legal custody. The Committee wishes to
emphasise, however, that this is an exceptional provision
which must therefore be applied with great caution. ...
Obviously, custody should not be transferred from a parent
who has made every effort to maintain a good relationship
with the child during its stay in the foster home. ... In
decisions on such matters great importance must also be
attached to the wishes of the child."
In the Bill to Parliament in which the Government proposed the
introduction of a new law on the care of young persons, the 1990 Act,
this special problem was mentioned. In the Bill (Gov. Bill 1989/90:
28, pp. 93 and 94) the Minister responsible for the Bill stated:
(translation)
"A fundamental principle as far as public care is concerned
is that the care shall not continue longer than necessary.
The Social Welfare Committee has a responsibility to see to
it that contacts between the parents and the child during
the period during which care is provided are such that a
reunification can take place without any harm to the child
when the prerequisites for public care are no longer at
hand.
Although efforts should be made to unite parents and
children, one cannot ignore the fact that in some cases a
reunion in the foreseeable future is not realistic. This
is the case, for example, when care is provided for a child
at an early age and it grows up in a foster home. In such
a situation the child tends to regard the foster home as
its "real" home. It becomes attached to the foster parents
and treats them as its own parents. This may even occur if
the child has had a satisfactory relationship with its
natural parents during the period in care.
...
Also in cases where the child has formed a lasting
attachment to its foster home after being in care there for
a long time the social welfare committee should, in my
view, consider transferring custody to the foster parents
more frequently than appears to have been the case
hitherto. This should be done, in particular, in those
cases where the natural parents request that the child be
returned to them after a period of many years and it is
clearly in the interest of the child that it be allowed to
remain in its foster home."
The Bill did not result in any new legislation with respect to
the question of legal custody, but when the Bill was considered by
Parliament the Parliamentary Standing Committee on Social Questions
(socialutskottet) stated (SoU 1989/90:15) that, for similar reasons as
given in the Bill, it shared the Minister's conclusion that the
possibility to have the custody of a child transferred to the foster
parents should be resorted to more frequently than is the case at
present.
COMPLAINTS
The applicant complains that the situation has not changed after
the Eriksson judgment by the European Court of Human Rights; the
violation of her rights to respect for her family life, according to
Article 8, continues.
In addition the applicant alleges new violations of Article 8 of
the Convention which relate to the fact that Lisa was not transferred
to her, that the foster parents later were appointed custodians of
Lisa, that she does not have access to her daughter and that she has
no effective remedy to secure her right to access to Lisa as the foster
parents do not allow her meeting Lisa and her requests for enforcement
were not granted by the courts. In this respect she invokes Articles
6 and 13 of the Convention. Finally, she submits that Sweden is in
violation of Article 53 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 March 1990 and registered on
11 June 1990.
On 1 October 1990 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to
submit, by 11 January 1991, written observations on the admissibility
and merits of the application.
After an extension of the time-limit the Government submitted
their observations on 30 January 1991. The applicant's observations in
reply were submitted on 15 March 1991.
Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 7 June 1991.
THE LAW
1.The applicant alleges that, although the European Court of Human
Rights has delivered a judgment in her favour, the violation of her
rights under Article 8 (Art. 8) of the Convention continues. She also
invokes Article 53 (Art. 53) of the Convention.
The Commission first recalls the Eriksson judgment of 22 June
1989 (Eur. Court HR., Series A no. 156, at para. 71), in which the
Court made the following statement concerning Article 8 (Art. 8):
"In cases like the present a mother's right to respect for
family life under Article 8 (Art. 8) includes a right to
the taking of measures with a view to her being reunited
with her child. The care order had been lifted, and there
was no doubt as to the suitability of Mrs. Eriksson to take
care of children or of the conditions in her home (...).
The Social Council's decision of 21 January 1983 (...) made
it clear that once the care order was no longer in force,
the aim was the reuniting of parent and child. Furthermore
the Supreme Administrative Court stated, in its judgment of
11 October 1984 (see paragraph 22 above) that
'[i]rrespective of the duration of the prohibition, the
[Social Council] is obliged to see to it that appropriate
measures aimed at reuniting parents and child are taken
without delay'.
However, it appears that under Swedish law Mrs. Eriksson
did not, after the lifting of the care order, have any
enforceable visiting rights while the prohibition on
removal was in force. Furthermore, and in particular on
account of the restrictions on access, she was in fact
denied the opportunity to meet with her daughter to an
extent and in circumstances likely to promote the aim of
reuniting them or even the positive development of their
relationship. In this situation she has not been able to
have the prohibiton on removal lifted. The resulting stress
on the relations between the applicants and the uncertainty
with regard to Lisa's future have already continued for
more than six years, causing great anguish to both
applicants.
The Government admitted that the system as implemented had
failed on this occasion, but argued that situations such as
the present could not be prevented whatever system would
have been applied, as all depended on the persons involved.
The Court recognises that difficulties may arise in
consequence of the termination of public care of young
children, especially where the child has been taken into
care at a very young age and has spent many years away from
his natural parents' home. However, the unsatisfactory
situation that has ensued in the present case seems to a
large extent to stem from the failure to ensure any
meaningful access between mother and daughter with a view
to reuniting them.
Having regard to the foregoing and notwithstanding Sweden's
margin of appreciation, the Court concludes that the severe
and lasting restrictions on access combined with the long
duration of the prohibition on removal are not
proportionate to the legitimate aims pursued."
The European Court of Human Rights found that Article 8 (Art. 8)
of the Convention had been violated.
The Commission also recalls the Parliamentary Ombudsman's opinion
of 7 May 1990 in which she inter alia stated:
"As has been pointed out by the Supreme Administrative
Court and the European Court of Human Rights, there is
under the present legislation no possibility to decide on
matters concerning access between parents and children as
long as a prohibition on removal is in force. The reason
why, while a prohibition on removal is in force, the
question of access has not been regulated in the Social
Services Act appears to have been that the prohibition on
removal should be regarded as a temporary measure.
Thus, the question of how the Social Council shall act when
there is a need for regulating the right to access between
a child and its parents while a prohibition on removal is
in force is at present not regulated in law. According to
the new [1990] Act with Special Provisions on the Care of
Young Persons, which enters into force on 1 June 1990,
there is a possibility for the Social Council to issue such
restrictions on access between a child and its parents as
it deems necessary for the sake of the child in the same
way as in regard to the care under the 1980 Act."
The Government admit that the same legal situation with no legal
basis for a request to obtain access which constituted one of the
elements leading to the finding by the Court of Human Rights of a
violation of Article 8 (Art. 8) in the previous Eriksson case, existed
until the above-mentioned 1990 Act entered into force. The Government
stress, however, that in the present case this only affected the
applicant until the pronunciation of the judgment of the District Court
of 2 January 1990, when custody was transferred to the foster parents.
Insofar as the applicant complains of the fact that she was not
reunited with Lisa as a consequence of the judgment of the European
Court of Human Rights, the Commission recalls that the Court gave its
judgment in this case on 22 June 1989.
The Commission notes that a decision as to where to place a child
necessarily must be based on an assessment of the situation at the time
when such a decision is to be taken.
The Commission recalls that at the time of the Court's judgment
Lisa was 11 years old and had lived with her foster parents almost all
her life. Furthermore the Commission notes that Lisa had herself
expressed the wish to stay in the foster home.
In these circumstances the Commission cannot find that the
interference with the applicant's family life was not justified within
the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
Insofar as the applicant complains that the lack of a legal basis
for the restrictions on access continued after the judgment of the
European Court of Human Rights, contrary to Article 8 (Art. 8) of the
Convention, the Commission notes that Sweden after the judgment started
a process to have this legal situation changed in order to comply with
the judgment. The legal situation was rectified as from 1 June 1990
when the 1990 Act entered into force. Furthermore, the applicant was
not affected, by the lack of a legal basis for the restrictions on
access, after the judgment of the District Court of 2 January 1990, as
custody was then transfered to the foster parents and the applicant was
granted a right of access to Lisa. Consequently, the situation found
by the European Court on 22 June 1989 to constitute breaches of the
applicant's rights under the Convention continued to exist for about
half a year after the judgment of the Court of Human Rights. In these
circumstances the Commission considers that there has not been in the
present case any new breach of the Convention in addition to those
already found by the European Court.
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 Commission is competent, however, to examine the new
complaints submitted by the applicant.
3.The applicant alleges that the fact that Lisa was not transferred
to her, that the transfer of custody of Lisa to the foster parents and
the refusal to enforce the access regulations constitute violations of
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 or morals, or for the
protection of the rights and freedoms of others."
The Government submit that it is uncertain whether there exists
a family life within the meaning of Article 8 (Art. 8), as Lisa has
lived with the foster parents for such a long period of time.
The Commission recalls that the Court of Human Rights has stated
on several occasions that the mutual enjoyment by parent and child of
each other's company constitutes a fundamental element of family life;
furthermore the natural family relationship is not terminated by reason
of the fact that the child has been taken into public care (see among
others Eur. Court H.R., Eriksson judgment of 22 June 1989, Series A
no. 156, p. 24, para. 58).
The applicant has, ever since Lisa was taken into care,
unsuccessfully struggled to have her daughter back. The measures
complained of, i.e. the transfer of the custody and the decisions not
to transfer Lisa to the applicant or to enforce her right to access,
must be considered to interfere with the applicant's right to respect
for her family life within the meaning of Article 8 para. 1
(Art. 8-1) of the Convention.
The Commission must therefore examine whether the interference
is justified under the terms of paragraph 2 of Article 8 (Art. 8-2).
For an interference to be justified, it has to be shown to be "in
accordance with the law", to have an aim or aims that is or are
legitimate under this paragraph and to be "necessary in a democratic
society" for the aforesaid aim or aims (Eur. Court H.R., Eriksson
judgment, ibid.).
On this point the Government argue that the interference must be
considered justified as being in "accordance with the law", with the
legitimate aim to protect Lisa's own interests, and "necessary in a
democratic society", mainly because of the long period she had stayed
with the foster parents and because of the child's own wish. The
Government also submit that a transfer of Lisa against her wish to the
applicant would have violated the UN Convention of the Rights of the
Child.
As regards the phrase "in accordance with the law" the Commission
recalls that for Convention purposes a "law" must be sufficiently
precise; there must be a measure of protection against arbitrary
interferences by the public authorities with inter alia the right to
respect for family life; if the law confers a discretion, its scope and
manner of exercise must be indicated with sufficient clarity to afford
such protection (Eur. Court H.R., ibid., para. 59).
The Commission is of the opinion that the relevant domestic law
in the present case, which by its very nature must be worded to cover
different situations and therefore give some measure of discretion,
together with the relevant preparatory work, is sufficiently precise
to give an acceptable protection against arbitrary interferences.
Furthermore, the Commission recalls that its power to review compliance
with domestic law is limited; it is in the first place for the national
courts to interpret and apply that law (Eur. Court H.R., ibid.,
para. 62). Nevertheless, the Commission notes that the decisions
concerning the transfer of Lisa, the transfer of custody and the
enforcement of access all had their basis in the relevant national law,
i.e. Chapters 6 and 21 of the Parental Code. The interference was thus
"in accordance with the law".
The Commission furthermore has no doubt that the relevant
decisions were taken with a view to safeguarding the interests of Lisa.
This is clearly a legitimate aim under Article 8 para. 2 (Art. 8-2)
falling under the expression "for the protection of the rights and
freedoms of others".
It remains to be examined whether the interference was "necessary
in a democratic society" in the interests of the child.
According to the established case-law the notion of necessity
implies that an 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
Convention organs' review is not limited to ascertaining whether a
respondent State has exercised its discretion reasonably, carefully and
in good faith. They cannot confine themselves to considering the
relevant decisions in isolation but must look at them in the light of
the case as a whole. They must determine whether the reasons adduced
to justify the interference at issue are "relevant and sufficient"
(Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130,
pp. 31 and 32, paras. 67 and 68).
The Commission also recalls what the Court of Human Rights stated
in its judgment in the Eriksson case: the right of a mother, who is
separated from her child, "to respect for family life under Article 8
(Art. 8) includes a right to the taking of measures with a view to her
being reunited with her child" (Eur. Court H.R., Eriksson judgment of
22 June 1989, Series A no. 156, p. 26, para. 71).
In the light of this case-law, the Commission has examined the
reasons adduced by the courts and the evidence available to them in
order to establish the necessity of the decisions in question.
As regards the refusal to transfer the child to the applicant,
the Commission recalls the grounds on which the judgment of the County
Administrative Court of 6 September 1989 - later upheld by the Court
of Appeal - was based. The Court noted that at the time of the judgment
the applicant had not seen Lisa for more than one and a half years.
Furthermore, the Court emphasised the risk that Lisa's mental health
could be jeopardised by a transfer and took Lisa's own wishes into
consideration. The main reason to refuse the transfer was, however,
that a procedure concerning the transfer of custody to the foster
parents was pending before the District Court.
The Commission finds these reasons relevant for refusing a
transfer at that time.
As regards the transfer of custody, the Commission recalls that
this question was examined by both the District Court and the Court of
Appeal. The courts considered in essence that in view of Lisa's long
attachment to her foster home, the environment related to that home
such as school, and her own wish, and having regard to her age (at the
time of the judgment by the Court of Appeal, Lisa was almost 13 years
old), it was, according to the Courts obviously in Lisa's best interest
to have custody transferred to the foster parents.
The Commission considers these reasons to be sufficient and
relevant for the transfer of custody.
As finally regards the administrative courts' refusal to enforce
access, the Commission notes that the County Administrative Court
refused to enforce the access which earlier had been ordered by the
District Court. The Administrative Court of Appeal did not change this
decision. The refusal to enforce the access was essentially based on
Lisa's own wish. In these circumstances, and taking into account the
above-mentioned margin of appreciation left to the Contracting States,
the Commission considers the refusal to enforce the access acceptable.
Although it understands that the interference as a whole has
caused considerable suffering to the persons concerned, the Commission
concludes that the measures taken could be considered as "necessary in
a democratic society".
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.
4.As regards the applicant's complaints under Articles 6 and 13
(Art. 6, 13) of the Convention that she had no effective remedy, the
Commission observes that the issues concerning the transfer of Lisa,
the transfer of custody and the enforcement of access were each
considered by courts at two levels and that finally the Supreme Court
and the Supreme Administrative Court, respectively, refused leave to
appeal.
In these circumstances, the Commission finds no indication of a
violation of Articles 6 or 13 (Art. 6, 13) of the Convention.
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.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER)(C.A. NØRGAARD)
Full & Egal Universal Law Academy