AS TO THE ADMISSIBILITY OF
Application No. 21062/92
by Kristina KRAMELIUS
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 January 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 September 1992
by Kristina KRAMELIUS against Sweden and registered on 14 December 1992
under file No. 21062/92;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 10 March 1995, the observations in reply submitted by the
applicant on 3 May 1995 and the additional observations submitted by
the Government on 16 June 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen of Polish origin, born in 1946
and resident at Huddinge near Stockholm. She is represented by
Mr. Peter Klevius, an anthropologist at Borgå, Finland.
The facts of the case, as submitted by the parties, may be
summarised as follows.
I. Particular circumstances of the case
1. Background
The applicant moved from Poland to Sweden in 1976. A daughter,
Anette, was born to her in February 1979. The applicant is a single
mother and Anette's legal custodian. Anette's father is of Iranian
origin.
In December 1988 the Pupil Welfare Committee (elevvårdsteamet)
reported Anette's behaviour in school to the Sub-Municipal
Administration (kommundelsnämnden) of Flemingsberg. The report
concluded that Anette's mental condition had been poor since she had
started school in 1986. Her behaviour had been "destructive" and the
school had repeatedly discussed her problems with the applicant, who
had considered, however, that they had been caused by the school and
society. The report also questioned the applicant's mental condition.
The report was lodged pursuant to section 71 of the 1980 Social
Services Act (socialtjänstlag 1980:620). The Sub-Municipal
Administration exercised the functions of a Social Council
(socialnämnd) such as referred to in the 1980 Act with Special
Provisions on the Care of Young Persons (lag 1980:621 med särskilda
bestämmelser om vård av unga) and subsequently in the 1990 Act with the
same name (lag 1990:52; hereinafter "the 1990 Act"). According to the
applicant, the report purported to have been lodged by the whole Pupil
Welfare Committee was produced exclusively by the school's headmaster.
In September 1990 two teachers at Anette's school again reported
her situation to the Sub-Municipal Administration (hereinafter referred
to as "the Social Council"). They considered that Anette was expressing
"morbid" ideas, e.g., in the form of essays, and that this was a call
for help. The teachers were anxious about her mental health and
suspected that Anette's problems were due to the applicant's behaviour.
For instance, the applicant had untruthfully alleged that a teacher had
called her to report that Anette had been hit by another pupil.
The applicant later lodged a criminal complaint, alleging that
staff at Anette's school had failed to intervene in order to stop the
bullying of Anette which had allegedly been caused by her parents'
origin. The applicant invoked a medical report of 5 October 1990
supporting to some extent the claim that Anette had been subjected to
physical assaults. The report concluded, for instance, that a scar in
Anette's hand could well have been caused by a nail which a fellow
pupil had allegedly tried to hammer into her hand. According to the
applicant, she had attempted to discuss the bullying with Anette's
principal teacher, who had threatened "to make things worse" for Anette
unless the applicant stopped making untruthful allegations.
Meanwhile, a social welfare officer had begun to suspect that the
applicant was mentally ill and that she might herself have inflicted
the injuries on Anette. Having contacted staff of the school, the
police decided not to pursue its investigation of the applicant's
complaint and contacted the Social Council.
2. The public care orders and their implementation
On 15 October 1990 Anette was provisionally placed in public care
by decision of the Chairman of the Social Council pursuant to section 6
of the 1990 Act. The provisional care order was based on a finding that
the applicant's behaviour was jeopardising Anette's mental health. The
applicant had rejected every attempt by social welfare officials to
meet Anette. She had not agreed to let Anette undergo a psychological
assessment in a residential home for children. Neighbours of the
applicant had also filed reports with the Social Council in which they
had expressed their concern about Anette's well-being. According to the
applicant, the provisional care order was not preceded by any
inspection of the conditions in her and Anette's home. Nor had it been
shown that the applicant was not in good mental health.
On 16 October 1990 Anette was fetched from the applicant's and
her home and placed for observation in the Geneta residential home for
children. The provisional care order was upheld by the County
Administrative Court (länsrätten) of Stockholm on 25 November 1990.
On 27 November 1990 the Social Council requested that Anette be
placed in public care pursuant to section 2 of the 1990 Act. The
applicant received a copy of the Council's investigation. She objected
to the Council's request, stating that Anette's need of care could be
satisfied with voluntary means. Anette's official counsel supported the
Council's request.
On 11 December 1990 the County Administrative Court held a
hearing and on 8 January 1991 it granted the Social Council's request.
It noted, inter alia, that when Anette had started elementary school
in 1986 her teacher and the school psychologist had found her to suffer
from mental problems. The school had provided her with support
activities such as picture therapy. The applicant had objected to the
support activities which had then been discontinued against the
school's wishes. The Social Council had twice been contacted by
Anette's school on account of Anette's behaviour. The applicant had,
however, not accepted the Council's offers to appoint a support family
and to contact the local children's and young persons' psychiatric
clinic. According to a report of 16 November 1990 submitted by Kristina
Ånstrand, an authorised psychotherapist, Anette's concept of her own
identity was "confused" and she had difficulties "perceiving reality".
She was suffering from "a strong internal pressure of unsorted
primitive aggression which was being projected on others", whom she
considered as her persecutors. She was therefore in need of long-term
care around the clock in combination with "intensive parenting" and
individual psychotherapy. The Court furthermore had regard to a report
of 16 November 1990 by Mr. Dan Fränkel, Superintendent at the
children's home. Mr. Fränkel had noted, inter alia, that Anette had
herself expressed a wish to receive help. He concluded that the
applicant categorically denied that Anette was having problems.
The County Administrative Court finally reasoned as follows:
(Translation)
"... Consistent information from [Anette's] school,
neighbours and [the children's home] has shown that she has
been suffering from mental and physical disturbances since
she started school. Psychological expertise has interpreted
these disturbances as an indication that she is in need of
qualified help. ... [The applicant] has on several
occasions ... expressed herself in a manner which might
indicate that she is suffering from paranoia. [She] has
also made statements which could be interpreted as pointing
towards suspicions that [she] is in need of mental care.
Against the background of [Anette's] need of qualified care
the applicant cannot, in the light of her [own] personal
problems, be considered as being able to meet Anette's care
needs.
...
It is true that the applicant has now consented to care
[services] such as support conversations and, moreover, to
the appointment of a contact person. There is no reason to
doubt that this consent is genuine. ... The evidence in the
case does not support the assumption that voluntary care
could be provided to the necessary extent as long as [the
applicant] has the care responsibility. Therefore, ... [the
Social Council's request] shall be granted. ..."
The applicant did not challenge the implementation of Anette's
public care in the Geneta children's home. In March 1991 Anette was
moved from the Geneta children's home to a so-called "family home"
(familjehem; hereinafter "foster home") at Lindås some 400 kilometres
away from Huddinge. The parents of that home had two children of their
own and four other children, who were also placed in public care.
According to the Government, the Social Council had wished to
avoid placing Anette in a so-called residential treatment centre. No
suitable foster home had been found in the Stockholm area and it had
been deemed therapeutically correct to implement the public care at
some distance from the applicant. The applicant's travel to visit
Anette in the "family home" was to be paid by the authorities.
According to the Government, the applicant refused to participate in
the planning of how the public care was to be implemented, e.g., as
regards the applicant's visits to the foster home. According to the
applicant, she was not informed in advance of the removal of Anette
from the Geneta children's home, nor was she given any information
about the foster home.
On the applicant's appeal the Administrative Court of Appeal
(kammarrätten) of Stockholm on 12 April 1991 upheld the care order,
considering, in essence, that the applicant lacked the necessary
understanding for Anette's care needs.
The applicant requested leave to appeal to the Supreme
Administrative Court (Regeringsrätten). Since her submissions had been
lodged out of time the Administrative Court of Appeal rejected the
appeal on 17 May 1991. On 27 September 1991 the Supreme Administrative
Court refused to restore the expired time-limit.
According to the Government, the applicant on several occasions
declined to visit the applicant in the foster home together with social
welfare officials or staff of the Geneta residential home. In
August 1991, after Anette had expressed concern about the fact that the
applicant had not visited her and while the applicant's request for a
termination of Anette's public care was pending, the applicant agreed
to one such meeting with Anette. During her visit the applicant mainly
accused officials and authorities of Anette's placement in public care.
She refused to plan any future visits to the foster home, since Anette
"was to come home very soon". In September 1991 the applicant again
visited the foster home and made Anette state that she was longing to
return home. The applicant taped this statement and told Anette to keep
quiet about it. After the applicant's visit Anette nevertheless told
the parents of the foster home as well as a social welfare officer
about the incident.
In a report of 21 October 1991 drawn up by the Social Council the
applicant was recognised as wishing the very best for Anette. She was,
however, incapable of observing Anette's needs. This was causing Anette
a dilemma, since she wished to remain loyal to the applicant but found
it difficult to tolerate her lies and accusations.
On 30 October 1991 the Social Council, noting the report of
21 October 1991, rejected the applicant's request that Anette's public
care be terminated and ordered that her care should continue to be
implemented in the foster home at Lindås.
The applicant was served with the expert report and the Council's
decision on 18 November 1991. She appealed against the Council's
decision in so far as it had refused to terminate the public care. She
argued that Anette was not in need of public care and asserted, inter
alia, that her mental state had deteriorated during her stay in a
foster home at Lindås, where she had also lost weight.
Both the Social Welfare Committee and Anette's official counsel
objected to the applicant's appeal. On 24 February 1992 it was rejected
after an oral hearing. The County Administrative Court noted that
Anette had developed favourably during her public care but found that
sufficient time had not yet passed for a termination thereof. It also
considered that the applicant did not understand and could not
therefore satisfy Anette's need for qualified care.
The applicant lodged a further appeal with the Administrative
Court of Appeal, questioning, inter alia, the accuracy of Dr.
Ånstrand's opinion of November 1990 which had been drawn up shortly
after Anette's placement in public care, i.e. when she had been "in a
state of shock".
The Social Council objected to the applicant's appeal, submitting
inter alia, that she had not allowed Anette to "adapt" to staying in
the foster home and that Anette's loss of weight was due to a healthier
diet and her having reached her teens. Anette's official counsel also
objected to a termination of the public care.
On 10 April 1992 the Administrative Court of Appeal held an oral
hearing at which it heard a further witness on the applicant's request.
This witness, a neighbour of the applicant, found no reason to question
the conditions in the applicant's and Anette's home prior to the
issuing of the care orders. The witness had met Anette once during her
placement in public care and had concluded from that meeting that she
had not been "well".
The applicant's appeal was rejected on 30 April 1992, the
Administrative Court of Appeal having found no reason to question the
expert opinion of November 1990 or the conditions in Anette's foster
home. On 3 July 1992 the Supreme Administrative Court refused the
applicant leave to appeal.
On 26 August 1992 the Social Council rejected the applicant's
further request for a termination of Anette's public care and ordered
that the care should continue to be implemented in the foster home at
Lindås. The Council based itself on a social welfare report of
14 August 1992. In her appeal to the County Administrative Court
concerning the refusal to terminate the public care the applicant
alleged, inter alia, that Anette was depressed and skinny and that she
had been the victim of physical and mental abuse. Both the Social
Council and Anette's official counsel objected to the applicant's
appeal and on 12 January 1993 it was rejected.
In her further appeal to the Administrative Court of Appeal the
applicant argued, inter alia, that Anette's public care had created a
split between them which had not existed earlier. At the applicant's
request the Administrative Court of Appeal heard two of the applicant's
neighbours as witnesses. They found no reason to question the
conditions in the applicant's and Anette's home prior to her placement
in public care.
Both the Social Council and Anette's official counsel objected
to the applicant's further appeal and on 30 March 1993 it was rejected.
The Administrative Court of Appeal considered the witnesses credible
but found that they had not had a sufficiently close contact with the
applicant and Anette. Therefore no decisive weight should be given to
their testimony.
According to the Government, the contact between the applicant
and the parents of the foster home improved in the spring and summer
of 1993. The foster parents planned to take Anette along on a visit to
a children's' home in Poland with children for whom the foster parents
were considering acting as godparents. The applicant objected to the
idea of Anette going on the trip and claimed that Anette did not wish
to go. According to the Government, this allegation was untruthful.
On 6 October 1993 the Social Council reviewed Anette's care needs
under section 13 of the 1990 Act and decided to maintain the public
care.
The applicant did not request leave to appeal to the Supreme
Administrative Court against the Administrative Court of Appeal's
judgment of 30 March 1993 but requested a re-opening of the
proceedings. This request was rejected on 1 November 1993.
According to the Government, the attempts of the social welfare
officials to hear the applicant in regard to Anette's future and care
failed, since the applicant did not show up at a meeting in
January 1994 in spite of having been approached by a social welfare
official both by telephone and mail. She had been informed by the
social authorities that she could be assisted by counsel.
In February 1994 Anette briefly stayed at the Geneta residential
home.
On 13 April 1994 the Social Council rejected the applicant's
further request for a termination of Anette's public care. It also
decided that Anette's further care needs should be examined at the
children's and young persons' psychiatric clinic at Huddinge Hospital.
She stayed there until 4 July 1994, when she was moved to Villa
Rödkinda, a treatment home in Farsta near Stockholm. This move took
place after a consultation with the applicant on 26 May 1994. According
to the applicant, Villa Rödkinda is a home for teenage drug abusers.
According to the Government, Anette stated categorically during
this investigation that she did not wish to live with the applicant.
The applicant regularly attended meetings with staff in charge of
Anette's examination during the first four weeks but later declined to
come to any further meetings. She started accusing the hospital staff
of acting partially, i.e. on behalf of the social welfare authority.
Meanwhile, Anette visited the applicant in their home on several
occasions.
The applicant appealed against the Social Council's decision of
13 April 1994 in so far as it concerned its refusal to terminate
Anette's public care. The applicant stated that she would consent to
Anette's treatment at Huddinge Hospital, if only the public care would
be terminated. The Social Council opposed a termination of the care,
inter alia since the applicant might later withdraw her consent to the
care planned for Anette. Anette herself, now fifteen years of age, also
opposed a termination of her public care.
On 6 June 1994 Dr. Frank Ståhl, Chief Physician, Annika Elinder,
a psychologist, and Dr. Clara Gumpert, Assistant Physician, submitted
a report based on the examination of Anette's care needs as carried out
at Huddinge Hospital. They concluded that the applicant had
difficulties in perceiving Anette's emotional needs and mental problems
which were of such a magnitude that she would remain dependent on the
resources of a treatment home for a long time. The report was served
on the applicant on 7 June 1994.
After an oral hearing the County Administrative Court on
16 June 1994 rejected the applicant's appeal against the Social
Council's decision of 13 April 1994. The Court had regard, inter alia,
to the expert report of 6 June 1994.
On 22 September 1994 the Administrative Court of Appeal rejected
the applicant's further appeal which both the Social Council and
Anette's official counsel had objected to. The Court considered, inter
alia, that the necessary care could not be afforded to Anette with the
applicant's consent. Leave to appeal to the Supreme Administrative
Court was later refused.
In September 1994 Anette lodged a complaint with the police,
accusing the foster father of having sexually harassed her in
February 1994. The investigation was later closed.
In October 1994 Anette was moved to Magelungen treatment centre
in Stockholm.
3. Anette's schooling
According to the Government, a period of instability began in
Anette's life in the autumn of 1993. She started testing the limits in
the foster home. She also began to harass some of her teachers. In
January 1994 the foster parents no longer felt capable of providing the
necessary assistance and informed the Social Council accordingly. In
February 1994 they reported that Anette's school had decided not to
allow her to attend classes for the rest of a week. Anette had posted
notes with pejorative statements regarding a particular teacher. She
had repeatedly forced her way into the teachers' room. She would speak
incoherently, scream and curse. A School Welfare Officer had been
assigned to deal with Anette's problems, but this attempt had been in
vain. A new special teacher had been giving Anette lessons so as to
avoid contact between her and the teacher whom she had been harassing.
According to the Government, the foster parents also reported that
Anette had been aggressive and violent in the foster home, breaking a
window. It was then decided that Anette should receive lessons in the
foster home. Plans were also made to send Anette to Huddinge Hospital
near Stockholm for a psychological examination.
According to the Government, Anette received one hour of
individual schooling per day during her stay at Villa Rödkinda. After
her move to Magelungen treatment centre it was intended to provide
ordinary schooling in the ninth grade. Having attended school for one
day, Anette refused to go back. According to the Government, the
treatment centre was unable to provide schooling on its own premises.
According to an opinion submitted by Dr. Ståhl on 28 November 1994
Anette's need of care had, for the time being, to be given priority
over her need of education. It furthermore transpires from a report of
Dr. Ståhl of 12 June 1995 that Anette has consistently and as recently
as 6 June 1995 refused to receive education in whatever form offered
to her.
4. Other remedies resorted to by the applicant
In January 1990 the applicant complained to the Parliamentary
Ombudsmen (Riksdagens justitieombudsmän) about alleged cooperation
problems between her and the schools where Anette had been a pupil. In
the course of the investigation these allegations were refuted by the
teaching staff. On 22 March 1990 one of the Ombudsmen found, inter
alia, that the officials who had, in 1988, reported Anette's behaviour
to the Social Council had been acting in compliance with the law.
In response to the applicant's further petition one of the
Ombudsmen, on 28 April 1992, found no reason to criticise the Social
Council in regard to Anette's placement in public care. On 8 June 1994
a further petition by the applicant was considered as being partly
time-barred. As to the rest no reason was found for criticising the
Social Council's actions.
In response to the applicant's petitions the County
Administrative Board (länsstyrelsen) of Stockholm on 17 September 1991,
14 May and 24 July 1992 as well as on 24 March 1994 found no reason to
criticise the manner in which Anette's case had been handled.
II. Relevant domestic law
1. Public care orders
According to the 1980 Act Social Services Act, any person who
learns that a minor is being treated in a manner which could jeopardise
his or her health or development should report this to the Social
Council which shall immediately start an investigation (sections 50 and
71).
According to the 1990 Act, public care of a young person shall
be provided if there is a particular reason to believe that his or her
health or development may be jeopardised because of insufficient care
or any other circumstance in his or her home and if it can be assumed
that the necessary care cannot be provided with the consent of his or
her custodian or custodians (sections 1 and 2).
The Social Council, its Chairman or another authorised member of
the Council may decide provisionally to place a young person in public
care if it is likely that he or she is in need of such care and if a
court decision in the matter cannot be awaited (section 6, subsections
1 and 2).
2. Implementation of public care
The Social Council is to decide how public care is to be provided
and where the young person is to reside. It may consent to the young
person residing in his or her own home, if this may be presumed to be
the most appropriate means of implementing the care. The public care
shall, however, always commence away from his or her home (sections 10
and 11 of the 1990 Act).
Before ordering that public care is to be implemented in a foster
home the Social Council must investigate the conditions therein
(section 25). The Council must carefully monitor the young person's
development in the foster home by regularly visiting it and by meeting
with the person (section 39 of the 1981 Social Services Ordinance
(socialtjänstförordning 1981:750)).
The Social Council shall carefully supervise the implementation
of the public care. If the care order has been issued under section 2,
the Social Council shall at least every six months review the legal
conditions for maintaining it (section 13, subsections 1 and 2). If
public care is no longer considered necessary, it shall be revoked. A
public care order pursuant to section 2 shall be revoked when the young
person reaches the age of eighteen (section 21, subsections 1
and 2).
The Social Council is responsible for accommodating as far as
possible the young person's need of contact with his parents, custodian
or custodians. If it is necessary in order to achieve the public care
purposes, the Social Council may decide how the right of access to the
young person shall be exercised by a parent or custodian and decide
that the young person's whereabouts should not be revealed to a parent
or custodian. The Social Council shall at least once every three months
reconsider whether such a decision remains necessary (section 14).
3. Appeals and supervision
The Social Council's decisions may be appealed to the County
Administrative Court, if, inter alia, the Council has decided where the
care of the young person is to begin; if it has decided on the removal
of the young person from the home where he or she is living; if it has
decided on the continuation of care in accordance with the Act; or if
it has decided on access in accordance with section 14 (section 41(1-3)
of the 1990 Act). According to the 1971 Administrative Procedure Act
(förvaltningsprocesslag 1971:291), the decisions of the County
Administrative Court may be appealed to the Administrative Court of
Appeal. With leave to appeal, a judgment of the Administrative Court
of Appeal may be challenged before the Supreme Administrative Court
(sections 33 and 35).
The County Administrative Boards (länsstyrelserna) and the
Parliamentary Ombudsmen are responsible for the supervision of the
social authorities.
4. School legislation
The compulsory school attendance is governed by the 1985
Educational Act (skollag 1985:1100) and corresponds to a right to a
nine-year long education provided by the public school system (chapter
3, section 1). The competent municipality is responsible for ensuring
that children who do not attend public school receive education
otherwise (section 13). Disciplinary action affecting the possibility
for the pupil to attend school may only be used to a limited extent
(section 11).
According to the 1988 Compulsory Education Ordinance (grundskole-
förordning 1988:655), special education may be provided for children
of school age with specific needs (chapter 5, section 17). Such
education shall, as far as possible, correspond to the education in
which the child is unable to participate. It must, however, be provided
only if the child's doctor has consented thereto.
The National Agency for Education (statens skolverk) supervises
the public school system and may examine complaints relating to its
implementation (section 4 of the relevant 1991 Ordinance (1991: 1121).
The so-called pupil welfare committees are composed of the
school's headmaster, teachers, the school's physician, its nurse as
well as its welfare officer.
COMPLAINTS
1. The applicant complains that Anette's public care has not been
sufficiently justified. The real reason for her placement in such care
was allegedly the applicant's objections to the lax attitude of
Anette's teachers in regard to the bullying which occurred in her
school. The reports from Anette's school to the Social Council were "an
act of revenge" on the part of some of her teachers. The applicant
challenges the experts' findings that Anette was suffering from mental
disturbances at the time of her placement in public care and that she
is currently still in need of such care. Finally, certain
investigations by the social authorities concerning Anette's care needs
have allegedly not been communicated to the applicant. She invokes
Articles 3, 5, 6, 8 and 13 of the Convention.
2. The applicant complains about the particular manner in which the
provisional care order was enforced in October 1990. Allegedly, social
officials broke into a toilet in the applicant's and Anette's home and
did not inform the applicant of the reasons for the provisional care
order. The applicant again invokes Articles 3, 5, 6, 8 and 13 of the
Convention.
3. The applicant also complains about the implementation of Anette's
public care. The Social Council refused to allow the implementation to
take place in her and the applicant's home. The care was partly
implemented at a considerable distance from her and the applicant's
home. Anette's foster family at Lindås had already received several
other children placed in public care and also had two children of their
own. Anette had to stay in a very small room. The foster parents
allegedly interfered with the applicant's and Anette's correspondence
and telephone conversations. While Anette was placed in the foster home
the applicant was allowed to see her only on rare occasions and always
in the presence of a social welfare official or one of the foster
parents. She was not always informed in advance of the duration of the
meetings. During certain meetings she was not allowed to speak to
Anette or show her physical affection. The applicant again invokes
Articles 3, 5, 6, 8 and 13 of the Convention.
4. In her submissions of 17 October and 18 November 1994 the
applicant also complains that Anette is not being provided with any
effective possibility of completing her compulsory education. In this
respect the applicant invokes no particular provision of the Convention
or its Protocols.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 September 1992 and
registered on 14 December 1992.
On 30 November 1994 the Commission (Second Chamber) decided to
communicate part of the application to the respondent Government,
pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The
Government were requested to submit written observations in regard to
the complaints under Articles 8 and 13 of the Convention as well as
Article 2 of Protocol No. 1 with the exception of the complaint
concerning the manner in which the provisional care order was enforced.
The Government's written observations were submitted on
10 March 1995 after an extension of the time-limit fixed for that
purpose. The applicant replied on 3 May 1995. Additional observations
were submitted by the Government on 16 June 1995.
THE LAW
1. The applicant complains that neither the provisional care order
of 15 October 1990 nor the care order of 8 January 1991 was based on
sufficient reasons. In any event, there are no longer any reasons for
maintaining her daughter Anette's public care.
The Government submit that domestic remedies have not been
exhausted, since the applicant did not appeal against the provisional
care order. Nor did she properly seek leave to appeal against the
judgment of the Administrative Court of Appeal on 12 April 1991
upholding the care order of 8 January 1991. Alternatively, in so far
as the definitive care order is concerned, the complaint has been
lodged belatedly, even if the six months' time-limit prescribed by
Article 26 (Art. 26) of the Convention were to be calculated from the
Supreme Administrative Court's decision of 27 September 1991 not to
restore the time-limit for the applicant's request for leave to appeal.
Finally, the applicant did not challenge the decisions of 26 August
1992 and 6 October 1993 not to terminate Anette's care.
The Government concede, however, that many circumstances of
relevance to the initial care order have later been examined by the
administrative courts dealing with the applicant's requests for a
termination of Anette's public care. The Commission should therefore
consider the complaint in the light of the entire proceedings up to and
including the Supreme Administrative Court's refusal of leave to appeal
on 3 July 1992. Should the Commission take this approach, the
Government argue that the complaint is nevertheless manifestly
ill-founded. Anette's placement in public care and the maintaining of
that care has been based on the 1990 Act and has served the legitimate
aim of protecting the interests and welfare of herself.
As to the necessity of the public care order, the Government
recall that the Parliamentary Ombudsman found no reason to criticise
the report of the Pupil Welfare Committee of 1988. The Government
further refer to the findings of the Social Council and the expert
reports of 16 November 1990 from which it became clear that Anette was
in need of long-term treatment for her problems. Since the applicant
failed to comprehend those problems and considering the risk that
Anette's mental health and development would otherwise suffer,
voluntary care was out of the question. These reasons were relevant and
sufficient and responded to a pressing social need. Moreover, hearings
were held before administrative courts on two levels.
As to the necessity of maintaining Anette's public care, the
Government refer to the findings of the Social Council and the
administrative courts as well as the expert report of 6 June 1994
indicating that Anette remained in need of treatment. Furthermore, the
applicant has persistently denied Anette's problems. Finally, Anette's
official counsel has consistently opposed a termination of the public
care.
The Government admit that the applicant's general attitude in the
matter has made her participation in the decision-making process
difficult. She has nevertheless been duly informed of every measure
taken in regard to Anette's public care and her views have been taken
into account to the extent possible, also bearing in mind Anette's
welfare. Throughout the proceedings the applicant has been represented
by official counsel. Both the applicant's requests that an "impartial
person" should be present during meetings and her requests that
witnesses should be heard before the courts have been granted. Case
notes show, however, that on several occasions, when the social
authorities have attempted to meet her and her representative, neither
of them attended the proposed meetings.
The applicant contends that the care needs of Anette which she
has been considered incapable of comprehending have never been
specified by the authorities. She questions the quality of the initial
examination of Anette's care needs in November 1990 and asserts that
the real reason for the initial care order was that she was seen as a
"troublemaker" after having reported the bullying in Anette's school.
Although the Government claim that the reports by the Pupil Welfare
Committee of Anette's school to the Social Council were initiated by
her teachers, the applicant contends that the reports are unknown to
them and that they were produced by the headmaster wishing to protect
the school's reputation. Moreover, the applicant's problems with the
Swedish language has led the social welfare authorities to include in
their reports absurd statements which she is said to have made and
which she has not been allowed to correct.
The applicant furthermore recalls that Anette's placement in
public care was considered necessary because it was presumed that
continued care in the applicant's home could jeopardise Anette's
development. However, the qualified care and support which the
authorities considered Anette to be in need of has never been provided.
On the contrary, her violent behaviour started only as a result of her
placement in public care, as did her problems in school. Her foster
father has sexually abused her and threatened her at gunpoint, she has
been prevented from attending school and she has been placed in a
treatment centre where drugs are common and which does not provide the
peaceful environment which the authorities have considered her to be
in need of. The applicant also refutes the Government's statement that
Anette's development was continuously being monitored by a psychologist
at the Huddinge Hospital. Her only therapy has been provided by a
non-authorised psychologist accused of violence against another young
person placed in a treatment centre.
The applicant finally refutes the Government's statement that
Anette has not wished to see her. On the contrary, she wants to spend
as much as time as possible with the applicant and has continuously
been corresponding with her. Occasionally, she has been spending up to
eight hours a day with the applicant and this situation is continuing.
Anette has furthermore stated to her that she has been dissuaded by
social welfare officials from expressing her wish to move back home and
return to school; otherwise they would see to it that she would be
placed in psychiatric care.
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken. It considers, however, that the
public care of Anette can arguably be considered as a situation which
started on 15 October 1990 and is still continuing. In this case it can
be left open whether the applicant has complied with the six months'
time-limit prescribed by Article 26 (Art. 26) in respect of the various
aspects of the present complaint. Nor does the Commission need to
determine whether the applicant has complied with the exhaustion
requirement prescribed by Article 26 (Art. 26), since, even if this
were the case, the complaint is inadmissible for the following reasons.
The Commission considers that the complaint falls to be examined
under Article 8 (Art. 8) of the Convention which reads, in so far as
it is relevant, as follows:
"1. Everyone has the right to respect for his ... family
life, ...
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 placement of Anette in public care
constituted an interference with the applicant's right to respect for
her family life. In order to be justified under the terms of Article 8
para. 2 (Art. 8-2) such an interference must satisfy three conditions:
it must be "in accordance with the law", it must pursue one or more of
the legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and it
must be "necessary in a democratic society" for that or those
legitimate aims. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, requires that
it be proportionate to the legitimate aim pursued. In determining
whether an interference is "necessary in a democratic society", the
Commission will also take into account that a margin of appreciation
is left to the Contracting States, but its review is not limited to
ascertaining whether a respondent State exercised its discretion
reasonably, carefully and in good faith. Furthermore, in exercising its
supervisory function, the Commission cannot confine itself to
considering the impugned 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 were "relevant
and sufficient" (see Eur. Court H.R., Olsson judgment of 24 March 1988,
Series A no. 130, pp. 31-32, paras. 67-68). Finally, certain procedural
requirements are also implicit in Article 8 (Art. 8) to the extent that
in child care matters the parents must have been involved in the
decision-making process, seen as a whole, to a degree sufficient to
provide them with the requisite protection of their interests. This
requirement implies that the parents should be sufficiently informed
of the outcome of investigations carried out by the authorities
(cf., e.g., Eur. Court H.R., W. v. the United Kingdom judgment of
8 July 1987, Series A no. 121, pp. 28-29, paras. 63-65; cf. also the
above-mentioned Olsson judgment, p. 33, para. 71).
In the Commission's view the 1990 Act which was applied in this
case was clearly designed to protect young persons and there is nothing
to suggest that it was applied for any other purpose. The interference
in question was intended to safeguard the development of the
applicant's daughter Anette and therefore served the legitimate aim of
protecting her health and rights.
As regards the necessity of the various care orders, the
Commission observes that Anette's need of public care has been
carefully and repeatedly examined by Swedish administrative courts. The
purpose of placing Anette in such care has essentially been to provide
her with long-term treatment outside her home, which the applicant has
not been willing to accept. The Commission considers that this reason
is clearly relevant and sufficient to justify Anette's placement in
public care and the decisions to maintain that care.
The Commission finally finds no indication that the applicant has
not been sufficiently informed of the investigations concluding that
Anette is still in need of public care. Nor can it find that she has
at any stage of the domestic proceedings been prevented from presenting
the views which would in her opinion be of importance for the
examination of the care order and the subsequent maintaining of that
order. In these circumstances the Commission finds that the applicant
was sufficiently involved in the decision-making process, seen as a
whole, so as to provide her with the requisite protection of her
interests.
Taking all the circumstances of the case into account and having
regard to the State's margin of appreciation, the Commission is
satisfied that the Swedish authorities have reasonably been entitled
to consider Anette's placement in public care as necessary so as to
achieve the above-mentioned legitimate aims. The Commission therefore
finds no appearance of any violation of Article 8 (Art. 8) in this
respect.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has also complained about the particular manner in
which the provisional care order was enforced in October 1990.
The Commission notes, however, that the present complaint was
introduced on 29 September 1992, that is more than six months later.
An examination of the complaint does not disclose the existence of any
special circumstances which might have interrupted or suspended the
running of the six months' period prescribed by Article 26 (Art. 26).
Accordingly, this complaint has been lodged belatedly.
It follows that this complaint must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
3. The applicant also complains about the implementation of Anette's
public care.
The Government submit that domestic remedies have not been
exhausted, since the applicant never appealed against the decisions to
place Anette in the Geneta children's home or in the foster home at
Lindås. Nor did the applicant challenge Anette's conditions in the
last-mentioned home by requesting that she be moved to another home.
In the alternative, the Government submit that this complaint is
manifestly ill-founded. They concede that the foster home at Lindås is
situated about 400 kilometres from the applicant's home. However, the
Social Council had wished to avoid placing Anette in a treatment centre
and no suitable foster home had been found in the Stockholm area. It
had also been deemed therapeutically correct to implement Anette's
public care at some distance from the applicant. The applicant's
travels to visit Anette in the foster home were paid by the
authorities. Referring to the findings of the administrative courts,
the Government, moreover, refute the applicant's allegation that the
conditions in that home were unsatisfactory. Reference is also made to
the County Administrative Board's and the Parliamentary Ombudsman's
decisions in which no reason was found to criticise the handling of the
case by the authorities.
The Government furthermore submit that during Anette's stay in
the foster home at Lindås continuous contact was kept with the Huddinge
Hospital. A plan to have Anette undergo special psychological care
nevertheless had to be postponed in view of her strong opposition
thereto. The experiences of the Magelungen treatment centre have been
very good.
The Government finally underline that the social authorities
repeatedly attempted to bring about meetings between the applicant and
Anette. However, bearing in mind the care which Anette was receiving,
she was not forced by the authorities to see the applicant. On several
occasions the applicant herself declined to visit Anette after having
been given such an opportunity. Finally, on several occasions the
authorities tried to draw up a plan together with the applicant,
indicating when and how the contacts between her and Anette were to
take place. The applicant refused to co-operate. Anette suffered from
the applicant's refusal to visit her and when she eventually did, in
April 1991, it was a great disappointment to Anette. The Government
finally submit that lately there has been a certain increase of
contacts between Anette and the applicant.
The applicant questions, in particular, the long distance between
her home and Anette's foster home at Lindås. During the applicant's
visit they were not allowed to sit next to each other and talk to each
other in private. This was the real reason for Anette's disappointment
after the meeting.
The Commission considers that it need not determine whether
domestic remedies have been exhausted in accordance with Article 26
(Art. 26) of the Convention in respect of this complaint, since the
complaint is in any event inadmissible for the following reasons.
(a) The Commission recalls that, in so far as a public care order
does not aim at the adoption of the child concerned, any measure of
implementation of a public care order shall be consistent with the
ultimate aim of reuniting the child and the family. The prospect of a
successful reunification will necessarily be weakened if impediments
are placed in the way of their having easy and regular access to each
other (see the above-mentioned Olsson judgment, pp. 36-37, para. 81).
Whether or not a parent shows an uncooperative attitude towards the
social welfare authorities is not necessarily decisive (cf., ibid.,
p. 37, para. 83).
The Commission observes that Anette's public care has been
implemented in several different environments. It finds no indication
that the implementation has not been "in accordance with the law" nor
can it find that it lacked the aims which the Commission has previously
found to have justified Anette's placement in public care. As regards
the necessity of the implementation, the Commission does not find it
established that the quality of the care given to Anette in the various
environments has not been satisfactory. It observes, in particular,
that in so far as the care was implemented in the foster home at
Lindås, efforts were made so as not to create any insurmountable
practical obstacles to meetings between the applicant and Anette.
In these circumstances the Commission cannot find that the
implementation of Anette's public care has not been supported by
sufficient reasons justifying them as being proportionate to the
legitimate aims pursued. Accordingly, the implementation has been
"necessary in a democratic society" in pursuance of those aims and
there is no appearance of any violation of Article 8 (Art. 8) on this
point either.
(b) The Commission furthermore finds no indication that the applicant
has not had at her disposal an effective remedy within the meaning of
Article 13 (Art. 13) of the Convention for the purpose of challenging
the implementation of Anette's public care.
It follows that this complaint must as a whole also be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
4. In her submissions of 17 October and 18 November 1994 the
applicant finally complains that her daughter Anette is not being
provided with any effective possibility of completing her compulsory
education.
The Government again submit that domestic remedies have not been
exhausted, since the applicant did not complain to the National Agency
for Education. Moreover, considering the conflict of interests between
the applicant and Anette, the Government question whether the applicant
can represent Anette, now sixteen years old, in this matter before the
Commission.
In the alternative, the Government argue that this complaint is
also manifestly ill-founded. Anette's problems in school which began
to escalate in 1993 were due to a number of factors. Her behaviour in
school made learning difficult for everyone in her class. Despite the
School Welfare Officer's attempts to support her the situation turned
into a crisis. The decision not to allow Anette to attend lessons at
school which meant that she should instead receive individual lessons
in her "family home" was reasonably necessitated by her mental
condition and was not a disciplinary measure. She also received
individual lessons at Villa Rödkinda up to October 1994. In April 1995
plans were made with a view to enabling her to complete her ninth grade
by receiving one individual lesson per day at the Magelungen treatment
centre. She refused to cooperate. The Government furthermore emphasise
that according to expert reports priority now has to be given to
Anette's care needs. Summing up, the Government concede that, although
Anette has been temporarily prevented from attending classes in school,
she has not been deprived of schooling to a larger extent than
necessary in her case. The authorities have done their utmost to
provide her with schooling, bearing in mind her condition and
well-being. The social authorities still intend to provide her with the
education corresponding to the compulsory nine-year long education.
The Commission considers that it can leave open the question
whether the applicant, Anette's legal custodian, can represent Anette
before the Commission as regards this particular complaint. Nor does
the Commission need to determine whether domestic remedies have been
exhausted in accordance with Article 26 (Art. 26) of the Convention,
since the complaint is in any case inadmissible for the following
reasons.
The Commission considers that this complaint falls to be examined
under Article 2 of Protocol No. 1 (P1-2) to the Convention which, in
so far as it is relevant, reads as follows:
"No person shall be denied the right to education. ..."
The Commission recalls that Article 2 of Protocol No. 1
(Art. P1-2) is concerned primarily with elementary education (e.g., No.
7671/76 et al., Dec. 19.5.77, D.R. 9 p. 185). It guarantees a "right"
of "access" to the educational establishments existing at a given time
(No. 11533/85, Dec. 6.3.87, D.R. 51 p. 125). In the Commission's view
it cannot therefore be interpreted so as to impose an absolute
obligation on a Contracting State to provide schooling for someone who
clearly does not wish to make use of this right. Given the
circumstances in the present case, the Commission would therefore agree
with the Government that, for the time being, the necessary measures
have been taken by the Contracting State so as to ensure Anette's right
to education within the meaning of Article 2 of Protocol No. 1.
(P1-2) In these circumstances the Commission finds no appearance of any
violation of this provision.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to Acting President of
the Second Chamber the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy