JOHANSSON AND OTHERS v. SWEDEN



                      AS TO THE ADMISSIBILITY OF

                      Application No. 21608/93

                      by Anita JOHANSSON and Others

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, the following members being present:

           Mrs.  G.H. THUNE, Acting President

           MM.   H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, 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 6 March 1993 by

Anita Johansson and others against Sweden and registered on

31 March 1993 under file No. 21608/93;

      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

a.    The particular circumstances of the case

      The applicants are Anita Johansson, her daughter Jessica

Johansson and her parents Gustaf and Greta Johansson, all Swedish

citizens.  They were born in 1955, 1981, 1914 and 1930, respectively.

Gustaf Johansson died in May 1994.  Anita and Greta Johansson reside

at Kalmar, while Jessica Johansson lives at Karlskrona.  Before the

Commission they are represented by Mrs. Siv Westerberg, a lawyer

practising in Gothenburg.

      The facts of the case, as submitted by the applicants, may be

summarised as follows.

      Between 1961 and 1977 Anita Johansson was registered by the Care

Council (Omsorgsstyrelsen) as being in need of special assistance owing

to a minor mental retardation.

      By decisions of 2 April and 19 May 1981 the Social Council

(Socialnämnden) of Karlskrona ("the Council") took Jessica, one month

old at the time of the first decision, into public care.  The decisions

were later confirmed by the County Administrative Court (Länsrätten)

of the County of Blekinge and the Administrative Court of Appeal

(Kammarrätten) of Jönköping on the grounds that Anita Johansson was

unable to rear Jessica and that, due to the conditions in the home,

there was a risk of impairment of Jessica's health and development.

On 7 October 1982 the Supreme Administrative Court (Regeringsrätten)

refused leave to appeal.  At regular intervals thereafter, the Council

re-examined the situation and decided not to terminate the public care.

These decisions were either not appealed or upheld on appeal by the

administrative courts.

      By a Council decision of 20 July 1981, Jessica was placed with

foster parents and her mother was granted access to her once every five

weeks.  Also this decision was reviewed at regular intervals by the

Council and, on appeal, by the courts.  Thus, by a Council decision of

13 September 1982, Greta Johansson was granted a right to be present

every fourth time Anita Johansson visited Jessica.  This right was,

however, revoked by a Council decision of 12 November 1984, after which

date Greta Johansson has met Jessica only once, in January 1993.  The

decision of 12 November 1984 also limited Anita Johansson's right of

access to two visits in the foster-home per year.  In this respect the

decision was overturned by the County Administrative Court which

decided, on 5 March 1985, to grant Anita Johansson access to her

daughter every four weeks for five hours at a time in the foster-home.

This was to be the extent of her access for several years thereafter.

      In February 1992, Anita Johansson requested that the public care

be terminated or, in the second place, that she be granted a right to

meet Jessica for longer periods of time and at her own home.  Her

request was refused by the Council on 6 April 1992.  After she had

appealed against this decision on behalf of herself and her daughter,

the County Administrative Court and the Administrative Court of Appeal,

in decisions of 12 May 1992 and 10 July 1992 respectively, refused to

appoint her representative, Mrs. Siv Westerberg, as public counsel.

Although invited to propose another lawyer to be her public counsel,

Anita Johansson apparently did not do so, nor did she appeal against

the appellate court's decision to the Supreme Administrative Court.

Instead, Mrs. Westerberg represented her as privately appointed

counsel.

      By judgment of 30 June 1992, the County Administrative Court

rejected the appeal against the Council's decision of 6 April 1992 not

to terminate care.  It stated that, although Anita Johansson's social

situation had somewhat improved, this did not give cause for the Court

to change the opinion it had expressed in previous judgments on the

matter.  Noting that Jessica had a minor mental retardation and thus

special needs, the Court concluded that Anita Johansson, who was also

slightly mentally retarded, was unable to take care of her.  As

concerns the question of access, the Court, noting that Anita Johansson

had never had the sole responsibility for her daughter and that there

was no person who could support her in taking care of her daughter,

considered that overnight stays at Anita Johansson's home could not be

permitted since Jessica's security could not be guaranteed.  Taking

into account Jessica's age, the Court, nevertheless, found that Anita

Johansson's access to her daughter should be extended to six hours on

both Saturday and Sunday every fourth weekend and should not be

confined to the foster-home.  Before deciding on the case, the Court

had held an oral hearing at which Anita Johansson and her counsel,

Jessica's public counsel and representatives of the Council had been

present and heard.  The Court also had at its disposal the parties'

written submissions, including a report by the Council.

      After Anita Johansson had appealed on behalf of herself and

Jessica, the Administrative Court of Appeal held a further hearing in

the case.  The persons present and heard were the same as at the

hearing at first instance.  On 29 September 1992, the appellate court

confirmed the evaluation of the County Administrative Court and thus

rejected the appeal.  However, as far as access was concerned, the

appellate court stated that, if the extended meetings went well, it did

not rule out the possibility of overnight stays in Anita Johansson's

home in the near future.  On 6 November 1992 the Supreme Administrative

Court refused leave to appeal.

      In response to Anita Johansson's complaints about the conditions

in the foster-home, the Council carried out an investigation, during

which it heard the foster-mother, her former husband, her present

cohabitee and Jessica and also contacted the local police station.  It

further had regard to a statement from a children's psychiatric clinic

and to previous investigations, during which, inter alia, Jessica's

school teachers had been heard.  Concluding that the complaints were

groundless, the Council decided, on 28 September 1992, that Jessica

should stay in the foster-home.  In an appeal lodged on behalf of

herself and Jessica, Anita Johansson requested that the public care be

terminated.  On 9 February 1993 the County Administrative Court found

that the Council's decision did not concern the question of termination

of care, for which reason the Court could not examine the request.  The

Court, therefore, dismissed the appeal.  Anita Johansson did not appeal

against the Court's decision.

      After the Supreme Administrative Court's refusal of leave to

appeal on 6 November 1992 Anita Johansson's right of access to her

daughter was fixed at six hours on both Saturday and Sunday every

fourth weekend without restrictions as to the place of the meetings.

After this date, several letters were exchanged between Anita

Johansson, her representative and the Council concerning the dates,

places and other details of the planned meetings.  Apparently, however,

Anita Johansson and Jessica have met only three times since November

1992, twice (in November and December 1992) in the foster-home and once

(in January 1993) in Anita and Greta Johansson's home in the presence

of two social workers.  According to the Council, Jessica, who was now

almost twelve years old, subsequently refused to make any further

visits to Anita Johansson's home.  Instead, she wanted future meetings

to take place in the foster-home.  She further stated that she did not

want to see her grandmother at all.  Thereafter, the Council,

accordingly, suggested that meetings take place at the foster-home or

at other places.  These proposals were, however, refused by Anita

Johansson and her representative, who claimed that Anita Johansson had

a right of access at her own home.  Alleging, inter alia, that the

Council had refused to abide by the courts' judgments and that the

social workers and the foster-mother had put pressure on Jessica to

refuse visits to Anita Johansson's home, they requested the regional

public prosecutor to indict four social workers with official

misconduct and reported the Council's handling of the matter to the

Parliamentary Ombudsman (Justitieombudsmannen).  In a letter to the

Ombudsman, they further claimed that the two social workers had been

present at the meeting at Anita Johansson's home in contravention of

the courts' judgments and that they had sabotaged the meeting.

Allegedly, the social workers had broken in on Jessica's and Anita

Johansson's activities to discuss future access arrangements and had,

furthermore, put questions to Jessica concerning Anita Johansson's

allegation that a former cohabitee of the foster-mother had sexually

offended Jessica.  On 25 May 1993 the prosecutor decided not to

institute an investigation and on 23 September 1993 the Ombudsman

decided not to take any action.  In her decision the Ombudsman stated

that the Council had made several attempts to bring about meetings

between Anita Johansson and Jessica in accordance with the courts'

judgments and that there was no reason to blame the Council for the

failure of these attempts.

      By decisions of 10 May and 17 June 1993, the Council rejected a

request by Gustaf and Greta Johansson for a right of access to their

granddaughter.  The Council stated, inter alia, that Jessica had not

met her grandfather for eight years, that she was afraid of both her

grandparents and did not want to meet them, neither at their respective

homes nor in the foster-home, and that it was inappropriate that

Jessica meet them, as they spoke badly of the foster-mother and opposed

Jessica's continued placement in the foster-home.  Apparently, Anita

Johansson and the grandparents had gone to the bank where the

foster-mother worked and told the bank's employees and customers that

the foster-mother had abducted and maltreated Jessica.  On

27 September 1993, the County Administrative Court dismissed the

appeal, noting that the grandparents did not have custody of Jessica

and that, according to Sections 14 and 41 of the Act with Special

Provisions on the Care of Young Persons (Lagen med särskilda

bestämmelser om vård av unga, 1990:52 - "the 1990 Act"), only access

decisions concerning custodians could be appealed.  On 20 October 1993

the dismissal was confirmed by the Administrative Court of Appeal and

on 21 December 1993 the Supreme Administrative Court refused leave to

appeal.

      Because of Anita Johansson's refusal to accept Jessica's

expressed wish for future meetings to take place in the foster-home and

the consequent failure to come to any agreements concerning these

meetings, the Council decided, on 11 October 1993, as part of its

obligation under Section 14 of the 1990 Act to review access decisions

every third month, to restrict Anita Johansson's access to her daughter

to five hours in the foster-home every fourth Saturday or Sunday, i.e.

the same extent as before November 1992.

      On 5 November 1993, Anita Johansson appealed against the

Council's decision on behalf of herself and her daughter to the County

Administrative Court which, by decision of 16 December 1993, refused

their request for a stay of execution and ordered that a psychiatric

examination of Jessica be carried out at the Children's Psychiatric

Clinic (Barn- och ungdomspsykiatriska mottagningen) at Karlskrona.  The

object of the examination was to assess Jessica's maturity, development

and attitude to meetings with her natural mother as well as whether

extended access would endanger Jessica's health and development.  The

date of 20 February 1994 was set as the deadline for submission of the

clinic's report.  The decision not to stay execution was confirmed by

the Administrative Court of Appeal on 28 December 1993 and leave to

appeal was refused by the Supreme Administrative Court on

24 February 1994.

      The psychiatric examination of Jessica was delayed.  In

January 1994 Anita Johansson was informed that it could not be carried

out before March 1994.  Thus, she requested the County Administrative

Court either to dispense with the examination or to request another

clinic to examine Jessica.  This request was, however, refused by the

Court on 21 January 1994.  After having met Jessica three times, the

foster-mother twice and Anita Johansson once, the clinic, on

15 July 1994, submitted its report to the Court.  After having held an

oral hearing on 19 September 1994, the Court, by judgment of

5 October 1994, rejected the appeal.  After a further appeal lodged by

Anita Johansson on behalf of herself and Jessica on 13 October 1994,

the case is apparently pending in the Administrative Court of Appeal.

      At the request of the Council, the District Court (Tingsrätten)

of Karlskrona, on 8 November 1994, appointed a guardian ad litem (god

man) to represent Jessica in the access proceedings.  Anita Johansson

has appealed against this decision on behalf of herself and Jessica,

and the matter is presently pending in the Court of Appeal (Hovrätten)

of Skåne and Blekinge.

b.    Relevant domestic law

      The taking of children into public care without the consent of

the parents is governed by the 1990 Act with Special Provisions on the

Care of Young Persons, which entered into force on 1 July 1990.

Section 2 of the 1990 Act provides that care is to be provided if there

is a clear risk of impairment of the health or development of a person

under eighteen years of age due to ill-treatment, exploitation, lack

of care or any other condition in the home.

      Once public care has been ordered, it is executed by the

Social Council, which decides on the particular details of the care.

Section 11 of the 1990 Act provides that the Council shall decide on

how the care should be arranged and where the child should live.  It

may also decide on questions concerning the child's personal

conditions.  With respect to parents' or other custodians' access, the

Council may, pursuant to Section 14, decide on how this access should

be arranged.  Swedish law does not afford grandparents any rights over

their grandchildren.

      Section 41 of the 1990 Act determines the right of appeal. It

reads, in relevant parts, as follows:

(translation)

      "The Council's decisions may be appealed to the County

      Administrative Court, if the Council has

      1.  decided where the care of the young person is to begin

      or decided on the removal of the young person from the home

      where he or she is living,

      2.  decided on the continuation of care in accordance with

      the Act,

      3.  decided on access in accordance with Section 14 ...

      ..."

      The decisions of the County Administrative Court may, pursuant

to Section 33 of the Administrative Procedure Act (Förvaltnings-

processlagen, 1971:291), be appealed to the Administrative Court of

Appeal and the Supreme Administrative Court.

COMPLAINTS

1.    The applicants complain of a lack of respect for their family

life in violation of Article 8 of the Convention as a result of

      a)  the refusal to terminate the public care of Jessica and the

      restrictions on Anita, Gustaf and Greta Johansson's access to

      her; and

      b)  the placement of Jessica in an unsuitable foster-home and her

      visits to a former cohabitee of the foster-mother.

2.    Under Article 6 of the Convention Anita Johansson makes the

following complaints:

      a)  the Council did not inform her of its decisions in 1981 to

      take Jessica into care;

      b)  she has been denied a fair hearing by an impartial tribunal

      in that, because of the previous registration by the Care

      Council, the courts have had preconceived ideas about her and

      have treated her in a condescending way, e.g., by calling her by

      her first name;

      c)  she has been denied a fair hearing also because of the

      courts' refusal to appoint her representative, Mrs. Westerberg,

      as public counsel;

      d)  the courts have not taken into account the change of

      circumstances since the initial care decision; and

      e)  the length of the court proceedings concerning the Council's

      decision of 11 October 1993 is unacceptable.

3.    Also under Article 6 of the Convention the applicants submit the

following complaints as to the impossibility of bringing certain issues

before a court:

      a)  All applicants claim to have been unable to challenge in a

      court the social authorities' alleged refusal to comply with the

      access judgment of the Administrative Court of Appeal.  Anita

      Johansson maintains that she could not, on behalf of Jessica,

      bring before a court the question whether Jessica should visit

      the foster-mother's former cohabitee, nor could she, on her own

      behalf, obtain a court review of the social workers' behaviour

      in connection with Jessica's visit to Anita Johansson's home in

      January 1993.

      b)  Gustaf and Greta Johansson and Anita Johansson on behalf of

      Jessica allege that they could not bring before a court the

      question of the grandparents' access to Jessica.

      c)  Anita Johansson contends, on behalf of herself and Jessica,

      that they were denied the possibility to appeal against the

      conclusions of the Council's investigation of the conditions in

      the foster-home.

      d)  All applicants claim that they had no access to a court where

      they could challenge the length of the court proceedings

      following the Council's decision of 11 October 1993 to restrict

      Anita Johansson's access.

4.    With regard to the complaints under 3) above, the applicants also

allege violations of Article 13 of the Convention.

5.    Anita, Gustaf and Greta Johansson maintain that their right to

freedom of expression under Article 10 of the Convention has been

violated in that the grandparents have been denied access to Jessica

Johansson owing to statements Anita, Gustaf and Greta Johansson have

made about the foster-mother.

6.    Anita Johansson contends that the registration by the Care

Council and the consequential derogatory treatment of her by Swedish

authorities and courts constitute a violation of Article 14 of the

Convention.

7.    Without invoking any Article of the Convention, Anita Johansson,

on behalf of herself and Jessica, further complains of the District

Court's decision to appoint a guardian ad litem for Jessica.

THE LAW

      The Commission first observes that Gustaf Johansson died in

May 1994.  The Commission has not obtained a statement from his legal

successor or successors whether they wish to pursue the application on

his behalf.  However, as complaints identical to his have been

submitted by Greta Johansson, the Commission considers that it is not

necessary to take a separate decision, under Article 25 (Art. 25) of

the Convention, as to whether or not to examine his complaints.

Therefore, the Commission will deal with his complaints in the same way

as if they had been maintained by his legal successor or successors

(cf. No. 6166/73, Dec. 30.5.75, D.R. 2 p. 58 at p. 66).

1.    The applicants complain of a lack of respect for their family

life as a result of

      a)  the refusal to terminate the public care of Jessica and the

      restrictions on Anita, Gustaf and Greta Johansson's access to

      her; and

      b)  the placement of Jessica in an unsuitable foster-home and her

      visits to a former cohabitee of the foster-mother.

      They invoke Article 8 (Art. 8) of the Convention, which reads as

follows:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.  There shall be no interference by a public authority

      with the exercise of this right except such as is in

      accordance with the law and is necessary in a democratic

      society in the interests of national security, public

      safety or the economic well-being of the country, for the

      prevention of disorder or crime, for the protection of

      health or morals, or for the protection of the rights and

      freedoms of others."

      The Commission has examined the respective complaints separately.

a)    The Commission, recalling that the present application was

introduced on 6 March 1993, first notes that, in accordance with

Article 26 (Art. 26) of the Convention, it may only examine the

proceedings starting with the Council's decisions of 6 April 1992

concerning termination of care and Anita Johansson's access and of

10 May 1993 concerning the grandparents' access as well as the

subsequent court proceedings, as earlier proceedings concerning care

and access have been concluded by decisions taken more than six months

before the introduction of the present application.  Furthermore, the

access proceedings starting with the Council's decision of 11 October

1993 are still pending in the Administrative Court of Appeal, for which

reason domestic remedies have not been exhausted.

      As regards the refusal to terminate the public care the

applicants submit that since the initial decision to take Jessica into

care Anita Johansson's situation has changed; while the initial

decision concerned a single mother and a new-born child, the present

situation involves a mother who, helped by the child's grandmother, is

going to take care of her 13-year-old daughter.  As concerns the

restrictions on access, the applicants maintain that they have been

punished for negative remarks they have made about the foster-mother

and the conditions in the foster-home.  The applicants also allege that

the social authorities have refused to comply with the judgment of the

Administrative Court of Appeal concerning Anita Johansson's right of

access to her daughter in Anita Johansson's home.

      As regards Jessica and Anita Johansson, the Commission finds that

the refusal to terminate care and the restrictions on access 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 these interferences were 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 interferences must be "in

accordance with the law", they must pursue one or more of the

legitimate aims enumerated in para.  2 and they must be "necessary in

a democratic society" for these aims.

      As to the first condition, the Commission finds that the

administrative courts' decisions concerning care and access were in

conformity with Swedish law, namely Sections 2 and 14 of the 1990 Act.

      The Commission further finds that the interferences 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" (cf. Eur. Court H.R., Olsson judgment of

24 March 1988, Series A no. 130, p. 31, paras. 64-65).

      It thus remains to be determined whether the interferences with

Jessica and Anita Johansson's rights were "necessary in a democratic

society" in the interests of the child.

      According to the established case-law of the Commission and the

European Court of Human Rights, the notion of necessity implies that

the interferences correspond to a pressing social need and, in

particular, that they are proportionate to the legitimate aim pursued.

In determining whether interferences are "necessary in a democratic

society", the Commission furthermore has to take into account that a

margin of appreciation is left to the Contracting States.  That does

not mean, however, that the Commission's review is 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 interferences at

issue are "relevant and sufficient" (cf. above-mentioned Olsson

judgment, pp. 31-32, paras. 67-68).

      In so far as the refusal to terminate care is concerned, the

Commission recalls that the County Administrative Court and the

Administrative Court of Appeal, in their respective decisions of

30 June and 29 September 1992, stated that Anita Johansson's social

situation had somewhat improved since the taking of Jessica into care,

but that, because of their respective mental handicaps, Anita Johansson

was still unable to take care of her daughter.  This evaluation was

made on the basis not only of written material but also of statements

made at two oral hearings where Jessica's public counsel,

Anita Johansson and her counsel were present and heard.

      In the light of the foregoing the Commission finds that the

refusal to terminate care 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 is was

necessary for the care decision to remain in force.  Accordingly, the

Commission concludes that the decisions not to terminate care can

reasonably be regarded as "necessary in a democratic society" within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

      With regard to the restrictions on Anita Johansson's access to

Jessica, the Commission recalls that for several years Anita Johansson

had access to her daughter once every four weeks in the foster-home.

Because of Jessica's age and improvements of Anita Johansson's social

situation, the courts decided to extend access to six hours on both

Saturday and Sunday every fourth weekend without restrictions as to the

meeting-place.  The Commission further recalls that several attempts

were made by the Council after November 1992 to arrange meetings

between Anita Johansson and her daughter.  Because of Jessica's refusal

to accept such meetings outside the foster-home, it proved to be

impossible to arrange any meetings in Anita Johansson's home.  Instead,

the Council suggested that meetings take place in the foster-home or

at other places.  These suggestions were, however, not accepted by

Anita Johansson, for which reason no meetings have taken place since

January 1993.  The Parliamentary Ombudsman found in September 1993 that

the Council could not be blamed for the failure of its attempts to

bring about meetings.

      The Commission, noting that the restrictions on Anita Johansson's

access were based on careful examination by the Council, the County

Administrative Court and the Administrative Court of Appeal, finds the

restrictions to be justifiable, taking into account that Jessica had

been placed with foster-parents since 1981 and that Anita Johansson had

had access to a lesser extent before 1992.  If the improvement of

Anita Johansson's social situation allowed for increased access to her

daughter, it was reasonable, in the interests of the daughter, to

increase access gradually.  In this connection, the Commission recalls

that the Administrative Court of Appeal did not rule out the

possibility of overnight stays in Anita Johansson's home in the near

future, if the extended meetings went well.  As to the alleged refusal

of the Council to comply with the courts' decisions, the Commission

considers that the Council made sufficient attempts to bring about

meetings and had regard to the wishes of both Anita Johansson and

Jessica.  The Commission agrees with the Parliamentary Ombudsman that

the failure of these attempts cannot be blamed on the Council.

      For these reasons, the Commission finds that the restrictions on

access were supported by relevant and sufficient reasons and that,

having regard to their margin of appreciation, the Swedish authorities

were reasonably entitled to think that is was necessary to restrict

Anita Johansson's access.  Accordingly, the Commission concludes that

the restriction can reasonably be regarded as "necessary in a

democratic society" within the meaning of Article 8 para. 2 (Art. 8-2)

of the Convention.

      Gustaf and Greta Johansson also allege that the refusal to

terminate care and the restrictions on their access have violated their

right to respect for their family life.  However, leaving aside the

question whether they can be regarded as "victims" within the meaning

of Article 25 (Art. 25) of the Convention of the decision not to

terminate care although they were not parties to the domestic

proceedings, the Commission considers that, even assuming that their

relation to Jessica constitutes "family life" which has been interfered

with within the meaning of Article 8 para. 1 (Art. 8-1) of the

Convention, the interferences were permissible under para. 2 of this

provision.  In reaching this conclusion, the Commission considers that

the Council's decision to refuse access was in conformity with Swedish

law, namely Section 11 of the 1990 Act.  The Commission further takes

into account the above conclusions concerning Jessica and Anita

Johansson and the fact that since November 1984 Gustaf Johansson had

never met Jessica and Greta Johansson had met her only once.

      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.

b)    As concerns the allegation that the foster-home is unsuitable,

the applicants submit, inter alia, that the foster-mother has

promiscuous sexual relations, that she and her present cohabitee are

often drunk and that Jessica is left alone when the foster-mother is

at work.  The applicants further allege that the Council forces Jessica

to visit the foster-mother's former cohabitee, who sexually abuses her.

      The Commission, noting that the Council has carried out a

thorough investigation of these allegations, finds that the applicants'

submissions are not substantiated and therefore do not disclose any

appearance of a violation of Article 8 (Art. 8) of the Convention in

respect of this complaint.

      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.

2.    Under Article 6 (Art. 6) of the Convention Anita Johansson makes

the following complaints:

      a)  the Council did not inform her of its decisions in 1981 to

      take Jessica into care;

      b)  she has been denied a fair hearing by an impartial tribunal

      in that, because of the previous registration by the Care

      Council, the courts have had preconceived ideas about her and

      have treated her in a condescending way;

      c)  she has been denied a fair hearing also because of the

      courts' refusal to appoint her representative, Mrs. Westerberg,

      as public counsel;

      d)  the courts have not taken into account the change of

      circumstances since the initial care decision; and

      e)  the length of the court proceedings concerning the Council's

      decision of 11 October 1993 is unacceptable.

      These complaints fall to be considered under Article 6 para. 1

(Art. 6-1) of the Convention which, in so far as relevant, reads as

follows:

      "In the determination of his civil rights ..., everyone is

      entitled to a fair ...  hearing within a reasonable time by

      an independent and impartial tribunal ..."

      The Commission has examined the respective complaints separately.

a)    As regards the Council's alleged failure to inform about the

initial care decision, the Commission is not required to decide whether

or not the facts alleged by the applicant disclose any appearance of

a violation of Article 6 (Art. 6) of the Convention, as Article 26

(Art. 26) of the Convention provides that the Commission "may only deal

with the matter ...  within a period of six months ...".  The alleged

violation concerns decisions given in 1981, which is more than six

months before the introduction of the present application.

      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.

b)    In support of her allegation that the courts have not been

impartial, Anita Johansson submits that the presiding judges and other

persons present at the hearings have called her by her first name

instead of her full name.

      The Commission, noting that the applicant has not specified in

which proceedings these alleged violations have occurred, finds that

she has failed to substantiate that the courts have not been impartial

in her case.

      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.

c)    Anita Johansson claims that the refusal to appoint Mrs.

Westerberg as her public counsel has violated her right to a fair

hearing, as Mrs. Westerberg is the only lawyer who is able to give her

adequate assistance.

      The Commission is, however, not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 6 (Art. 6) of the Convention in respect of this

complaint as, under Article 26 (Art. 26) all domestic remedies have

been exhausted, according to the generally recognised rules of

international law ...".

      In regard to this complaint the applicant failed to appeal

against the decision of the Administrative Court of Appeal of

10 July 1992 not to appoint Mrs. Westerberg as her public counsel, for

which reason she has not exhausted the remedies available under Swedish

law.  Moreover, an examination of the case does not disclose the

existence of any special circumstance which might have absolved the

applicant from exhausting the remedies at her disposal.

      It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

d)    As concerns the courts' alleged refusal to take into account

changed circumstances, Anita Johansson submits that they have not had

regard to the fact that the initial decision to take Jessica into care

concerned a single mother and a new-born child, while the present

situation involves a mother who, helped by the child's grandmother, is

going to take care of her 13-year-old daughter.

      The Commission recalls that the County Administrative Court, in

its judgment of 30 June 1992 which was upheld on appeal, noted that

Anita Johansson's social situation had somewhat improved and took into

account the age of Jessica when deciding to extend Anita Johansson's

access to her.  It has, therefore, not been established that the courts

have failed to take into account the changed circumstances of the case.

      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.

e)    With regard to the complaint concerning the length of the court

proceedings following the Council's decision of 11 October 1993 to

reduce Anita Johansson's access to Jessica, the Commission recalls that

Anita Johansson appealed against the decision on behalf of herself and

her daughter on 5 November 1993.  The proceedings have not yet ended,

and have to date lasted more than 15 months.

      The Commission further recalls that, on 16 December 1993, the

County Administrative Court decided not to stay the execution of the

Council's decision and ordered a psychiatric examination of Jessica to

be carried out, that the psychiatric clinic's report was submitted to

the Court on 15 July 1994 and that the Court, after holding an oral

hearing on 19 September 1994, delivered its judgment on 5 October 1994.

Furthermore, on 13 October 1994 an appeal was lodged with the

Administrative Court of Appeal, where the case is apparently still

pending.

      The reasonableness of the length of proceedings is to be

considered in the light of the criteria laid down in the case-law of

the European Court of Human Rights, in particular the complexity of the

case, the conduct of the applicant and that of the relevant

authorities.  On the latter point, the importance of what is at stake

for the applicant in the litigation has to be taken into account

(cf., e.g., Vallée v. France judgment of 26 April 1994, Series A

no. 289-A, p. 17, para. 34).

      The applicant has not supplied any information on the proceedings

of the Administrative Court of Appeal, for which reason the Commission

sees no reason to criticise that part of the proceedings.

      The Commission further finds the County Administrative Court's

decision to order a psychiatric examination of Jessica to be

justifiable.  The examination was delayed and the report was submitted

seven months after the Court's order.  However, the total length of the

proceedings in that Court was eleven months, which the Commission

considers not in itself to be excessive, although it is essential that

access cases are dealt with speedily.  In reaching this conclusion, the

Commission takes into account that the case was rather complex due to

the disagreements between Anita Johansson and Jessica as to the access

arrangements and that Anita Johansson was not denied the right of

access during the proceedings, but that it was only limited in relation

to previous court judgments on the matter.

      Having regard to the particular circumstances of the case, the

Commission finds that the length of the court proceedings following the

Council's decision of 11 October 1993 has not exceeded a "reasonable

time" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

      It follows that also this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    Also under Article 6 (Art. 6) of the Convention the applicants

submit the following complaints as to the alleged impossibility of

bringing certain issues before a court:

      a)  All applicants claim to have been unable to challenge in a

      court the social authorities' alleged refusal to comply with the

      access judgment of the Administrative Court of Appeal.  Anita

      Johansson maintains that she could not, on behalf of Jessica,

      bring before a court the question whether Jessica should visit

      the foster-mother's former cohabitee, nor could she, on her own

      behalf, obtain a court review of the social workers' behaviour

      in connection with Jessica's visit to Anita Johansson's home in

      January 1993.

      b)  Gustaf and Greta Johansson and Anita Johansson on behalf of

      Jessica allege that they could not bring before a court the

      question of the grandparents' access to Jessica.

      c)  Anita Johansson contends, on behalf of herself and Jessica,

      that they were denied the possibility to appeal against the

      conclusions of the Council's investigation of the conditions in

      the foster-home.

      d)  All applicants claim that they had no access to a court where

      they could challenge the length of the court proceedings

      following the Council's decision of 11 October 1993 to restrict

      Anita Johansson's access.

      The Commission has examined the respective complaints separately.

a)    The Commission, noting that the complaints under a) above fall

to be considered under Article 6 para. 1 (Art. 6-1) of the Convention,

recalls that the applicability of this provision depends on whether

there was a dispute over a "right" which can be said, at least on

arguable grounds, to be recognised under domestic law, and, if so,

whether this "right" was of a "civil" character within the meaning of

Article 6 para. 1 (Art. 6-1).  In particular, the dispute must be

genuine and serious, it may relate not only to the actual existence of

a right but also to its scope and the manner of its exercise (cf.

Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989, Series

A no. 163, p. 19, paras. 66-67).

      The Commission further recalls that, although access to children

is an area in which it is essential to ensure that the rights of

individual parents are protected in accordance with Article 6 para. 1

(Art. 6-1), this provision does not require that all access decisions

must be taken by the courts but only that they shall have the power to

determine any substantial disputes that may arise (cf. Eur. Court H.R.,

O v. the United Kingdom judgment of 8 July 1987, Series A no. 120-A,

pp. 26-27, para. 60).  In this connection, the Commission considers

that some discretion as to the implementation of access decisions must

be left to the competent administrative authorities.  Unless the

implementing measures go beyond this discretion and circumscribe the

essence of the access rights, there is no dispute over "civil rights"

within the meaning of Article 6 para. 1 (Art. 6-1) and thus no right

of access to court.

      The Commission reiterates its conclusion under 1 a) above that

the Council, after the courts' access decisions in 1992, made

sufficient attempts to bring about meetings between Anita Johansson and

Jessica.  In implementing these decisions, the Council had to consider

Jessica's wishes and that, in her interest, the extended access would

have to be realised gradually.  Following Jessica's refusal to visit

Anita Johansson's home, the Council found it inappropriate to enforce

such visits and instead suggested that meetings take place at the

foster-home and at other places.  The Commission finds that the

Council, in making these considerations, did not go beyond its proper

discretion as to the implementation of the courts' decisions.  The

Commission further finds that also the decision that Jessica should

visit the foster-mother's former cohabitee and the particular

arrangements made in connection with Jessica's visit to Anita

Johansson's home fall under these discretionary powers.

      For these reasons, the Commission, leaving aside the question

whether Gustaf and Greta Johansson can be regarded as "victims" of the

measures implementing Anita Johansson's access, considers that the

Council's conduct and decisions did not involve a determination of the

applicants' civil rights within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

      It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

b)    As concerns the complaint that a court review could not be

obtained concerning the question of the grandparents' access to

Jessica, the Commission recalls that under Swedish law Gustaf and Greta

Johansson had no right of access to their granddaughter.  Thus the

applicants cannot claim on any arguable ground that they had a right

under domestic law, for which reason Article 6 (Art. 6) is not

applicable.

      It follows that this part of the application is also incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

c)    With regard to the contention that Anita and Jessica Johansson

were denied the possibility to appeal against the Council's conclusions

as to the conditions in the foster-home, the Commissions recalls that

the Council, after a thorough investigation, found Anita Johansson's

complaints to be groundless and decided, on 28 September 1992,

that Jessica should stay in the foster-home.  By decision

of 9 February 1993, the County Administrative Court dismissed Anita

Johansson's appeal, stating that it could not examine her request to

have the public care terminated, as the Council's decision did not

concern this issue.  The applicants did not appeal against the Court's

decision.

      The Commission notes that, under Section 41 of the 1990 Act, a

Council decision regarding removal of a person from the home where he

is living may be appealed to the County Administrative Court.  It thus

appears that the Council's decision - that Jessica should stay in the

foster-home - could have been appealed to that Court.  In this

connection, the Commission recalls that the reason for the Court's

dismissal of Anita Johansson's appeal was not that the Council's

decision as such could not be appealed but that the appeal concerned

an issue which the Council had not decided on.  The Commission,

therefore, concludes that it has not been shown that Anita and Jessica

Johansson were denied the possibility to appeal against the Council's

decision.

      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.

d)    As concerns the complaint concerning the impossibility to

challenge in a court the length of the court proceedings following the

Council's access decision of 11 October 1993, the Commission notes that

the right to a "hearing within a reasonable time by [a] ... tribunal"

is guaranteed by Article 6 para. 1 (Art. 6-1) in cases where, inter

alia, civil rights are determined.  In the Commission's opinion, this

right cannot, however, as such be regarded as a civil right within the

meaning of this provision.  Accordingly, Article 6 para. 1 (Art. 6-1)

is not applicable to the present complaint.

      It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4.    With regard to the complaints under 3 above, the applicants also

allege violations of Article 13 (Art. 13) of the Convention, which

reads as follows:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy

      before a national authority notwithstanding that the

      violation has been committed by persons acting in an

      official capacity."

      The Commission recalls that this provision has been interpreted

by the European Court of Human Rights as requiring a remedy in domestic

law only in respect of grievances which can be regarded as "arguable"

in terms of the Convention (cf., e.g., Boyle and Rice judgment of

27 April 1988, Series A no. 131, p. 23, para. 52).

      The Commission, having regard to its above conclusions in respect

of the Convention complaints submitted, considers that the applicants

do not have any "arguable claims" of a violation of the provisions

invoked for these complaints.

      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.    Anita, Gustaf and Greta Johansson maintain that their right to

freedom of expression under Article 10 (Art. 10) of the Convention has

been violated in that the grandparents have been denied access to

Jessica Johansson owing to statements Anita, Gustaf and Greta Johansson

have made about the foster-mother.

      Article 10 (Art. 10) of the Convention reads as follows:

      "1.  Everyone has the right to freedom of expression.  This

      right shall include freedom to hold opinions and to receive

      and impart information and ideas without interference by

      public authority and regardless of frontiers. ...

      2.  The exercise of these freedoms, since it carries with

      it duties and responsibilities, may be subject to such

      formalities, conditions, restrictions or penalties as are

      prescribed by law and are necessary in a democratic

      society, in the interests of national security, territorial

      integrity or public safety, for the prevention of disorder

      or crime, for the protection of health or morals, for the

      protection of the reputation or rights of others, for

      preventing the disclosure of information received in

      confidence, or for maintaining the authority and

      impartiality of the judiciary."

      The applicants submit that, after the authorities' alleged

refusal to deal with Anita Johansson's complaints concerning the

conditions in the foster-home, they went to the bank where the

foster-mother worked and exercised their Convention right to freedom

of expression by telling the bank's employees and customers that the

foster-mother had abducted and maltreated Jessica.  They claim that

Gustaf and Greta Johansson were later punished for this action by the

Council, as they were denied access to Jessica.

      The Commission recalls that by decisions of 10 May and

17 June 1993 from which no appeal lay, the Council rejected a request

by Gustaf and Greta Johansson for access to their granddaughter.  As

grounds for its decision, the Council stated, inter alia, that Jessica

had not met her grandfather for eight years, that she was afraid of

both her grandparents and did not want to meet them, neither at their

respective homes nor in the foster-home, and that it was inappropriate

that Jessica meet them, as they spoke badly of the foster-mother and

opposed Jessica's continued placement in the foster-home.  The

Commission further recalls that prior to this decision the grandparents

had not had any access to Jessica, except for a period between

September 1982 and November 1984, when Greta Johansson had limited

access to her granddaughter.

      The Commission finds that the Council's decisions not to grant

Gustaf and Greta Johansson access to Jessica were taken after

considering what was in Jessica's best interests.  It has not been

shown that the decisions were taken to punish the grandparents for

statements they and Anita Johansson had made.  Accordingly, there has

been no interference with the applicants' rights as guaranteed by

Article 10 (Art. 10) 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.

6.    Anita Johansson contends that the registration by the Care

Council and consequential derogatory treatment of her by Swedish

authorities and courts constitute a violation of Article 14 in

conjunction with Article 6 (Art. 14+6) of the Convention.

      Article 14 (Art. 14) of the Convention reads as follows:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any

      ground such as sex, race, colour, language, religion,

      political or other opinion, national or social origin,

      association with a national minority, property, birth or

      other status."

      The Commission recalls that this provision has no independent

existence but prohibits discrimination only with respect to the

enjoyment of the rights and freedoms set forth in the Convention.

      The Commission finds that an examination of this complaint as it

has been submitted does not disclose any appearance of a violation of

the rights and freedoms set out in the Convention and in particular in

the Articles invoked.

      It follows that also this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

7.    Without invoking any Article of the Convention, Anita Johansson,

on behalf of herself and Jessica, further complains of the District

Court's decision to appoint a guardian ad litem for Jessica.  She

submits, inter alia, that there was no need for a guardian and that the

Court did not give her an opportunity to express her opinion on the

matter.

      The Commission recalls that the applicants have appealed against

the District Court's decision to the Court of Appeal, where the case

is presently pending.  Thus, they have not exhausted the remedies

available to them under Swedish law.  Moreover, an examination of the

case does not disclose the existence of any special circumstance which

might have absolved them from exhausting the remedies at their

disposal.

      It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber  Acting President of the Second Chamber

          (K. ROGGE)                        (G.H. THUNE)

 

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