AS TO THE ADMISSIBILITY OF
Application No. 12651/87
by Elisabeth and Roland GRUFMAN
against Sweden
The European Commission of Human Rights sitting in private
on 9 May 1989, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 30 December
1985 by Elisabeth and Roland GRUFMAN against Sweden and registered on
19 January 1987 under file No. 12651/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 11 September 1987 and the observations in reply
submitted by the applicants on 2 November 1987;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicants are a married couple born in 1953 and 1948
respectively. They are Swedish citizens who were formerly living in
Sweden and are now living in Norway. Mrs. Grufman receives an
early retirement pension and Mr. Grufman a disability pension. Before
the Commission they are represented by Mr. Lennart Hane, a lawyer
practising in Stockholm .
On 28 April 1981, when still in Sweden, the first applicant
gave birth to the twins Karl-Michael and Jan-Erik. On 30 October 1981
the Chairman of the Social Council of Örebro Municipality (Örebro
kommun, västra sociala distriktsnämnden) decided to take the
applicants' children into care pursuant to Sections 11, 25 (a) and 29
of the 1960 Act on Child Welfare (barnavårdslagen, "the 1960 Act").
This decision was confirmed by the Social Council at a meeting of 9
November 1981. In addition it was decided that the decision to take
the children into care should be carried out immediately, that the
children's residence was not to be divulged to the applicants for a
period of six months and that the applicants should have no right of
access to their children during that time (Section 41 of the 1960
Act). The applicants were present at the meeting and had submitted
written statements that were read out to the Council.
The Social Council's reason for the care decision was that the
children had been subject to such treatment in their home that their
physical health and their development were endangered. This was
caused by their father's unsuitability as a custodian and their
mother's inability to educate them. Preventive measures had been
taken and proved insufficient. Further preventive measures were
considered useless. It was feared that the applicants would disturb
the care of the children during the first period of care.
The Social Council based its decision on a report of
9 November 1981 prepared by the social authorities at Örebro. To the
report a medical certificate of 2 November 1981 issued by Chief Doctor
A.J-G. of the Children's Psychiatric Clinic Ringen at Örebro was
attached and also a summary of the information the Care Council
(omsorgsstyrelsen) at Örebro had collected on Mrs. Grufman during
the years she was registered with them. The summary was signed by Mr.
S.W., Head of Care. The report referred to and cited from two medical
certificates concerning Mr. Grufman, of 24 September and 8 November 1979,
issued by Deputy Chief Doctor J.W. and Chief Doctor L.O.N., respectively.
In the medical certificate issued by A.J-G. it is stated that
the applicants are not aware of the children's needs and cannot
satisfy them. They give priority to their own needs rather than to
those of the children. Their care for the children is irregular and
unvaried and they are not prepared to accept assistance with the care
of the children.
From the report it appears inter alia that the social
authorities already before the children were born had doubts as to the
applicants' ability to take proper care of them. Mr. Grufman had had
a drinking problem before he met his wife and had been convicted of
several minor offences. Mrs. Grufman had been registered with the
Care Council and in connection with the registration it was discussed
whether she was mentally retarded. Immediately after the children had
been born municipal home care aid was provided to support the
applicants and to assess their ability to care for the children.
Subsequent to a decision by the Chairman of the Social District
Council of 6 October 1981 to take the children into public care for
investigation, it was decided, at the request of the applicants, to
have the investigation carried out in their home. A social welfare
officer was placed with the applicants between 7 and 30 October 1981
to observe the way they cared for the children and the children's
development. The observations made during this period led to the
conclusion that the children's environment was unsatisfactory. The
applicants' flat was never clean. From a hygienical point of view the
children were badly cared for. The applicants neglected the advice
given by the Child Care Centre (barnavårdscentralen) and the social
authorities regarding the way to care for the children. Both parents,
but especially Mrs. Grufman, handled the children in a clumsy and
uninterested way and had insufficient physical contact with them. The
children were on several occasions left crying without getting any
attention. It had occurred that Mr. Grufman behaved in a menacing
manner when he did not have his way or when somebody had a different
opinion on how to care for the twins. It was necessary to obtain
police assistance when the children were taken into care on a
provisional basis on 31 October 1981.
The twins were placed in a foster home at Degerfors.
Since the applicants did not consent to the decision of the
Social Council the case was submitted to the County Administrative
Court (länsrätten) of the County of Örebro for examination.
The County Administrative Court held a hearing in the case
on 3 December 1981 at which the applicants were present and
represented by counsel under the Legal Aid Act (rättshjälpslagen). The
children were represented by officially appointed counsel. During
the proceedings the Chief Doctor A.J-G. was heard as an expert.
Furthermore the applicants were heard as well as four witnesses called
by them. In its judgment of 11 December 1981 the Court stated inter
alia the following:
"In accordance with the medical opinion which A.J-G.
has submitted in this case and according to her statements,
the Court finds that there are serious disturbances in the
relationship between the parents and the children and that
the parents are unable to satisfy the important needs
in order to secure to the children a satisfactory
future development. Apart from the statements made by the
witnesses in this court the examination of the case shows
reason for taking the children into care. The submissions
which suggest that there are no such reasons cannot in these
circumstances be seen to carry such a weight that they call
for another evaluation than the one the examination of the
case otherwise results in. Therefore the Court finds it
established that Karl-Michael's and Jan-Erik's development
is jeopardised because of Elisabeth and Roland Grufman's
inability to satisfy the children's need of care. Supportive
measures have been tried without success. Further supportive
measures must be considered ineffective for the time being.
Reasons for taking Karl-Michael and Jan-Erik into care are
therefore at hand."
The first applicant appealed against the judgment to the
Administrative Court of Appeal (kammarrätten) of Jönköping. In a
separate appeal the first applicant complained about the decision of
the Social Council to restrict the applicants' right of access and not
to inform them of their children's residence while in care. This
decision had been upheld by the County Administrative Court in a
judgment of 11 March 1982. On 13 April 1982 the Social Council
decided, however, after a successful meeting had been arranged between
the applicants, the children and the foster parents on 8 April 1982,
that the applicants be allowed to visit their children in the foster
home on 15 April 1982 and on 28 April 1982.
The Administrative Court of Appeal held a hearing on 31 March
1982 at which the applicants were present and the first applicant and
the children represented in the same way as in the County Administrative
Court. Chief Doctor A.J-G. was heard as an expert witness. Seven
witnesses were heard at the first applicant's request. The Court
overruled the decision to restrict access and not to inform the
applicants about the children's residence. In the judgment, which was
delivered on 15 April 1982, the Court pointed out that it was the
Social Council's duty to co-operate with the parents in order to
secure contact between the applicants and their children during the
care period.
Following the hearing the Administrative Court of Appeal
decided to obtain an opinion from the National Board of Health and
Welfare (socialstyrelsen) as to whether the observations made by the
expert witness A.J-G., during her visits to the applicants' home,
could reasonably form the basis of a definite statement that "a
considerable risk to the children's development was at hand were they
to stay with their parents". In an opinion of 10 May 1982 the Board
submitted inter alia that the measures taken by A.J-G. to obtain
information about the children's situation were sufficient to enable
her to make a statement. There was no reason to question her
conclusion that there would be a considerable risk to the development
of the children if they were to stay with their parents. The Board
supported the care decision and considered it important that the
children be placed permanently with foster parents who could function
as their psychological parents.
In a judgment of 13 July 1982 the Administrative Court of
Appeal confirmed the County Administrative Court's decision to take
the applicants' children into care, now in accordance with Section 1
second paragraph 1 of the 1980 Act with Special Provisions on the Care
of Young Persons (lagen med särskilda bestämmelser om vård av unga,
"the 1980 Act"). In its judgment the Administrative Court of Appeal
stated inter alia:
"Indeed the examination of the case does not reveal
any serious deficiencies in the practical ability of Mr. and
Mrs. Grufman to take care of their children or their ability
to benefit from help and assistance in this respect. Their
good intentions to take care of their children cannot be
questioned. There is also no reason which suggests that
(Roland) Grufman would not refrain from the abuse of alcohol
or from committing criminal acts or that he would not be
socially stable in the future. Reasons for considering him
as being unable to take proper care of the children due to
his previous abuse and criminal acts are therefore not at
hand. However, what appears to be serious and what the
witnesses obviously did not consider or regard as being of
importance are the emotional deficiencies in the personality
of both spouses which Chief Doctor A.J-G. noticed and
which, according to her, means that they lack the ability to
satisfy important and primary needs of the children. The
circumstances pointed out by A.J-G. involve such a danger for
the health and development of the children if they remain in
their home as is mentioned in Section 1 of the 1980 Act
with Special Provisions on the Care of Young Persons. The
conditions for taking the children into care in accordance
with the above provision are therefore fulfilled."
As to the witnesses heard at the first applicant's request the
Court stated that they were friends and acquaintances of the
applicants, who had visited the spouses when the children were at
home. The children had been well cared for, Mr. Grufman had not
abused alcohol or otherwise misbehaved. He participated in the care of
the children. The spouses were happy about the children, but might
have needed help with the cleaning. A few witnesses stated that they
could not understand why the children had been taken into care.
The first applicant appealed to the Supreme Administrative
Court (regeringsrätten) which, on 16 September 1982, refused to grant
leave to appeal.
Following requests made by the applicants that the care of the
twins be terminated the Social Council on 14 December 1982,
14 December 1983 and 28 October 1987 decided that the care should
continue.
In 1984 the applicants moved to Hede in the Municipality of
Härjedalen.
On 2 January 1985 the first applicant gave birth to her third
son, Fredrik. Immediately after the birth of Fredrik the social
authorities commenced an evaluation and examination of the applicants'
ability to take proper care of him. The applicants received
assistance from a municipal home care aid.
The social authorities' investigation resulted in a report of
29 March 1985. Two medical certificates requested by the social
authorities were attached to the report. The certificates were issued
on 20 and 22 March 1985 by Chief Doctor T.Å. and the psychologist A.N.
at the Children's and Juveniles' Psychiatric Clinic at Östersund, and
Dr. A.H. of the Hede District, respectively.
From the first certificate it appears that it had been issued
after T.Å. and A.N. had met the applicants and Fredrik on two
occasions, once for 15 minutes and once for 3,5 hours, and after they
had read the reports made concerning the taking into care of the
twins. In the certificate it was stated that the applicants have
serious difficulties in solving conflicts and that Mr. Grufman creates
conflicts in situations where there are simple solutions. He easily
gets aggressive in these situations. Mrs. Grufman is dominated by
him. It was furthermore stated that the Grufmans show no ability to
imagine the emotional needs of the child and that it cannot be
expected that their capacity as parents will improve with supportive
measures or psycho-therapy. It was concluded that the Grufmans, who
did not express any wish for a change or for help, could not provide
Fredrik with good emotional surroundings to grow up in. T.Å. and A.N.
suggested that, if their opinion concurred with that of other persons
who had been in close contact with the applicants, Fredrik should be
taken into care on a permanent basis.
Dr. A.H. concluded:
"As concerns the question of taking the applicants' child
into care I have only seen the child once and I have never
visited the applicants in their home. No physical
maltreatment seems to have occurred but the spouses have
until now received substantial assistance from a municipal
home care aid. Considering their apparent social immaturity
and as they seem to satisfy their own immediate needs before
the child's basic needs my conclusive assessment is that the
spouses unfortunately lack the qualities and the capacity
required in order not to make their child suffer in his home
environment."
The social authorities made the following assessment in their
report:
"Statements have been requested from several persons in
order to obtain information about the impressions of others
who have been in contact with the family, especially from
those who met the family after Fredrik's birth. I have found
that the family seldom follows the advice they get as to the
care of the child. However, the most considerable
insufficiency seems to be the emotional contact with the
child. The preventive measures taken have proved to be of
no value as advice from people who are not members of the
family mostly is met with aggression. Further measures for
the family, with Fredrik at home, must be considered as
unsuitable for his future development. The major
deficiencies in the parents' ability to meet the child's
needs, appear to be their inability to give priority to the
child's needs and not their own, and their inability to feel
related to the child."
In an opinion of 21 March 1985 given by the social worker
B.O., on the first applicant's request for full disability
pension, it was concluded that the spouses Grufman suffered from a
considerable social handicap in addition to their lack of intellectual
resources.
On the basis of these documents the Social Council of the
Härjedalen Municipality on 15 April 1985 decided to take Fredrik into
care on a provisional basis under Section 6 of the 1980 Act. This
decision was upheld by the County Administrative Court of Jämtland on
22 April 1985.
On 10 May 1985, the Social Council, revoking the decision on
immediate care, decided that the applicants should be provided with a
municipal home care aid. However, on 13 May 1985 the Social Council filed
a request with the County Administrative Court that Fredrik be taken
into care pursuant to Section 1 second paragraph 1 of the 1980 Act.
The reasons for the decisions of 15 April and 10 May 1985
appear from a supplement to the report of 29 March 1985 dated
28 May 1985. The applicants, having left Hede for a visit to
Stockholm on 20 March 1985, did not return to Hede on 25 March as
planned. They had gone to Eskilstuna where they tried to find
a flat. They did not succeed and therefore went to see the second
applicant's brother in Sandviken. The brother and his wife phoned the
social authorities at Sveg and expressed their concern for Fredrik.
It was then decided to take Fredrik into care on a provisional basis
and the applicants were reported as wanted by the police. They were
not found by the police, but through their legal counsel they informed
the social authorities that they would return to Hede if the
provisional care decision was revoked. The decision was revoked and
the applicants returned.
The County Administrative Court held a hearing in the case on
31 May 1985 at which the second applicant was present and the
applicants were represented by counsel under the Legal Aid Act.
Fredrik was represented by officially appointed counsel. Chief
Doctor T.Å. was heard as an expert witness and the municipal home care
aid L.P. as a witness at the request of the applicants. The second
applicant was also heard. L.P. considered that the applicants'
relation to their child was normal and that the applicants should be
allowed to take care of themselves to a greater extent. In a judgment
of 5 June 1985, which was ordered to be immediately enforceable, the
Court stated inter alia the following:
"From the examination carried out by the Social
Council and which constitutes the basis for the request
for care, it is clear that the spouses Grufman have received
continuing economic assistance from the Council since they
moved to Hede. After Fredrik's birth the family has
furthermore received certain assistance with various work in
the home and concerning the care of Fredrik.
Certain persons who have been in contact with the
family have expressed fears as to Fredrik's health and
development. Nothing in this case shows that Fredrik has
not developed physically in a rather satisfactory manner
with the help which has been given so far. It can, however,
be questioned whether the parents would have had the
possibility to provide for Fredrik's basic needs of physical
care without the assistance they have received.
Furthermore, the present facts suggest that the home
environment has such deficiencies that Fredrik's need of
stimulation cannot be satisfied in such a manner as must
be considered to be of basic importance for his continuing
mental development. Fears thus exist that Fredrik in his
present surroundings will not get the necessary intellectual
and emotional stimulation from his parents. Furthermore,
certain circumstances have appeared which show that Roland
Grufman has a deficient ability to solve occurring conflicts
and that he easily becomes aggressive. This together with
his bad self-discipline can be seen as a certain risk for
Fredrik's physical health. Furthermore, Roland Grufman's
attitude towards the persons who have been in contact with the
family in various ways in order to help or assist them has
been such that the family risks social isolation.
Even if the witness L.P. has expressed another view,
this view relates to a relatively short period of time, for
which reason her statement must be evaluated with caution.
Against this background, and having regard to the
fact that Elisabeth Grufman's mental handicap is of such a
character that the parents themselves must be considered to
be in need of help and assistance in their own daily
situation, Fredrik's health and development must be
considered to be in danger in his present environment.
_ _ _
Having regard to what has been submitted in this
case, and in particular to everything Chief Doctor T.Å. has
stated concerning the parents' deficient ability to fulfil
their role as parents despite the necessary assistance, the
family's own suggestion concerning assistance in their home
and a contact foster family seems to be unrealistic. Having
regard to this and to the fact that the law is aimed at
protecting children, who risk receiving bad treatment, the
Court considers that the care which the Social Council
intends to arrange in this case is necessary.
In these circumstances the Social Council's request
to take Fredrik Grufman into care in accordance with the
1980 Act with Special Provisions on the Care of Young
Persons shall be accepted."
On 7 June 1985 Fredrik was placed in the same foster home at
Degerfors as his brothers.
The applicants appealed against the judgment of the County
Administrative Court to the Administrative Court of Appeal of
Sundsvall. The Court held a hearing in the case on 24 June 1985 at
which the applicants and Fredrik were represented in the same way as
in the County Administrative Court. The applicants were present at
the hearing. The Court heard a witness, the nurse U.J., active in a
religious community in Stockholm, which runs the hotel in which the
applicants were then staying. The applicants were also heard.
In a judgment of 28 June 1985 the Administrative Court of
Appeal confirmed the judgment of the County Administrative Court. It
stated inter alia:
"It is clear from the examination that Fredrik,
during the time he spent with his parents, was healthy and
developed normally. Having regard to the fact that during
that period of time the parents did not in any particular
way take care of their son alone, no conclusions can be
drawn from this regarding their ability to take care of
their child. However, from what has been submitted in this
case concerning the spouses Grufman's mental situation it must
be considered to be established that they cannot in the
future secure to Fredrik the necessary care and education
even if assistance is available. The Court therefore finds
that a danger to Fredrik's health and development exists if
he is not taken into care."
The applicants appealed to the Supreme Administrative Court,
which on 8 October 1985 refused to grant leave to appeal.
The applicants have made a request that the care of Fredrik be
terminated.
The first applicant gave birth to a fourth son Daniel on
11 June 1986. The applicants are now living in the municipality of Ås
in Norway with Daniel.
The applicants have submitted a number of certificates from
friends and neighbours in Norway issued in October 1987. From these
documents it appears that the applicants have a good relation to
Daniel, who is a healthy child. The applicants have also submitted
certificates of similar contents of 29 October 1987 issued by the
kindergarten Daniel attends and by a doctor.
From an opinion of 20 February 1987 given by a social welfare
officer of the municipality of Ås to the Swedish social
authorities, and submitted by the respondent Government, it appears
that she found that the applicants have the will to take care of
Daniel, but that their capacity to do so can be questioned in view of
their level of maturity. She did not find it necessary, for the time
being, to take the child into care, but considered that the applicants
could only manage to take care of the child in the long run if they
got support from the authorities.
COMPLAINTS
The applicants invoke Articles 6 and 8 of the Convention.
Under Article 6 they maintain that the tribunals deciding in
their cases were not impartial. The social authorities and the
experts who expressed views as to their capacity as guardians did so
on the basis not of scientific methods but of a bureaucratic pattern
without any objective analysis of the facts. The courts have long
been subjected to this pattern and cannot therefore be impartial.
Under Article 8 the applicants maintain that their right to
respect for their private and family life has been interfered with in
a manner not justifiable under Article 8 para. 2 of the Convention.
The facts of the case show that they are indeed in a position to take
proper care of their children and the courts have failed in their duty
to establish in a proper way that there was a necessity to take their
children into care. The applicants' access to the children has been
arranged in such a way as to interfere with their rights under
Article 8.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 December 1985 and
registered on 19 January 1987.
On 8 May 1987 the Commission decided to invite the respondent
Government to submit written observations on the admissibility and
merits of the application as regards the taking into care of the
applicants' children (Article 8 of the Convention).
The Government's observations were dated 11 September 1987 and
the applicants' observations in reply were dated 2 November 1987.
On 18 December 1987 the Commission granted legal aid to the
applicants.
THE LAW
1. The applicants complain of a violation of Article 6 (Art. 6-1) of the
Convention, which states in para. 1, first sentence:
"In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law..."
The applicants maintain that the tribunals deciding in their
cases were not impartial. The social authorities and the experts who
expressed views as to their capacity as guardians did so on the basis
of a bureaucratic pattern which is not founded on any objective
analysis of the facts. The courts have long been subjected to this
pattern and cannot therefore offer the parties an impartial procedure.
As regards the proceedings concerning the taking into care of
the twins Karl-Michael and Jan-Erik the Commission , however, is not
required to decide whether or not the facts alleged by the applicants disclose
any appearance of a violation of Article 6 (Art. 6) as Article 26 (Art. 26) of
the Convention provides that the Commission "may only deal with the matter ...
within a period of six months from the date on which the final decision was
taken".
The final decision in these proceedings was the decision of
the Supreme Administrative Court of 16 September 1982 not to grant
leave to appeal, whereas the application was submitted to the
Commission on 30 December 1985, that is more than six months after
the date of that decision. Furthermore, an examination of the case
does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
The applicants' complaints, as far as they relate to the
proceedings concerning the taking into care of their third son
Fredrik, have been introduced within the stipulated six months period.
However, with regard to these proceedings and the judicial decisions
of which the applicants complain the Commission recalls that, in
accordance with Article 19 (Art. 19) of the Convention, its only task is to
ensure the observance of the obligations undertaken by the parties in
the Convention. It is not competent to deal with an application
alleging that errors of law or fact have been committed by domestic
courts, except where it considers that such errors might have involved
a possible violation of any of the rights or freedoms set out in the
Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,
236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).
In this respect the Commission first notes that the
applicants' case was examined in substance by the County
Administrative Court and the Administrative Court of Appeal, the
Supreme Administrative Court refusing leave to appeal. The applicants
have in no way substantiated their allegation that these courts were
partial.
As regards the procedure, the Commission notes that hearings
were held before the County Administrative Court and the
Administrative Court of Appeal. At the hearing before the County
Administrative Court the second applicant was present and at the
hearing before the Administrative Court of Appeal both applicants were
present. They were assisted by counsel and witnesses were heard,
including an expert who had issued a medical certificate. There is no
indication that the applicants were prevented from presenting
arguments and views or that the procedure was in any other respect
unfair.
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 applicants have furthermore complained that their right to
respect for their private and family life has been interfered with in
a manner not justifiable under Article 8 para. 2 (Art. 8-2) of the Convention.
They maintain that they were indeed in a position to take proper care
of their children and that the courts have in no way established that
there was a necessity to take the children into care. The applicants
further maintain that Swedish law does not satisfy the substantial
requirements as to the quality of the law since it is too vague and
without any indication as to the scope of the discretion conferred
upon the authorities. They allege that their access to the children
has been arranged in such a way as to interfere with their rights
under Article 8 (Art. 8).
Article 8 (Art. 8) of the Convention 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, as regards the complaint relating
to the taking into care of the twins, the applicants have not lodged
their application with the Commission within six months as required by Article
26 (Art. 26) of the Convention. They furthermore submit that, insofar as the
complaints cover also the proceedings concerning the termination of the care of
the twins, the applicants have not exhausted domestic remedies. Alternatively,
the Government maintain that the complaint concerning the twins is manifestly
ill-founded.
In respect of the taking into care of Fredrik the Government
contend that the applicants' complaint is manifestly ill-founded. The
decision to take Fredrik into care and place him in a foster home,
while constituting an interference with the applicants' right to
respect for their private and family life, is justified under the terms of
Article 8 para. 2 (Art. 8-2). The measures taken were in accordance with the
law and their aim was "the protection of health and morals" and of "the rights
and freedoms of others". As to the question whether the interference was
necessary within the meaning of the Convention the Government submit that an
area must be provided in a case like the present within which no violation can
be considered to have occurred, although the national courts' decisions may be
questioned, provided that there are fair reasons for the conclusion at which
they arrived. The Commission's examination should be limited to establishing
that the decisions taken by the domestic courts have not been based on
irrelevant circumstances, unacceptable criteria or standards or other reasons
which cannot be considered to be fair.
The Government further state that the decisions and judgments
concerning Fredrik could have been more detailed in analysing the evidence,
certificates and memoranda submitted by the parties, but that a closer
examination of the case clearly explains the stand the courts have taken when
applying the law and that those circumstances are relevant as a base for
examining whether the standards according to which the case has been examined
are acceptable and whether the examination as a whole can be considered fair.
The courts have examined the case and found it necessary to take Fredrik into
care. This interference with the applicants' private and family life was
necessary also within the meaning of the Convention.
The applicants submit that although they formally may request that the
care of their children be terminated and the children be returned to them, it
is not possible for the courts to examine the substance of their request
against the prevailing abstractions binding the courts. The applicants will not
have their children returned to them unless substantial changes are made of
Swedish law. As the law is now construed it leaves too wide an area to the
authorities' discretion and the authorities have no guidance in the use of this
discretion. It was not necessary within the meaning of Article 8 para. 2 (Art.
8-2) to take the applicants' children into care. The applicants have been
given no possibility to prove their abilities as parents and to refute the
abstract accusations they have been subjected to. The courts are in the hands
of the experts. Psychological observations were made of the applicants' three
children before they were six months old. The home care aid L.P., who was
heard in the proceedings concerning the taking into care of Fredrik, stated
that there was a good relation between the boy and his parents and that she
considered that the applicants should be given the opportunity to "take care of
themselves a bit more". The applicants maintain that, by proving their
capability of taking proper care of their fourth son Daniel, they have also
proved that the accusations against them were unsubstantiated. As
concerns their right of access to their children the applicants submit that,
although they have never actually been barred from seeing the children there
are financial obstacles preventing them from doing so. Their requests that the
children be allowed to stay overnight with them or travel with them have always
been rejected. This has prevented the applicants from having normal contact
with their children.
The Commission finds that insofar as the applicants complain of the
taking into care of the twins, Karl-Michael and Jan-Erik, it is not required to
decide whether or not the facts alleged by them in support of this part of
their application disclose any appearance of a violation of Article 8 (Art. 8)
of the Convention as the applicants have again failed to comply with the six
months rule. The final decision regarding the applicants' complaint relating
to the taking into care of Karl-Michael and Jan-Erik is the decision of the
Supreme Administrative Court of 16 September 1982 whereby leave to appeal was
refused. The present application was submitted to the Commission on 30
December 1985, that is more than six months after the date of this decision.
Furthermore, an examination of the case does not disclose the existence of any
special circumstances which might have interrupted or suspended the running of
that period.
It follows that this part of the application has been introduced out of
time and must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
Furthermore, insofar as the applicants complain of the refusal of the
Social Council to terminate the care of Karl-Michael and Jan-Erik and of the
arrangements made with regard to their right of access to all of their children
in care, the Commission is again not required to decide whether or not the
facts alleged by the applicants disclose any appearance of a violation of
Article 8 (Art. 8) of the Convention 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 applicants have not appealed against the
decisions of the Social Council of 14 December 1982, 14 December 1983 and 28
October 1987 not to terminate the care of the twins. Furthermore, it does not
appear that the applicants have taken any steps to have their access to the
children arranged according to their wishes or appealed against any decisions
as regards access, with the exception of the Social Council's decision of 9
November 1981 which, however, was overruled in their favour by the
Administrative Court of Appeal on 15 April 1982. Accordingly the applicants
have failed to show that they have exhausted the remedies available to them
under Swedish law.
Moreover, an examination of the case, as it has been submitted, does
not disclose the existence of any special circumstances which might have
absolved the applicants, according to the generally recognised rules of
international law, from exhausting the domestic remedies at their disposal.
It follows that the applicants have not complied with the condition as
to the exhaustion of domestic remedies and that this part of the application
must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
The Commission finds, however, that the applicants have complied with Article
26 (Art. 26) insofar as they complain of the decision to take their third son
Fredrik into care. The decision interfered with their right to respect for
their family life as secured 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 Article 8 para. 2 (Art. 8-2) and it must be "necessary in a
democratic society" for that or those legitimate aims.
As regards the first condition, the Commission recalls its opinion in
the case (Olsson v. Sweden, Comm. Rep. 2.12.86, para. 139) where it found
that the text of the relevant provisions in the Swedish acts, although vague,
could not be considered as not satisfying the requirements as to the quality of
the law. This view was confirmed by the European Court of Human Rights (Eur.
Court H.R., Olsson judgment of 24 March 1988, Series A No. 130, paras. 60-63).
Furthermore the Commission finds no indication that the decisions taken by the
courts in the present case were contrary to Swedish law. The issue of taking
Fredrik into care was examined by the competent administrative courts up to the
Supreme Administrative Court.
The Commission also 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 expression "for the protection of health or morals"
and "for the protection of the rights and freedoms of others".
The Commission concludes that the decision to take Fredrik
into care was taken "in accordance with the law" within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention and that it had a legitimate aim
(cf. also above-mentioned Olsson judgment, paras. 64-65).
It remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the established case-law of 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 (cf. above-mentioned Olsson judgment,
para. 67).
However, the Convention organs' review is not limited to
ascertaining whether a respondent State has exercised its discretion
reasonably, carefully and in good faith, and 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" (cf. Olsson judgment, para. 68).
In the present case, the applicants allege that they were in a
position to take proper care of Fredrik and that the courts have not
established that there was a necessity to take him into care.
The Commission here recalls that both the County
Administrative Court and the Administrative Court of Appeal held oral
hearings. The second applicant was present at both hearings and the
first applicant at the hearing before the Administrative Court of
Appeal. The applicants were assisted by a lawyer on both occasions
and Fredrik was represented by officially appointed counsel. The
County Administrative Court heard an expert witness, Dr. T.Å., and the
municipal home care aid L.P. The Court also heard the second
applicant. Before the Administrative Court of Appeal both applicants
were heard as well as a witness, the nurse U.J.. Having regard to
these facts as well as to the reasons stated above in relation to
Article 6 (Art. 6) of the Convention, the Commission finds that, insofar as
certain procedural requirements are implicit in Article 8 (Art. 8), these
requirements were satisfied, since the applicants were involved in the
decision-making process to a degree sufficient to provide them with
the requisite protection of their interests.
As regards the taking into care the Commission recalls the
judgment of the County Administrative Court of 5 June 1985. The Court
considered it likely that Fredrik could not get his need of
stimulation satisfied in his home environment in a manner considered
to be of basic importance for his continuing mental development. The
Court furthermore considered that there might be a risk to Fredrik's
physical health due to the fact that his father easily becomes
aggressive. Taking his mother's mental handicap into account, the
Court found that the applicants themselves need help in their daily
situation and that there was a danger to Fredrik's health and
development in his home environment.
These reasons are "relevant" to a decision to take the child
into care, and in its judgment of 28 June 1985 the Administrative
Court of Appeal upheld the evaluation of the County Administrative
Court, referring, inter alia, to the applicants' mental state which
would make it impossible for them, in a long term perspective, to give
Fredrik adequate care.
However, a decision to take a child into care must be
supported by sufficiently sound and weighty considerations since such
a decision is in any case a serious interference with the right
protected under Article 8 para. 1 (Art. 8-1). In order to determine whether in
the present case the reasons can be considered "sufficient" for the
purposes of Article 8 (Art. 8), the Commission must further examine the
evidence that was available to the courts.
In this respect the Commission recalls that a large number of
reports and certificates, issued inter alia by the social authorities,
by doctors and psychologists, were available to the courts when they
considered the care issue, including to some extent the documents
concerning the taking into care of Fredrik's twin brothers.
The conclusion of those reports and certificates is that the
applicants' capacity as parents was such that they could not satisfy
their child's basic needs. The expert witness heard by the County
Administrative Court supported the findings of the written opinions
submitted. The Commission notes that the Courts' judgments were not
founded only on the above documentation but that the judges, on the
basis of the hearings held before them, had the benefit of their own
impressions of the persons involved.
The Commission notes that a more favourable view on the
applicants' capability to take care of a child appears from the
certificates concerning the applicants' relation to their son Daniel,
who is living with them in Norway. These are documents, however,
which could not be considered by the Swedish courts in the proceedings
concerning the taking into care of Fredrik as they refer to the
situation after those proceedings had been terminated. Nor can they
be taken into account in the Commission's examination as to whether
the courts, by their judgments, interfered with the applicants' right
to respect for their family life in an unjustifiable manner.
Although the opinions of experts and witnesses varied to some
extent, especially as concerns the applicants' practical ability to
take care of Fredrik, the Commission finds that the decision to take
him into care was supported by "sufficient" reasons and that, having
regard to their margin of appreciation, the Swedish authorities were
entitled to think that it was necessary to take him into care.
Accordingly the Commission concludes that this decision can be
regarded as "necessary in a democratic society" within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention in the interests of the child.
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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)