Application No. 12056/86
by Elisabeth and Tony HANSEN
against Sweden
The European Commission of Human Rights sitting in private
on 4 July 1988, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 February 1986
by Elisabeth and Tony Hansen against Sweden and registered on
24 March 1986 under file No. 12056/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant is a Swedish citizen, born in 1954. The
second applicant is a Danish citizen, born in 1936. They are married
and reside at Hisingsbacka, Sweden. Before the Commission they are
represented by Mr. Göran Bergendahl, a lawyer practising in
Gothenburg.
The application concerns the taking into care of the
applicants' daughter, born in 1979.
The applicants became involved with the social authorities of
Gothenburg (Göteborgs socialförvaltning) in 1978 owing to their need
for financial assistance. They have since then been in continuous need
of social assistance. The social authorities discovered a drinking
problem in the family which, however, denied any such thing and the
further development of the relationship between the applicants and the
social authorities became more and more strained.
The applicants' daughter attended a day nursery on a part-time
basis and the rest of the time she was looked after exclusively by her
parents. The essentials of the case for the Social District Council's
(sociala distriktsnämnden) application for custody, as set out below,
may be summarised as follows.
In March 1982, the staff from the day nursery where the
applicants' daughter was placed contacted the social authorities
reporting that the applicants, and in particular the first applicant,
had on several occasions smelled of alcohol on coming to fetch their
daughter. In December 1982 the nursery staff voiced serious concern
at the applicants' daughter's behaviour. Renewed contact with the
family brought on a denial that there was any problem and the child
then failed to attend the day nursery for several months.
Subsequently the staff of the nursery contacted the social
authorities repeatedly, reporting that the child showed signs of
abnormal behaviour, that the first applicant often appeared to have
been drinking and some times bore signs of physical abuse when she
collected her daughter in the afternoons. Over the past three years,
the social authorities received repeated telephone calls from persons
wishing to remain anonymous, concerning perpetual drinking parties in
the applicants' apartment and stating that the child was being
maltreated at home. For a number of years the first applicant engaged
in prostitution and there was strong suspicion that this also occurred
in the home. Representatives of the landlords reported that the
applicants often had rowdy parties and that they behaved in a drunken
disorderly fashion. The applicants had been without work for a long
period of time and lived completely on social assistance.
On the basis of this information, it was considered that the
applicants' child did not receive the special care it needed and
the matter was reported to the Chairman of the Social District Council
No. 4 of Gothenburg. Pursuant to Section 6 of the 1980 Act with
Special Provisions on the Care of Young Persons (lagen med särskilda
bestämmelser om vård av unga), the Chairman decided, on 18 January
1985, to take the applicants' daughter into care on a provisional
basis.
This provisional decision was subsequently brought before the
Regional Administrative Court (länsrätten) which upheld the decision
on 30 January 1985.
On 12 February 1985 a meeting was held in the Social District
Council in order to determine whether an application should be lodged
with the Regional Administrative Court for the taking into care of the
applicants' daughter on a non-provisional basis. The applicants were
present at this meeting and they were assisted by counsel. They
maintained that it was not necessary to take their daughter into
care and agreed to accept assistance from the social authorities.
Nevertheless the Social District Council decided on the same day to
apply to the Regional Administrative Court for the taking into care of
the applicants' daughter. The Court held a hearing in the case on
1 March 1985 during which the Social District Council maintained the
necessity to take the applicants' daughter into care. This view was
supported by the appointed counsel for the child, whereas the
applicants, who were present at the hearing and assisted by counsel,
maintained that no facts, conflicts or problems were at hand, which
could substantiate the Social District Council's allegations.
In the case a report was submitted by the deputy chief surgeon
at the Gothenburg child and youth psychiatric department (barn- och
ungdomspsykiatriska mottagningen i Göteborg). According to the
report, the applicants' daughter was markedly tense and had "ticks"
(involuntary twitching) taking the form of twitchings of the head,
snorting and sighing. The report furthermore mentioned that it was
likely that the symptoms of disorder manifested by the applicants'
daughter were connected with her home situation. The parents, who
wanted to take proper care of their child, failed to do so because of
problems regarding their ability to give the child the security and
care she needed.
The Regional Administrative Court also had at its disposal a
written statement from the psychologists K.N. and E.P.-F. The former
was moreover heard as an expert witness in the oral proceedings before
the Court. She concluded that the child's situation seemed to have
deteriorated over the years. Both her emotional and intellectual
development were clearly affected and if the child's further
development was not to be jeopardised there should be a change in her
overall life situation.
Following the hearing, the Regional Administrative Court
decided in favour of the Social District Council's application. In
its judgment the Court stated the following:
"The enquiry reveals that (the applicants' daughter) had shown
signs of psychic disorder for a long time and that these
disorders had worsened as the years went by. The situation is
now that (the child) needs expert care aimed at correcting the
disorders so that her future health and development will not be
jeopardised.
All the allegations concerning (the applicants') situation as
regards their drinking habits, physical abuse, prostitution,
aversion to work and lifestyle are perhaps not properly supported
by evidence. Nor has it been shown that any of the stated
circumstances alone should be of decisive significance as regards
their ability to take care of (their daughter). However, taken
together, all these circumstances paint a picture of their overall
life situation, which shows that the home is not a good setting
for (their daughter) to grow up in. It should be clearly
understood that there is a connection between (the child's)
psychic disorders and her home conditions.
(The applicants) give the clear impression that they lack proper
insight into (their daughter's) state of health. It cannot be
anticipated for the moment that they will be able to see beyond
their own problems and change their way of life, so that (their
daughter's) special need for care can be dealt with. If she
was now to be looked after at home, her health and development
would be put at risk. The requisite conditions exist for taking
(the child) into care in accordance with the Act with Special
Provisions on the Care of Young Persons."
The applicants appealed against this judgment to the
Administrative Court of Appeal (kammarrätten) of Gothenburg. The
Court held a hearing in the case where the applicants were present and
assisted by counsel. As in the lower court, their daughter was
also represented by counsel before the Administrative Court of Appeal.
The Administrative Court of Appeal gave judgment in the case on
20 June 1985. The judgment reads as follows:
"In the appeal to the Court of Appeal the applicants have claimed
that their daughter should not have been taken into custody under
the Act with Special Provisions on the Care of Young Persons.
Among the statements made by the applicants are the following:
In its ruling the Regional Administrative Court misjudged the
situation by considering that the overall picture of their
lifestyle shows that their home is not a good setting for their
daughter to grow up in. Further, it is untrue that they are not
able to see beyond their own problems and change their way of
life to take account of their daughter's needs or that they have
no clear idea of her state of health. The couple deny that they
are excessive drinkers, that there is physical abuse in the home
and that they both allegedly suffer from an aversion to work. On
some ten occasions, (the first applicant) has engaged in
prostitution, but she has now abandonded this once and for all.
She has also been in contact with the Prostitution Group. They
were previously quite heavy drinkers. They are now prepared and
willing to change that. The allegation that they are averse to
work is inaccurate. They have constantly attempted to get a
job. This has proved difficult among other reasons because of
the long period they have been unemployed. However, the
situation has now apparently improved further. The first
applicant has had short-term temporary jobs at a day nursery.
Now, that is since 2 April this year, she has a steady job. The
second applicant has also looked for work. With various help and
assistance from the social authorities, they can now cope with
their problems and also manage to have their daughter at home.
In the light of this, living at home would appear to present
no danger to their daughter's health and development.
The Social District Council has contested the appeal. Among the
points put forward in defence of this view were the following:
The most serious problem in (the applicants') home is their
drinking. (The applicants) are dependent on alcohol. They have
been drunk on various occasions when in charge of their daughter.
The employment situation is certainly difficult. However, (the
second applicant) has not worked for eight years.
The Administrative Court of Appeal has conducted an oral hearing
in the case. During the oral hearing, evidence has been obtained
from District Supervisers G.B. and B.S. and the principal of the
day nursery, K.S. ... In addition (K.S.) made the following
comments:
Since she was taken into care under the Act with Special Provisions
on the Care of Young Persons (the applicants' daughter) has calmed
down. Her 'ticks' have decreased. She is happy at the day nursery
and at the Kyrkbyn Children's Home. On two occasions when the
parents called to see her after she had been taken into care, they
smelled of alcohol. After their visit, (the child) became agitated
and had more 'ticks'. However, (the first applicant) and her
daughter get on well.
Expert evidence has also been heard from psychologists K.N. and
E.P.-F. and Deputy Chief Physician B.L. K.N. and E.P.-F. have
upheld the views and the expert opinions regarding (the child's)
situation which they stated in the Regional Administrative Court.
E.P.-F. also added the following comments:
She has met (the child) twice since she was taken into care. The
first occasion was at the beginning of February this year. (The
child) was then tense and nervous and had 'ticks'. The second
occasion was 15 May this year. (The child) had appeared freer
and seemed well. 'Ticks' occurred only for a short time.
Among the comments made by B.L. are the following:
(The child) is less tense now. The 'ticks' sometimes disappear,
although they vary. (The child) is now more natural than she was
before. It is unusual for 'ticks' to occur at such a young age.
The parental home must provide basic security. (The child) shows
signs of disorder and has symptoms which are connected with the home
environment. The home environment must be changed. It is important
to bear in mind the fact that the parents continued to drink when
(the child) was in the children's home. The parents must show that
there have been changes in the home environment. The positive point
is (the child's) good contact with her parents. There are no
somatic causes for the 'ticks'. A doctor at Kyrkbyn Day Nursery,
H.E., has stated that there is no reason to suspect any organic
causes. The home is the environment which affects the 'ticks'.
The child's legal aid solicitor and the social welfare consultant
in the County Council Social Welfare Department (länsstyrelsens
sociala funktion) have advised against the appeal.
The Administrative Court of Appeal's enquiry has confirmed the
fact that (the child) displayed signs of psychic disorder.
The disorder must be presumed to stem from her home
conditions. The facts which have emerged concerning (the
applicants') way of life and the home environment indicate, as
the Regional Administrative Court ruled, that the home has not
been a suitable environment for (the child) to grow up in and
that (the applicants) have not been able to meet her special
needs as regards care. The Regional Administrative Court must
therefore be regarded as having had grounds for its decision
to take (the child) into custody under the Act with Special
Provisions on Care of Young Persons. The information which
has come to light concerning the couple's lifestyle after the
implementation of the Care Order under the Act has not to any
significant extent altered the basis of the decision of the
Administrative Court of Appeal. The Care Order under the Act
should therefore stand."
The applicants appealed against this judgment to the Supreme
Administrative Court (regeringsrätten) which, by decision of 28 August
1985, refused to grant leave to appeal.
Subsequent to the above decisions to take the applicants'
daughter into care, a further enquiry was conducted in the autumn of
1985. On the basis of this, the social authorities have now
terminated the care of the applicants' daughter. Since January 1986
she has lived with her parents.
COMPLAINTS
The applicants allege that their rights under Article 8 (Art. 8) of the
Convention have been violated. They maintain that the social authorities have
dealt with their case inappropriately, in particular since they were not warned
that their alleged irregular behaviour might lead to the taking into care of
their daughter.
The applicants further maintain that their daughter was taken
into care on the basis of facts which failed to show that there was a
need for such a step.
THE LAW
The applicants have 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. In
particular they have pointed out that the social authorities' handling of their
case was improper and that the taking into care of their daughter was decided
upon without it having been established that there was a need to do so.
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 Commission finds that the circumstances leading to the
taking of the applicants' daughter into care interfered with their
right to respect for their 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 of Article 8 (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 of Olsson v. Sweden (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 in
its judgment in the Olsson case (Eur. Court H.R., Olsson judgment of
24 March 1988, Series A No. 130, paras. 60-63).
In the opinion of the Commission, there is nothing to suggest
that the decision taken by the courts in the present case was contrary
to Swedish law. The issue of taking the child into care was examined
by the competent administrative courts up to the Supreme Administrative
Court, which refused to grant leave to appeal.
The Commission is furthermore of the opinion 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 falls under the expression "for
the protection of health or morals" and "for the protection of the rights and
freedoms of others".
In these circumstances, the Commission finds that the decision
to take the applicant's child 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 thus 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 Commission recalls that the
applicants have alleged that the social authorities have handled their
case improperly and that the decision to take the child into care was
based on irrelevant circumstances.
In this respect the Commission recalls first of all that,
subsequent to the taking into care of their daughter on a provisional
basis, the applicants met with the Social District Council on
12 February 1985 when the question of maintaining the care order was
discussed. During that meeting the applicants were assisted by
counsel. Furthermore, the Commission recalls that both the Regional
Administrative Court and the Administrative Court of Appeal held oral
hearings. The applicants were present at both hearings and were
assisted by a lawyer. Before these courts the applicants had the
possibility of presenting any views which in their opinion would
be decisive for the outcome of the case. Having regard to these
facts, 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 Regional Administrative Court of 1 March 1985 from
which it appears that the applicants' daughter had developed signs of
psychic disorders, that there was a connection between these disorders
and her home conditions and that the applicants lacked proper insight
into their daughter's state of health. In these circumstances, the
Court considered that the conditions in the home were such as to
constitute a danger to the child's health and development. These
reasons are clearly relevant to a decision to take the child into care,
and in its judgment of 20 June 1985 the Administrative Court of Appeal
upheld the evaluation of the Regional Administrative Court.
However, a decision to take a child into care must be
supported by sufficiently sound and weighty considerations in the
interests of the child since it is not enough that a child would be
better off if placed in care. In order to determine whether the
foregoing reasons can be considered sufficient for the purposes of
Article 8 (Art. 8), the Commission must further examine the circumstances in
which the decision was taken.
In this respect the Commission recalls that a number of
reports issued inter alia by the social authorities and by medical
experts were available to the courts when they considered the care
issue. These reports concluded that the applicants' daughter was
developing a psychic disorder which was based on the home environment.
Furthermore, the Commission recalls that the courts heard a number of
expert witnesses who all supported the findings of the written
opinions submitted. The courts' judgments accordingly were not
founded only on the above documentation but the courts, on the basis
of the hearings held before them, furthermore had the benefit of their
own impressions of the persons involved. Finally the Commission
recalls that the care period lasted approximately one year and that
the child now lives with her parents.
In these circumstances the Commission finds that the decision
to take the applicants' child 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 the applicants' child 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 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
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)