AS TO THE ADMISSIBILITY OF
Application No. 14103/88
by Agneta LUNDBLAD
against Sweden
The European Commission of Human Rights sitting in private
on 10 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 June 1987
by Agneta LUNDBLAD against Sweden and registered on 28 August 1988
under file No. 14103/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1948 and resident
at Eskilstuna. She is on early retirement.
The applicant has a daughter, Viktoria, born in 1979.
On 3 January 1987, the Deputy Chairman of the Social Council
(socialnämnden) of Enköping decided provisionally to take Viktoria
into care pursuant to Section 6 of the 1980 Act with Special
Provisions on the Care of Young Persons (lagen med särskilda
bestämmelser om vård av unga). Viktoria was taken into care the same
day by two social workers and two policemen.
The decision of the Deputy Chairman was confirmed by the
County Administrative Court (länsrätten) of Uppsala on 19 January 1987.
On 27 February 1987 the County Administrative Court of
Stockholm ordered that Viktoria be taken into care.
On 15 May 1987 the Administrative Court of Appeal
(kammarrätten) of Stockholm rejected the applicant's appeal. It found
that the applicant was a person who was constantly on the run from
society and its different agencies. Although this did not as such
imply that she could not care for Viktoria, it appeared that the
applicant gave priority to her own needs and subjected Viktoria to
constant stress and anxiety. A certificate by a psychologist
indicated that Viktoria had psychologically been damaged to a certain
extent as a result of her living conditions. The Court found that the
insufficiencies in the applicant's care of Viktoria constituted a
serious danger to Viktoria's health and development. The Supreme
Administrative Court (regeringsrätten) refused leave to appeal on 15
June 1987.
The applicant's subsequent request that the care be terminated
was rejected by the Social Council on 16 December 1987 and her appeals
were rejected by the County Administrative Court and the
Administrative Court of Appeal.
A dispute over the applicant's access to her daughter was
determined finally by the Administrative Court of Appeal which in a
judgment of 24 August 1988 found that the applicant should have access
to Viktoria five hours per month in the foster home.
A further request by the applicant that the care be terminated
was rejected by the Social Council on 25 January 1989. Her appeals
were rejected by the County Administrative Court and the
Administrative Court of Appeal; the latter Court's judgment is dated
11 September 1989.
On 25 September 1990 the Social Council prohibited the
applicant's access to Viktoria, including telephone conversations,
pending a police investigation concerning suspected sexual abuse of
Viktoria by the applicant.
Viktoria has lived in a foster home at Bodafors since
30 March 1987.
COMPLAINTS
The applicant complains that her daughter has been kept in
public care and of the manner in which the initial care order was
carried out. She also complains of the restrictions of access during
the care. She invokes Article 8 of the Convention.
THE LAW
1. The applicant complains of violations of 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."
2. As regards the decision to take the applicant's daughter into
care, the Commission observes that it follows from the case law of the
Convention organs that the taking into care of a child constitutes an
interference with the parent's right to respect for family life
(cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A
No. 130, p. 29, para. 59). Consequently, there has been an interference
with the applicant's right to respect for her family life as
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
This interference could only be justified under Article 8
(Art. 8) if it was "in accordance with the law", had a legitimate aim
under Article 8 para. 2 (Art. 8-2) and was "necessary in a democratic
society" for the said aim.
The Commission is satisfied that the care order was "in
accordance with the law" and pursued the legitimate aim under Article
8 para. 2 (Art. 8-2) of protecting the health and rights of Viktoria
(cf. Olsson judgment, loc. cit., pp. 30-31, paras. 60-65).
As regards the question of whether the public care was
"necessary in a democratic society", the Commission recalls that this
condition requires that the interference corresponds to a pressing
social need and that it is proportionate to the legitimate aim
pursued. In determining whether an interference is "necessary" the
Commission will take into account that a margin of appreciation is
left to the Contracting States. It must determine whether the reasons
adduced to justify the interference are "relevant and sufficient"
(cf. Olsson judgment, loc. cit., pp. 31-32, paras. 67-68). When
examining these questions the Commission will take into account that
Article 8 (Art. 8) includes a procedural requirement that in
child-care cases the parents must have been sufficiently involved in
the decision-making process (see Eur. Court H.R., W. v. the United
Kingdom judgment of 8 July 1987, Series A No. 121, p. 29, para. 64).
The Commission recalls the proceedings which have taken place.
From the different court judgments it appears that the original care
order was based on the applicant's behaviour and failure to give
Viktoria sufficient care and that the courts found that the conditions
at the applicant's home were such as to jeopardise Viktoria's health
and development. It was therefore considered necessary to place her
in public care.
These reasons were, in the Commission's opinion, clearly
"relevant" for the care decision and, having regard to the margin of
appreciation of the Contracting States and the procedures followed,
the Commission also finds that the reasons were "sufficient" and that
the Swedish authorities were entitled to think that it was necessary
to take Viktoria into care.
It follows that as regards the decision to take Viktoria into
care the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. As regards the decisions concerning regulation of access to
Viktoria and the decisions concerning continued public care, the
Commission observes that the applicant has not shown that she has
appealed to the Supreme Administrative Court. She has therefore not
complied with the condition in Article 26 (Art. 26) of the Convention
as to the exhaustion of domestic remedies and this part of the
application must therefore be rejected under Article 27 para. 3
(Art. 27-3).
4. The Commission finds no appearance of any other violation of
Article 8 (Art. 8) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy