AS TO THE ADMISSIBILITY OF
Application No. 21111/92
by Ingegerd NILSSON
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 30 June 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 August 1992 by
Mrs. Ingegerd Nilsson against Sweden and registered on 17 December 1992
under file No. 21111/92;
Having regard to the information provided by the Government on
1 February 1993 and the applicant's comments in reply in February and
March 1993;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen born in 1943 and resident at
Malmö. She is a teacher by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
On 18 January 1989 the Western Social District Council (västra
socialnämnden) of the municipality of Malmö decided to place the
applicant's son Jonas, born in 1980, in public care in accordance with
Section 1, subsection 1 and subsection 2, no. 1 as well as Section 6
of the 1980 Act on the Care of Young Persons (lag 1980:621 med
särskilda bestämmelser om vård av unga, hereinafter "the 1980 Act").
The care order was issued following an incident during which the
applicant had behaved in a violent and confused manner against Jonas'
teacher.
The decision was upheld by the County Administrative Court
(länsrätten) of Malmöhus County and subsequently upheld by the
Administrative Court of Appeal (kammarrätten) of Gothenburg. Leave to
appeal was refused by the Supreme Administrative Court
(regeringsrätten).
Regard was had to an opinion of 10 February 1989 submitted by Dr.
G.T., Deputy Senior Medical Officer, and Dr. H.H., a psychologist, at
the request of the Social District Council and in which the following
was stated :
(translation from Swedish)
"... Jonas is the only child of [the applicant]. The parents
separated in connection with [his] birth ... [Jonas'] father has
founded a new family ..., following which [the applicant] has
denied Jonas the right to meet him. She has ... developed signs
of a chronic paranoid psychosis ... She has never worked since
the birth of Jonas, but lived exclusively for him. Her social
network has slowly diminished and now mainly consists of her
parents ... In her medical records [it is said] that her
personality started to change long before the birth of Jonas ...
[She] has been considered by, among others, [teachers and other
parents in Jonas'] pre-school and school as being very divergent
(Note: Swe. "avvikande"). She ... still accompanies Jonas to
school. Previously she would not ... allow him to have his meals
in the school cafeteria ... He has never ... been allowed to play
with other children ... An attempt to have Jonas undergo
[psychiatric] treatment in 1986 did not succeed, as [the
applicant] did not comply with the ... plan.
...
What caused parents and teachers at [Jonas's] school to file a
report was [his] strongly divergent, aggressive behaviour against
his fellow-pupils. He would pinch them with pencils and run after
them with pieces of glass in his hands, threatening to cut their
throats. [He] expressed fantasies to the staff, such as to murder
and drown children or break their arms ... In particular, [small]
children's inability to let things alone and their curiosity
provokes and irritates [him], as he needs to have rules and
order.
Jonas shows very little emotions ... He does not play with other
children ... He only reacts in aggressive ways ... e.g. by making
racist remarks ...
Following the taking into public care of Jonas certain changes
have been seen in his relations with others. He does not behave
as aggressively at school ... His fear of dirt or bacteria has
decreased considerably ...
Lately he has lost some weight [and] seems somewhat sad and
quiet. [This] is, in the circumstances, an adequate reaction.
...
[A parent's] mental illness cannot always be said to influence
a child negatively ... [M]any children develop quite normally ..
Certain circumstances, however, strongly increase the risk of a
negative development.
...[A]bove all, the degree of the personality disturbance is
decisive for the parents' ability to care for their children.
Another important factor is whether the parent is aware of [his
or her] illness and [whether] the children are being affected by
[his or her] morbid thoughts.
Another important factor is the social network of the family.
Children who do well live in families which have contacts with
outside persons who can assist when necessary ...
... In the present case there are ... serious indications of a
risk [of a negative development] ... . Jonas and [the applicant]
have lived a very isolated life. [The applicant] has been unable
to cooperate with the school and the school health care ... Much
seems to indicate that [she] has a morbid reality perception
which she is passing on to [Jonas]. She has cut off [his] contact
with his biological father ... [a]nd does not allow [him] to
create contacts with adults outside the family. She has not
understood the importance of the fact that Jonas should be
allowed to play ... freely. She has kept him inside whenever he
has been free ...
On the other hand, she well understands Jonas' physical needs and
his need of linguistic stimulation ... It is clear that [she] is
very fond of Jonas ... In her opinion she does everything in
[his] interest.
[The applicant] has now, for the first time, been undergoing
psychiatric treatment and medication [to this effect] ...
[In conclusion,] [the applicant] is suffering from a chronical
paranoid psychosis alternatively a serious personality
disturbance with paranoid features. As a result she has been
unable to satisfy [Jonas'] needs adequately ... [D]ue to her
inability to have normal social relations Jonas has developed a
serious behavioural disturbance including an inability to relate
to other children as well as an aggressive [and occasionally
dangerous] behaviour. It is too early to determine whether ...
the disturbance is caused by ... Jonas' adaptation to isolation
and [the applicant's] reality perception or whether it is based
on a personality disturbance. A fresh assessment subsequent to
his placement in an environment supporting his need of contacts
with adults and friends could clarify this.
[The applicant's] ability to change is also difficult to assess.
[A positive sign is] that her state of health seems to have
improved to some extent as a result of her medication and
treatment ... [A negative sign] is her lack of recognition of her
illness and her [simulation capacity] as a result of which one
cannot fully trust that a change in her behaviour will occur ...
...
In view of the above we find that there are very strong reasons
for applying [the 1980 Act] even without [the applicant's]
consent."
In a further opinion of 8 May 1989 submitted to the
Administrative Court of Appeal by Dr. V.R., Senior Medical Officer at
the psychiatric clinic of the General Hospital of Malmö, at the request
of the Social District Council, the following was stated :
(translation from Swedish)
"[Jonas] and [the applicant] were admitted to ... [our] clinic
for child and youth psychiatry from 21 March to 5 April 1989.
This opinion is based on observations of Jonas and [the
applicant] in everyday social intercourse on the ward and on
interviews with [the applicant].
Jonas' contact with [the applicant] is characterised by a lack
of emotional attachment. The contact is superficial and
intellectual. Jonas' mental development is seriously threatened.
He was showing clear difficulties in his contacts with people ...
In contacts with other children [he] was somewhat directed by
jealousy. [The applicant] could, in these situations, not support
him, [n]or could she [prevent] his [occasional] destructive
behaviour. Despite support from the staff [the applicant] was ...
totally helpless ... .
At this stage it is not possible to assess with certainty what
the disturbances in Jonas' personality are caused by. [His]
difficulties seem to a large extent to stem from [the
applicant's] lack of ability to enter into emotions ... and the
fact that she has not allowed him to have normal contacts with
other adults and children. In order to give Jonas a possibility
to develop in a positive way he is in absolute need of individual
psychotherapeutic [treatment] for a longer period of time. In
view of his age this treatment must start immediately.
During [his] stay on the ward Jonas showed, [when left alone with
another adult], an ability to concentrate and use his curiosity
and imagination. This supports the theory that [he] is able to
absorb psychotherapeutic treatment. This requires that he has a
stable home environment with adults who understand and support
him ... Until now [the applicant] has not been able to support
[him] in his need to have contacts outside his home. On the
contrary, she has prevented him from having normal contacts ...
[S]he would [therefore] probably not be able to support him
emotionally during [his] treatment. [T]his could put Jonas in an
unacceptable loyalty conflict.
...
In view of the above .... Jonas should continue to receive care
under [the 1980 Act]."
Initially Jonas was placed in the children's home of Enebacken.
On 1 February 1991 he was placed in the children's home of Lund.
On 14 November 1991 the Social District Council in accordance
with Section 11 of the 1990 Act on the Care of Young Persons (lag
1990:52 med särskilda bestämmelser om vård av unga, hereinafter "the
1990 Act") decided to transfer Jonas from the children's home of Lund
to a foster home at Helsingborg, some 50 kilometres from Malmö.
The applicant appealed, requesting that Jonas' further care under
the 1990 Act be implemented in her home, alternatively that Jonas not
be transferred to the particular foster home at issue.
On 18 February 1992 the County Administrative Court held a
hearing, where the applicant referred to an alleged statement by Jonas,
then 12 years old, that he wished to live with her and attend his old
school. On 5 February 1992 he had allegedly asked how much longer he
would have to stay with his foster parents. He had seemed anxious.
Allegedly he had feared to tell the staff at the children's home and
his official counsel the truth and therefore said that he wished to
stay with his foster parents. He had seemed sad, while previously he
had been in a happy mood. He had been transferred very abruptly from
the children's home. The applicant had visited the foster home in
Jonas' absence and had seen alcohol bottles in several places. Jonas'
room had been isolated from the other rooms. The foster parents seemed
to project the loss of their late son on Jonas and had had Jonas' hair
cut in the same way as his. Thus, the particular foster parents chosen
were not suitable. Instead Jonas could have been placed in a foster
home at Lund or Malmö. This would have allowed him to attend his old
school and meet the applicant more often.
The Social District Council argued that Jonas enjoyed staying
with his foster parents. It would be easy for the applicant to see
Jonas in the foster home. Meetings could also be arranged in the
children's home of Lund. During Jonas' public care there had been no
satisfactory social intercourse between him and the applicant. Jonas
did not wish to go back to the applicant. When stating this he had
shown no signs of fear. Implementation of the care in the applicant's
home was therefore out of the question. Further efforts would, however,
be made in order to create social intercourse between the applicant and
Jonas.
Jonas' official counsel supported the Social District Council's
view and added, inter alia, that while staying in the foster home Jonas
had expressed a wish that the applicant come and visit him there. Four
such visits had been planned, but the applicant had never attended any
of them.
On 24 February 1992 the County Administrative Court rejected the
applicant's appeal, stating the following :
(translation from Swedish)
"It appears in the case that [Jonas] ... has shown signs of
mental and social disturbances. He is therefore in need of
special care. As the circumstances warranting his placement [in
public care under the 1990 Act] partly continue ... and as it has
not been possible to arrange longer meetings between Jonas and
[the applicant] during his stay in the children's home[s], his
further care [under the 1990 Act] cannot take place in [the
applicant's] home. Having regard to [Jonas'] development and
[his] need to live in as normal circumstances as possible, the
[Court] shares the Social District Council's assessment that
Jonas' need of care can, at present, best be secured by his
placement in a foster home. Jonas' need of security and care
seems to be well satisfied in the foster home at issue. [T]he
geographical distance would not seem to create any real obstacle
to social intercourse between Jonas and [the applicant].
..."
The applicant appealed, arguing that she could not be blamed for
the lack of longer meetings between her and Jonas. Until March 1992 she
had very rarely been given the possibility to meet Jonas alone.
Following his transfer to the children's home at Lund he had not been
allowed to visit her. As from February 1990 she had no longer needed
to see a doctor for mental problems. The circumstances previously
warranting the public care of Jonas therefore no longer existed. She
further accepted to cooperate with the social authorities if Jonas were
allowed to move back home.
On 7 May 1992 the Administrative Court of Appeal upheld the
County Administrative Court's decision.
Leave to appeal was refused by the Supreme Administrative Court
on 2 July 1992.
In the proceedings before the administrative courts the applicant
was represented by official counsel.
The applicant has submitted an opinion of 6 April 1989 by Dr.
A.S., a psychiatrist at the psychiatric clinic of the General Hospital
of Malmö, stating the following:
(translation from Swedish)
"[The applicant] was admitted for care [here] from 18 January to
21 March 1989. During this period [she] showed no signs of a
serious mental illness.
Our assessment is, however, that [the applicant] is suffering
from a personality disturbance characterised by suspicions and
rigidity - particularly in pressing situations she has a tendency
to make paranoid interpretations. She also very strongly denies
having any problems.
In connection with her crisis caused by the taking into care of
her son [the applicant] has seemed more open and accessible for
information and further cooperation."
Relevant domestic law
Under Section 1, subsection 1 of the 1980 Act public care was to
be provided inter alia for persons under eighteen years of age, if it
could be presumed that the necessary care could not be given to the
young person with the consent of the person or persons having custody
of him.
Care was to be provided inter alia if lack of care for him or any
other condition in the home entailed a danger to his health or
development (Section 1, subsection 2, no. 1).
A Social Council could immediately place a person under twenty
years of age in public care, if it was probable that the person was in
need of care under the 1980 Act and that, inter alia in view of the
danger to the person's health or development, the matter could not
await a court examination (Section 6, subsection 1).
On 1 July 1990 the 1990 Act entered into force.
Under Section 1, subsection 2 of the 1990 Act a child shall be
placed in public care in one of the circumstances mentioned in Section
2 if it can be assumed that the necessary care cannot be provided with
the consent of that person or those persons who have custody of him.
Public care shall be provided if there is a particular reason to
believe that the health or development of the child may be jeopardised
because of insufficient care or any other circumstance in the home
(Section 2).
The Social Council is to decide how care is to be provided and
where the child is to reside. It may consent to the young person
residing in his own home, if this may be presumed to be the most
appropriate way of arranging the care. Care is, however, always to
commence away from his home (Section 11, subsections 1 and 2).
The Social Council's decision to transfer the young person to
other premises during the course of the care can be appealed against
to the administrative courts (Section 41, subsection 1, no. 1).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 August 1992 and registered
on 17 December 1992.
On 19 January 1993 the respondent Government were requested to
submit certain information pertaining to the application.
This information was submitted by the Government on 1 February
1993. The applicant submitted comments in reply in February and March
1993.
COMPLAINT
The applicant complains that her son Jonas is unjustifiably kept
in public care. She refutes the allegations by the social authorities
that she is suffering from a mental illness and refers to the
psychiatric opinion of Dr. A.S. The applicant was allegedly accused by
a neighbour of using "strange methods" in raising Jonas. She invokes
Article 8 of the Convention.
THE LAW
The applicant complains of the keeping in force of the public
care order regarding her son Jonas. She invokes Article 8 (Art. 8) of
the Convention which reads :
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that the mutual enjoyment by parent and
child of each other's company constitutes a fundamental element of
family life, and the natural family relationship is not terminated by
reason of the fact that the child is taken into public care (see e.g.
Eur. Court H.R., Rieme judgment of 22 April 1992, Series A no. 226-B,
p. 68, para. 54). The right to respect for family life includes a right
to the taking of measures with a view to the parent or parents being
reunited with the child (ibid., p. 71, para. 69).
The Commission finds that the taking into care of Jonas
interfered and continues to interfere with the applicant's right to
respect for her family life. Such an interference constitutes a
violation of Article 8 (Art. 8) of the Convention unless it is "in
accordance with the law", has one or more aims that are legitimate
under Article 8 para. 2 (Art. 8-2) and is "necessary in a democratic
society" (ibid., p. 68, paras. 55-56).
It has not been alleged that the interference was not "in
accordance with the law". The Commission, for its part, accepts that
the interference was in accordance with Swedish law.
The relevant legislation was and continues to be aimed at
protecting the health and the rights and freedoms of Jonas. The
Commission finds no indication that the provisions were applied for any
other purpose. The interference thus had aims that were legitimate
under Article 8 para. 2 (Art. 8-2).
The notion of necessity implies that the interference with a
right under Article 8 para. 1 (Art. 8-1) must correspond to a "pressing
social need" and, in particular, that it must be proportionate to the
legitimate aim pursued. In determining whether an interference is
"necessary in a democratic society" a margin of appreciation is to be
left to the Contracting State. The Convention organs' review, however,
is not limited to ascertaining whether the State exercised its
discretion reasonably, carefully and in good faith. Moreover, the
Convention organs must look at the impugned decisions in the light of
the case as a whole and determine whether the reasons adduced to
justify the interference are "relevant and sufficient" (Eur. Court
H.R., Olsson no. 2 judgment of 27 November 1992, para. 87, to be
published in Series A no. 250). When determining these questions the
Convention organs should 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
(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).
The Commission considers that the placing of Jonas in public care
and the keeping in force of the care have been based on careful
examination by Swedish administrative courts. The reasons for the
placing of Jonas in public care were, in essence, that the applicant
had been found to suffer from a mental disturbance involving morbid and
paranoid suspicions and therefore, as a single mother, had been unable
to care properly for Jonas. Moreover, she had refused Jonas permission
to see his father or to establish social contacts outside the home.
These reasons are clearly relevant and in the Commission's view
also sufficient to justify the placement of Jonas in public care. The
Commission further observes that, although several meetings between her
and Jonas have been planned by the authorities at his request, the
applicant has refused to attend them.
The Commission also notes that the applicant was represented by
counsel throughout the proceedings. There is thus no indication that
she was not sufficiently involved in the decision-making process.
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 had and have relevant and
sufficient reasons for placing and keeping Jonas in public care.
The Commission thus concludes that the interference with the
applicant's right to respect for her family life, being proportionate
to the legitimate aim pursued, could and can at present reasonably be
considered as being necessary in a democratic society for the
protection of the rights and freedoms of Jonas. It has therefore been,
and still is, justified under Article 8 para. 2 (Art. 8-2).
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reason, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy