AS TO THE ADMISSIBILITY OF
Application No. 18262/91
by Ingrid HJOST-LUKKONEN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 30 June 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Second 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 12 March 1991 by
Ingrid HJOST-LUKKONEN against Sweden and registered on 27 May 1991
under file No. 18262/91;
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 is a Swedish citizen born in 1939 and residing in
Hisings-Backa in western Sweden. Before the Commission she is
represented by Ms Siv Westerberg, a lawyer practising in Västra
Frölunda.
The facts as submitted by the applicant may be summarised as
follows.
In 1974 the applicant and her husband had a son. In August 1980
the child was taken into public care according to the provisions of the
1960 Child Care Act (barnavårdslagen) as the parents were found to be
overprotective vis à vis the child, thereby retarding his development.
This decision was upheld by the Administrative Court of Appeal
(kammarrätten). No further appeals were lodged. As from 1 January 1982
the care became subject to the provisions of the 1980 Act with Special
Provisions on the Care of Young Persons (lag med särskilda bestämmelser
om vård av unga) and as from 1 July 1992 to the 1990 Act with the same
name.
The child was initially placed in a children's home in Gothenburg
and the parents were allowed frequent and regular visits. However,
after nine months the visiting rights were severely cut and the child
transferred to a foster home in Stafsinge, a locality some 120 km from
the applicant's and her husband's home. During 1981 and 1982 the
applicant and her husband were allowed to see their son once a month
for a couple of hours in the foster home. Since 31 January 1984 there
has been a complete prohibition on all visits.
During a great part of the 1980's the applicant in vain requested
the social authority to lift the care order or at least to grant her
some visiting rights.
In August 1987 the applicant met her present counsel and filed
a new application for visiting rights. The Social District Council
(Sociala distriktsnämnden) in Backa did not take any immediate decision
but asked the applicant, as a preliminary measure, to discuss her case
with two psychologists. The applicant accepted. In April 1988 she wrote
to her counsel stating that she had agreed with the Social District
Council to attempt to solve the problems through further discussions
with the psychologists and requesting counsel to abstain from all
actions. According to what the applicant has stated in her application
to the Commission she sent this letter as she was told by the social
authorities that she would never be allowed to meet her child as long
as she engaged Ms Westerberg as counsel.
On 29 September 1988, the applicant, who had not been allowed to
see her child during her discussions with the psychologists, referring
to the conditions in the home, requested a lifting of the care order.
In the alternative she requested extensive visiting rights (every
weekend and all school holidays) and that her son be moved to another
form of care, preferably to a child psychiatric clinic capable of
providing the necessary support for a reunion. The Social District
Council refused the requests by decision of 21 March 1989. The
applicant appealed to the County Administrative Court (länsrätten)
which rejected the appeal by judgment of 19 May 1989. The Court
summarised its reasons as follows:
"[The applicant's son] has clearly stated that he strongly
opposes any change of his present conditions. In view of his age
and maturity his wish has to be respected. What the [applicant]
has stated in her appeal is not of a character to give her wishes
precedence before those of her [son]. In view of the conflict
which exists between the natural parents and the [child] it is
clear that there is a need to maintain public care. The
conditions are such that it is not possible to consider some
other form of care. It is not possible to accede to any of the
requests contained in the appeal. The appeal is accordingly
rejected."
The applicant appealed to the Administrative Court of Appeal
(kammarrätten). By judgment of 19 September 1989 the Court upheld the
lower court's decisions as far as the requests regarding termination
of care and visiting rights were concerned. The conditions in the
parents' home were still held to be such that public care had to be
maintained and visiting rights could not be granted in view of the
child's strong objections and need for a calm upbringing. The Court
also observed that as the applicant's son was now almost 15 years old
it would in any event be practically impossible to enforce any decision
regarding visiting rights against his will. The request to have the son
removed from the foster home was rejected on the ground that there was
no right of appeal against the Social District Council's decision on
this point.
The applicant appealed to the Supreme Administrative Court
(Regeringsrätten) which granted leave to appeal. By judgment of
20 December 1990 it rejected the appeal. It found it established that
the child's open antagonism vis à vis his natural parents created a
considerable risk of harm to his development and health if the care
order were to be lifted and that the origin of this risk was to be
found in the conditions of the parents' home. It also found that the
child's attitude made it impossible to grant any visiting rights.
COMPLAINTS
1. The applicant complains of a violation of Article 8 in that the
social authorities have made no attempt to reunite the family and have
refused to accept the measures proposed by the applicant to facilitate
reunification. In addition, the maintenance in force of the care order
is unnecessary and in violation of Swedish law as there are no
shortcomings in her home.
2. The applicant furthermore alleges that the total separation of
the applicant and her child for such a long time as in the present case
resulted from a form of "brainwash" of her child in violation of
Article 3 of the Convention.
3. The applicant also alleges a violation of Articles 6 and 13 as
a result of the social authorities' alleged refusal to take any
immediate decision in response to the first request for visiting rights
in August 1987 and as a result of the length of time which elapsed
before a final decision was taken by the courts.
4. Finally, she maintains that the conditions in the foster home
amount to forced labour in violation of Article 4 of the Convention.
THE LAW
1. The applicant alleges a violation of Article 8 (Art. 8) of the
Convention in that the social authorities have made no attempt to
reunite the family and have refused to take the measures proposed by
the applicant to facilitate reunification. In addition, the maintenance
in force of the care order is unnecessary and in violation of Swedish
law as there are no shortcomings in her home. Article 8 (Art. 8) reads:
"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."
As to the alleged failure of the authorities to take measures
aimed at reuniting the family, the Commission notes that to the extent
that the substance of this complaint was not covered by the applicant's
request of 29 September 1988 to the Social District Council, she has
not complied with her obligations under Article 26 (Art. 26) of the
Convention of exhausting domestic remedies and of filing any complaint
alleging a violation of the Convention within 6 months of the final
domestic decision, or failing such a decision, within six months of the
event complained of (see, as to the last point, No. 10389/83, Dec.
17.7.86, D.R. 47 p. 72). The Commission notes in particular that the
applicant could at all moments have challenged the access prohibition
imposed in January 1984 before the administrative courts.
To the extent indicated above her complaint is, accordingly,
inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the
Convention.
2. The above-mentioned request of 29 September 1988 to the Social
District Council concerned the prohibition on access, the possibility
of moving the child to a child psychiatric clinic and the lifting of
the care order.
The Commission finds that these decisions constituted an
interference with the applicant's right to respect for her family life
within the meaning of Article 8 (Art. 8) of the Convention (see,
mutatis mutandis, e.g. Eur. Court. H.R., W. v. the United Kingdom
judgment of 8 July 1987, Series A no. 121, p. 27, para. 59). The
Commission must therefore examine whether these interferences were
justified under Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission finds that in the circumstances of the case it is
appropriate to make a joint examination of the justification of these
interferences with the applicant's family life.
The Commission notes that the impugned decisions were taken
pursuant to the 1980 Act with Special Provisions on the Care of Young
Persons. As regards in paticular the lawfulness of the refusal to lift
the care order, the Commission recalls that it is primarily for the
national authorities, and notably the courts, to interpret and apply
domestic law (see, Eur. Court H.R., Olsson II judgment of 27 November
1992, Series A No. 250, para. 79). In the present case the Commission
has found nothing to indicate that the refusal to lift the care order
was not in accordance with the domestic law in force.
As regards the aim of these interferences, the Commission notes
that they were all taken with a view to protecting the interests of the
child, notably his health and his own rights. The Commission
accordingly concludes that the interferences had legitimate aims.
As to the necessity of the interferences, the Commission observes
that the authorities attached great weight to the clear statements made
by the applicant's son as to his position on the disputed points and
to his age and maturity. The Commission also notes the Administrative
Court of Appeal's statement as to the impossibility of enforcing any
decision contrary to the wishes of a 15 year old boy. The Commission
finds that these reasons are relevant and sufficient to show that the
interferences were necessary in a democratic society in order to
achieve the legitimate aims pursued.
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.
3. The applicant also alleges that her total separation from her
child for such a long time as in the present case resulted from a form
of "brainwash" of the child in violation of Article 3 (Art. 3) of the
Convention.
The Commission recalls that it has found the prohibition on
access, to the extent that it has been competent to examine this
prohibition, to have been necessary in a democratic society in order
to protect the child's rights and health. In such circumstances the
Commission cannot find that the maintenance in force of this
prohibition discloses any appearance of a violation of Article 3
(Art. 3) 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.
4. The applicant furthermore alleges a violation of Articles 6 and
13 (Art. 6, 13) of the Convention as a result of the social
authorities' alleged refusal to take any immediate decision in response
to the first request for visiting rights in August 1987 and as a result
of the length of time which elapsed before a final decision was taken
by the courts.
Article 6 para. 1 (Art. 6-1) reads in relevant parts:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time
by ... [a] tribunal ... ."
The Commission recalls that the requirements of Article 6
(Art. 6) cover the right of access to court and that these requirements
are stricter than those imposed by Article 13 (Art. 13) (see, Eur.
Court H.R., Håkansson and Sturesson judgment of 21 February 1990,
Series A No, 171, pp. 20-21, paras. 62-63 and 69). Accordingly, the
Commission will first examine the present complaint in the light of the
former Article.
The Commission finds that the disputes regarding the applicant's
right of access to her child in public care fell within the scope of
Article 6 para. 1 (Art. 6-1) as they concerned the determination of her
right of access as recognised under Swedish law (see, e.g. Eur. Court
H.R., O v. United Kingdom judgment of 8 July 1987, Series A No. 120-A,
pp. 24-26, paras. 53-58).
The Commission notes as regards the Social District Council's
alleged refusal to take an immediate decision in response to the
request of August 1987 that the impugned situation was the result of
an agreement with the applicant. The Commission notes the applicant's
statements about the circumstances in which this agreement was
allegedly reached. It does not find it necessary to examine whether
these statements are correct as it considers that the applicant was not
in fact prevented from pursuing her request and from appealing against
a refusal by the authority to the administrative courts in order to
have the courts examine the reasons for the refusal. The Commission,
accordingly, finds that the applicant's complaint under Article 6
(Art. 6) of the Convention on this point is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. It follows from the above conclusion that the period to be taken
into account in determining the reasonableness of the length of the
court proceedings regarding her requests for access and a lifting of
the care order started when the applicant submitted her request to the
Social District Council on 29 September 1988 (see, inter alia, Eur.
Court H.R., Olsson II judgment of 27 November 1992, Series A No. 250,
para. 101). The period ended with the Supreme Administrative Court's
judgment on 20 December 1990. The period to be taken into account
accordingly amounts to approximately two years and three months. The
Commission notes that the issues involved in the proceedings were of
some complexity and that the proceedings comprised full review at three
levels. In these circumstances the Commission cannot find that the
length of the proceedings exceeded the "reasonable time" provided for
in Article 6 para. 1 (Art. 6-1) (see, mutatis mutandis, the above
mentioned Olsson II judgment, paras. 101-103). This part of the
application is accordingly also manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
6. In the light of its conclusions above the Commission finds no
separate issue under Article 13 (Art. 13) of the Convention and this
complaint is accordingly also manifestly ill-founded.
7. Finally, the applicant maintains that the conditions in the
foster home amount to forced labour in violation of Article 4
(Art. 4) of the Convention.
The Commission notes that this complaint relates to a violation
of the rights of the child and moreover finds nothing to substantiate
this allegation. Accordingly, this part of the application is also
manifestly ill-founded.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy