AS TO THE ADMISSIBILITY OF
Application No. 13635/88
by Annette NORDBORG
against Sweden
The European Commission of Human Rights sitting in private
on 4 April 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
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 7 September 1987
by Annette Nordborg against Sweden and registered on 29 February 1988
under file No. 13635/88;
Having regard to the report provided for in Rule 40 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 1966. She is an
employee in a geriatric hospital and resides in Östersund. Before the
Commission the applicant is represented by Mr. Gunnar Hillström, a
lawyer practising in Östersund.
The applicant has a son Pierre, born in 1984. He was taken
into care in 1984. On 9 November 1986 the applicant gave birth to a
daughter, Jennie.
On the same day Jennie was taken into immediate care pursuant
to a decision by the Chairman of the Social Council (socialnämnden) in
Östersund. After about a week Jennie was taken to a foster home where
she is still living.
On 18 November 1986 the immediate care order was confirmed by
the County Administrative Court (länsrätten) of the County of Jämtland.
The Court found that it was likely that Jennie needed care under the
1980 Act with Special Provisions on the Care of Young Persons (lagen
med särskilda bestämmelser om vård av unga; "the 1980 Act") and that
the Court's decision on care could not be awaited because of the risk
to Jennie's health and development. The applicant appealed to the
Administrative Court of Appeal (kammarrätten) of Sundsvall, which
confirmed the decision on 8 December 1986.
In the meantime, the Social Council lodged a request with the
County Administrative Court for an order that Jennie be taken into
care pursuant to the 1980 Act.
The County Administrative Court held a hearing in the case at
which the applicant was present and assisted by counsel. The Court
heard seven witnesses (three at the applicant's request) and two
psychologists as experts. The presiding judge had previously taken the
decision of 18 November 1986 concerning the immediate care order. He
was now assisted by two lay assessors. In a judgment of 22 December 1986
the Court ordered that Jennie be taken into care.
The applicant appealed to the Administrative Court of Appeal in
Sundsvall, which held a hearing. The Court was composed of three
judges and two lay assessors. The three judges had previously taken
the decision of 8 December 1986.
At the hearing the applicant was present and assisted by
counsel. One of the psychologists was heard again as an expert. In a
judgment on 26 February 1987 the Administrative Court of Appeal
confirmed the judgment of the County Administrative Court. The Court
stated inter alia:
"The Administrative Court of Appeal has to decide, on the
basis of the findings concerning (the applicant's) person and
her present living conditions, whether or not she would be
able, on her own, to give her daughter the necessary care.
The question whether it was justified or not to admit (the
applicant) to a special school for the mentally retarded or
the fact that she has previously been the object of special
measures by the public authorities is not in itself decisive.
The assessment shall be made in view of the findings concerning
her ability under her prevailing circumstances. In this
respect, the facts indicate no deficiency in her intellectual
and emotional capacity which would appear to exclude that she
could take care of the daughter herself, provided however that
she receives considerable support from others. It seems
impossible to get such necessary assistance from anybody
closely related to the applicant. (The applicant) has firmly
stated that she is opposed to any co-operation with the Social
Council. The Administrative Court of Appeal finds that her
statement - even if it may be the result of the situation in
which she finds herself - must be taken as an expression of
her true attitude. It must therefore be assumed that a
favourable co-operation with supportive measures by the Social
Council will not be established.
As it is impossible to provide for such supportive measures,
which the Administrative Court of Appeal finds manifestly
necessary if (the applicant) is to take care of her child, the
Court finds that the conditions for care under the 1980 Act
are satisfied."
The applicant appealed to the Supreme Administrative Court
(regeringsrätten) which, on 10 July 1987, refused leave to appeal.
Section 1 of the 1980 Act reads as follows in its relevant
parts:
"Care is to be provided pursuant to this Act for persons
under 18 if it may be presumed that the necessary care cannot
be given to a young person with the consent of the person or
persons having custody of him and, in the case of a young
person aged 15 or over, if a similar presumption can be made
concerning his own consent.
Care is to be provided for a young person if
(1) his health or development is endangered by lack of care
or other conditions in his home, or ..."
Care orders are issued by the County Administrative Court at
the request of the Social Council.
Under Section 6 of the 1980 Act the Social Council is authorised
to order that a child be taken into care immediately. The order may be
made by the Chairman of the Social Council if the decision of the
Council cannot be awaited. The conditions for an immediate care order
are that "it is likely that the young person needs to be given care
under the 1980 Act and that "the Court's decision cannot be awaited
owing to the risk to the young person's health or development or
because the continued investigation can be seriously impeded or further
measures prevented."
An immediate care order under Section 6 of the Act must be
submitted for confirmation to the County Administrative Court within a
week from the date of the decision. The Court shall examine the
decision as soon as possible, normally within a week from the day on
which the case was submitted to the Court.
Section 8 of the Act provides that, if the Court confirms an
immediate care order, the Social Council shall apply for a final care
order within four weeks from the day on which the child was taken into
care. If the application is not made within that time limit the
immediate care order shall cease to be valid.
COMPLAINTS
1. The applicant complains that she has been the victim of a
violation of Article 8 of the Convention on the ground that her
daughter has been taken into care. The applicant maintains that
Swedish law does not satisfy the requirements as to the quality of the
law since it is too vague and does not define the scope of the
discretion conferred upon the authorities.
2. The applicant further alleges a violation of Article 6 para. 1
of the Convention on the ground that she did not receive a fair
hearing within a reasonable time after the events of 1984 on which the
findings were based. She also alleges a violation of Article 6 para. 1
on the ground that the same judges decided first on the immediate care
order and then on the final care order. She submits that the requirement
of an impartial tribunal was not satisfied.
THE LAW
1. The applicant complains that her daughter has been taken into
care and alleges a violation 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, home and 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 finds that the taking into care of the
applicant's daughter interfered with her right to respect for her
family life protected by Article 8 para. 1 (Art. 8-1) of the
Convention. It must therefore be examined whether this interference
was justified under the terms of Article 8 para. 2 (Art. 8-2), i.e.
whether the interference was "in accordance with the law" and pursued
one or more of the legitimate aims enumerated in para. 2 of Article 8
(Art. 8-2) and whether it was "necessary in a democratic society"
for that or those aims.
The Commission recalls that it is established that the
relevant provisions in the 1980 Act with Special Provisions on the
Care of Young Persons satisfy the requirement as to the quality of the
law (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A
no. 130, pp. 30-31, paras. 60-63). In the opinion of the Commission,
there is nothing to suggest that the decision taken by the Courts in
the present case were contrary to Swedish law. The issue of taking
the child into care was examined by the competent administrative
courts up to the Supreme Administrative Court. In these circumstances,
the Commission is satisfied that the decision to take the applicant's
daughter into care was "in accordance with the law".
The Commission furthermore considers that the interference had
a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the
interests of the child, which falls under the expression "for the
protection of health and morals" and "for the protection of the
rights and freedoms of others" (cf. above-mentioned Olsson judgment,
p. 31, paras. 64-65).
It remains to be examined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the established case-law the notion of necessity
implies that the interference corresponds to a pressing social need
and, in particular, that it is proportionate to the legitimate aim
pursued. In determining whether an interference is "necessary in a
democratic society" the Commission furthermore has to take into
account that a margin of appreciation is left to the Contracting
States. However, the Convention organs' review is not limited to
ascertaining whether a respondent State has exercised its discretion
reasonably, carefully and in good faith. They cannot confine
themselves to considering the relevant decisions in isolation but must
look at them in the light of the case as a whole. They must determine
whether the reasons adduced to justify the interference at issue are
"relevant and sufficient" (cf. Olsson judgment, loc. cit., pp. 31-32,
paras. 67-68).
The Commission recalls that both the County Administrative
Court and the Administrative Court of Appeal held oral hearings. The
applicant was present at both hearings and was assisted by counsel on
these occasions. The County Administrative Court heard two experts as
well as seven witnesses, three of them at the applicant's request.
Before the Administrative Court of Appeal one of the experts who had
been heard by the County Administrative Court was heard again. Having
regard to these facts, the Commission finds that, insofar as certain
procedural requirements are implicit in Article 8 (Art. 8), these
requirements were satisfied, since the applicant was involved in the
decision-making process to a degree sufficient to provide her with the
requisite protection of her interests.
However, a decision to take a child into care must also be
supported by sufficiently sound and weighty considerations since such
a decision is a serious interference with the right protected under
Article 8 para. 1 (Art. 8-1). In order to determine whether in the
present case the reasons can be considered "relevant and sufficient"
for the purpose of Article 8 (Art. 8), the Commission has examined the
reasons adduced by the courts and the evidence available to them.
The Commission recalls the grounds on which the judgment of
the Administrative Court of Appeal of 26 February 1987 was based. The
Court found it not excluded that the applicant was emotionally and
intellectually capable of taking care of her daughter, but in the
specific circumstances of the case it was a condition that she received
considerable support from closely related persons or from the Social
Council. However, it was not possible to receive the required support
from a closely related person and the applicant had firmly opposed
co-operation with the Social Council. Consequently, the Court found
that the support which was necessary could not be ensured.
The Commission finds that these reasons are "relevant" to a
decision to take a child into care.
It further recalls that a number of reports and certificates
were available to the courts when they examined the case. Furthermore,
the Courts heard experts as well as witnesses. The Courts' judgments
accordingly were not only founded on documentation but also on the
evidence given at the hearings held before them and they had the
benefit of their own impression of the persons involved.
The Commission finds that the decision to take the applicant's
child into care was supported by "sufficient and relevant" reasons and
that, having regard to their margin of appreciation, the Swedish
authorities were entitled to find it necessary to take the applicant's
child into care. The Commission concludes that this decision can be
regarded as "necessary in a democratic society" within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention in the interests of the
child.
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.
2. The applicant further complains of violations of Article 6
(Art. 6) of the Convention which in the first sentence of the first
paragraph (Art. 6-1) reads:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The applicant's allegation of a violation of Article 6 para. 1
(Art. 6-1) is in substance based on three contentions, i.e. that the courts
were not impartial, that she did not receive a fair hearing and that
the condition of "reasonable time" was not satisfied.
As to the question of impartiality, the Commission recalls
that the existence of impartiality must be determined according to a
subjective test, that is on the basis of the personal conviction of a
particular judge in a given case, and also according to an objective
test, that is by ascertaining whether the judge offered guarantees
sufficient to exclude any legitimate doubts in this respect (see,
amongst other authorities, Eur. Court H.R., De Cubber judgment of
26 October 1984, Series A no. 86, pp. 86, pp. 13-14, para. 24).
As to the subjective test, the personal impartiality of a
judge must be presumed until there is a proof to the contrary. The
applicant has in no way shown that the judges concerned acted with
personal bias.
Under the objective test, it must be determined whether, quite
apart from the judge's personal conduct, there are ascertainable facts
which may raise doubts as to his impartiality. In this respect even
appearances may be of a certain importance. What is at stake is the
confidence which the courts in a democratic society must inspire in
the public and above all in the parties to the proceedings. Accordingly,
any judge in respect of whom there is a legitmate reason to fear lack
of impartiality must withdraw (cf. De Cubber judgment, loc. cit.,
Series A no. 86, p. 14, para. 26).
This implies that in deciding whether in a given case there is
a legitimate reason to fear that a particular judge lacks impartiality,
the standpoint of the complaining party is important but not decisive.
What is decisive is whether this fear can be held objectively justified.
In the present case, the fear of lack of impartiality was based
on the fact that the County Administrative Court judge who presided at
the hearing, following which the final care order was issued, had
previously taken the decision that the child should be taken into
immediate care, and that similarly, at the level of the Administrative
Court of Appeal, the judges who took part in the judgment had
previously decided on the immediate care order.
This kind of situation may occasion misgivings on the part of
a party as to the impartiality of a judge, misgivings which are
understandable but which nevertheless cannot necessarily be treated as
objectively justified. Whether they should be so treated depends on
the circumstances of each particular case.
In the present case, the judge of the County Administrative
Court and the judges of the Administrative Court of Appeal were first
called upon to examine whether an immediate care order should be confirmed
and later whether a final care order should be issued. As regards the
first examination the courts were required to examine whether it was
"likely" that a final care order would be issued and whether the
courts' final decision on the care could be awaited. This examination
involves a summary assessment of the available material, and is
different from the assessment as to whether a final care order should
be issued.
In the Commission's view, the mere fact that a judge or an
appeal judge, in a system like the Swedish one, has first to determine
a request for an immediate care order, which is a temporary measure
normally constituting an initial phase to a decision to take a child
into public care, and then to take part in the decision on the final
care order, cannot be held as, in itself, justifying fears as to his
impartiality. The Commission is therefore of the view that in the
circumstances of the case the impartiality of the tribunals was not
capable of appearing to be open to doubt and that the applicant's fear
in this respect cannot be considered objectively justified.
As to the contention that she did not have a fair hearing, the
applicant submits that the psychologist, who expressed his view on her
mental health, had not examined her since August 1983. The psychologist's
statement was in her opinion not founded on scientific methods. She
points out that a psychiatrist who examined her in February 1987 had
declared that she was not mentally retarded.
With regard to the judicial decisions of which the applicant
complains in this connection, the Commission first recalls that, in
accordance with Article 19 of the Convention, its only task is to
ensure the observance of the obligations undertaken by the Parties to
the Convention. It is not competent to deal with an application
alleging that errors of law or fact have been committed by domestic
courts, except where it considers the rights and freedoms set out in
the Convention (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31
and 45). In this respect the Commission recalls that the applicant's
case was dealt with by three different courts, i.e. the County
Administrative Court, the Administrative Court of Appeal and the
Supreme Administrative Court.
As regards the procedure before the courts, the Commission
notes that hearings were held before the County Administrative Court
and the Administrative Court of Appeal. During these hearings the
applicant was assisted by counsel. Several witnesses and other
persons were heard, including experts who had issued certificates.
There is no indication that the applicant was prevented from
presenting her arguments and views to the courts or that the procedure
was in any other respect unfair. The Commission is not called upon to
examine whether the Courts correctly assessed the evidence before them.
The applicant further claims that the proceedings have not
been concluded within a reasonable time. The Commission here notes
that, on 9 November 1986, Jennie was taken into care. The proceedings
terminated on 10 July 1987 when the Supreme Administrative Court
refused leave to appeal.
Consequently, the proceedings lasted approximately eight months.
The Commission finds that the duration of these proceedings, at three
levels of jurisdiction, is not excessive for the purpose of Article 6
para. 1 (Art. 6-1). The fact that the courts took into consideration
facts which dated back to 1984 cannot change this assessment.
Consequently the Commission finds no appearance of a violation
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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy