AS TO THE ADMISSIBILITY OF
Application No. 26565/95
by Maria FORSÉN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 June 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. G. JÖRUNDSSON
J.-C. SOYER
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
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 17 August 1994 by
Maria FORSÉN against Sweden and registered on 21 January 1995 under
file No. 26565/95;
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 1961, resides at
Hässelby. Before the Commission she 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.
The applicant has five children, A, born in 1979, P, born in
1984, M, born in 1989, C, born in 1991, and J, born on 1 July 1994.
Since 27 July 1994 she is married to U.F., with whom she has been
cohabiting for many years. U.F. is the father of M, C and J.
After A, in July 1993, had accused U.F. of having sexually abused
her and M, criminal proceedings were instituted against U.F. On
11 November 1993 the District Court (Tingsrätten) of Stockholm found
U.F. guilty of sexual abuse of A but not M. He was sentenced to one
and a half year's imprisonment. On appeal, the Svea Court of Appeal
(Svea hovrätt), by judgment of 11 February 1994, found U.F. guilty of
sexual abuse also in respect of M and raised the sentence to two years'
imprisonment. On 30 March 1994 the Supreme Court (Högsta domstolen)
refused leave to appeal.
On 1 September 1993, as a consequence of the accusations against
U.F., the Social District Council (Sociala distriktsnämnden;
hereinafter "the Council") No. 15 in Stockholm 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"), immediately to take A, P, M and C into
public care on a provisional basis. The decision was confirmed by the
County Administrative Court (Länsrätten) of the County of Stockholm and
the Administrative Court of Appeal (Kammarrätten) in Stockholm on 10
and 17 September 1993 respectively.
The Council, claiming that the children were insufficiently cared
for, later applied to the County Administrative Court for a care order
concerning A, P, M and C under Section 1, subsection 2 and Section 2
of the 1990 Act. These provisions state that compulsory care is to be
provided if there is a clear risk of impairment of the health and
development of a person under 18 years of age due to ill-treatment,
exploitation, lack of care or any other condition in the home and if
the necessary care cannot be provided with the consent of the young
person's custodian.
The County Administrative Court held a hearing at which the
applicant and U.F., their respective counsel, the children's counsel
and representatives of the Council were heard. The court also heard
evidence from two witnesses.
By judgment of 22 November 1993, the County Administrative Court
granted the application and ordered that the children be taken into
public care. The court found the investigation in the case to show
that A, P and M had psychological problems. It took into account that
U.F. was suspected of sexual abuse of two of the children and had
further regard to the Council's report which, inter alia, stated that
the applicant was emotionally unstable and aggressive. The court
considered that the children's health and development had already been
impaired as a result of the conditions in their home. It further noted
that the parents had not consented to the care proposed by the Council.
The applicant appealed against the care order to the
Administrative Court of Appeal in so far as it concerned P, M and C.
The appellate court held a further hearing in the case and heard the
applicant, her counsel, the children's counsel, representatives of the
Council and four new witnesses.
On 12 April 1994 the appellate court, noting that U.F. had been
convicted of sexual abuse and agreeing with the reasoning of the County
Administrative Court, rejected the appeal.
On 2 February 1995 the Supreme Administrative Court (Regerings-
rätten) refused leave to appeal.
The applicant also requested that the public care of P, M and C
be terminated. Her request was rejected by the Council on 2 June 1994
and, on appeal, by the County Administrative Court on 21 September 1994
and the Administrative Court of Appeal on 10 January 1995. Both courts
held hearings before taking their decisions. On 10 April 1996 the
Supreme Administrative Court refused leave to appeal. The public care
of A was terminated by the Council on 5 October 1995 after A had run
away from her foster parents.
On 25 July 1994 the Council decided also to take J, at the time
three weeks old, into public care on a provisional basis. The case was
then referred to the County Administrative Court, which held a hearing
on 3 August 1994. After having heard the applicant, U.F., their
respective counsel, the children's counsel, representatives of the
Council and three witnesses, the court, by decision of 5 August 1994,
confirmed the Council's decision. The applicant's appeal was rejected
by the Administrative Court of Appeal on 15 August 1994. On 31 January
1995 the Supreme Administrative Court refused leave to appeal.
On 22 August 1994 the Council applied to the County
Administrative Court for a care order concerning J under the 1990 Act.
The court held hearings on 5 and 9 September 1994 at which it heard the
same persons as at the hearing on 3 August 1994 with the exception of
the witnesses. In addition, it heard evidence from two new witnesses.
By judgment of 21 September 1994, the County Administrative Court
ordered that J be taken into public care. The court found that the
applicant's and U.F.'s care of J was deficient, that the conditions in
the home were unsatisfactory and that there was a clear risk that J's
health and development would be impaired as a result thereof. It took
into account the reasons underlying the care order concerning the
applicant's other children and further noted, inter alia, that the
applicant had refused to undergo a Council investigation into her and
J's situation which would have required the applicant and J to be
admitted to a children's home for some time. This had caused the
Council to take J into care provisionally. Moreover, the court
considered that the necessary care of J could not be provided on a
voluntary basis.
The applicant and U.F. appealed to the Administrative Court of
Appeal. The appellate court held a hearing on 13 December 1994. It
heard the applicant, U.F., their respective counsel, the children's
counsel, representatives of the Council and four witnesses, including
two of the witnesses heard by the County Administrative Court on
3 August 1994 and two new witnesses.
On 10 January 1995 the appellate court rejected the appeal. It
considered that the unsatisfactory home conditions which had led to the
taking into care of the applicant's other children still existed.
Although J had not been subjected to any form of ill-treatment by her
parents, the court found, in view of U.F.'s conviction for sexual abuse
of A and M, that J could not be guaranteed a safe environment in her
parents' home. Also the other conditions in the home jeopardised J's
health and development.
U.F. was released on probation on 25 December 1994. At the end
of 1994, A retracted her accusations against U.F. and claimed that she
and M had not been sexually abused by him. U.F. therefore petitioned
the Supreme Court for a new trial. However, on 22 December 1994 his
request was dismissed. In February 1995 U.F. made a new petition,
which is presently pending before the Supreme Court.
On 10 April 1996 the Supreme Administrative Court refused leave
to appeal against the Adminstrative Court of Appeal's judgment of
10 January 1995 to take J into care. The applicant has since requested
that the public care of P and J be terminated. The Council rejected
the request on 30 April 1996 and the case is presently pending before
the County Administrative Court.
COMPLAINTS
1. The applicant complains that the public care of J violates
Article 8 of the Convention.
2. Under Article 3 of the Convention, she further claims that her
separation from J constituted inhuman and degrading treatment, as she
was breast-feeding at the time.
3. The applicant contends that the Council first threatened to
commit her and J to an institution to carry out an investigation and
then, as a consequence of her refusal to undergo the investigation,
took J into care provisionally. She alleges that the Council used this
measure in an attempt to deprive her illegally of her liberty. In this
respect, she invokes Article 5 of the Convention.
4. She also maintains that the courts deciding in the case were not
impartial as required by Article 6 of the Convention.
5. Finally, the applicant claims that the taking into care of J
violated her and U.F.'s right to marry and found a family under Article
12 of the Convention.
THE LAW
1. The applicant complains that the public care of J violates
Article 8 (Art. 8) of the Convention, which reads as follows:
"1. Everyone has the right to respect for his
private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health and morals, or for the protection of the rights and
freedoms of others."
The applicant maintains that the taking into care of J was not
necessary. She is convinced that U.F. has been wrongfully convicted
of sexual abuse. Moreover, the applicant is an experienced mother and
is able to take good care of J.
The Commission finds that the taking into public care of J
interfered with the applicant's right to respect for her family life
as ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It must
therefore be examined whether this interference was justified under the
terms of Article 8 para. 2 (Art. 8-2). In this respect, the Commission
recalls that three conditions must be satisfied: the interference must
be "in accordance with the law", it must pursue one or more of the
legitimate aims enumerated in para. 2 and it must be "necessary in a
democratic society" for that or those aims.
As regards the first condition, the Commission finds that the
relevant decisions were in conformity with Swedish law, namely Section
1, subsection 2 and Section 2 of the 1990 Act.
The Commission further finds that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests
of the child, which in this case fall under the expressions "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others".
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the children.
According to the established case-law of the Commission and the
European Court of Human Rights, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued.
In determining whether an interference is "necessary in a democratic
society", the Commission furthermore has to take into account that a
margin of appreciation is left to the Contracting States. However, the
Commission's review is not limited to ascertaining whether the
respondent State has exercised its discretion reasonably, carefully and
in good faith. Furthermore, it cannot confine itself to considering
the relevant decisions in isolation but must look at them in the light
of the case as a whole. It must determine whether the reasons adduced
to justify the interference at issue are "relevant and sufficient"
(cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A
no. 130, pp. 31-32, paras. 67-68).
In the present case, the Commission recalls that the
Administrative Court of Appeal, in its judgment of 10 January 1995,
found that J could not be guaranteed a safe environment in her parents'
home in view of the fact that U.F., J's father, had been convicted of
sexual abuse of two of J's siblings. In this connection, the
Commission notes that U.F. was convicted by the Court of Appeal on
11 February 1994. Moreover, U.F.'s petition for a new trial was
rejected by the Supreme Court on 22 December 1994. The Commission
further recalls that, in taking J into care, the administrative courts
considered that there were other unsatisfactory conditions in J's home
which jeopardised J's health and development.
The Commission also takes into account that the County
Administrative Court and the Administrative Court of Appeal, before
giving their judgments, had held hearings at which the parents, their
counsel, the children's counsel, representatives of the Council and
several witnesses were heard. Moreover, the same courts had previously
decided on the taking into care of the applicant's other children,
during which proceedings they had also held hearings. Thus, the courts
cannot be said to have intervened without adequate knowledge of the
case.
In the light of the foregoing the Commission finds that the
taking into care of J was supported by relevant and sufficient reasons
and that, having regard to their margin of appreciation, the Swedish
authorities were reasonably entitled to think that it was necessary to
take J into care. Accordingly, the Commission concludes that the
relevant decisions can reasonably be regarded as "necessary in a
democratic society" within the meaning of Article 8 para. 2 (Art. 8-2)
of the Convention.
It follows that 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 claims that her separation from J constituted
inhuman and degrading treatment, as she was breast-feeding at the time.
She invokes Article 3 (Art. 3) of the Convention.
The Commission, however, considers that the applicant's
submissions fail to disclose any appearance of treatment attaining the
minimum level of severity required for the application of Article 3
(Art. 3).
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 contends that the Council first threatened to
commit her and J to an institution to carry out an investigation and
then, as a consequence of her refusal to undergo the investigation,
took J into care provisionally. She alleges that the Council used this
measure in an attempt to deprive her illegally of her liberty. In this
respect, she invokes Article 5 (Art. 5) of the Convention.
The Commission notes that the applicant has not been deprived of
her liberty as a result of any measures taken by the Council.
Accordingly, an examination of this complaint does not disclose any
appearance of a violation of Article 5 (Art. 5).
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.
4. The applicant maintains that the courts deciding in the case were
not impartial as required by Article 6 (Art. 6) of the Convention. She
states that the courts' reasoning reveals that J was taken into care
solely on account of U.F.'s conviction for sexual abuse. In view of
A's lack of credibility, the courts have allegedly been unreasonable
in attaching too great importance to A's accusations.
The Commission, recalling that its only task is to ensure the
observance of the obligations undertaken by the Parties to the
Convention and that, in particular, it is not competent to deal with
a complaint concerning errors of law and fact allegedly committed by
domestic courts, finds that an examination of the applicant's
submissions in respect of the present complaint fail to disclose any
lack of impartiality on the part of the courts deciding in the case in
question.
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.
5. The applicant claims that the taking into care of J violated her
and U.F.'s right to marry and found a family under Article 12 (Art. 12)
of the Convention.
The Commission, recalling its above finding under Article 8
(Art. 8) of the Convention that the decision to take J into care can
reasonably be regarded as "necessary in a democratic society", finds
that an examination of this complaint does not disclose any appearance
of a violation of Article 12 (Art. 12).
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy