AS TO THE ADMISSIBILITY OF
Application No. 12805/87
by Ewa and Katarzyna NOWACKA
against Sweden
The European Commission of Human Rights sitting in private
on 13 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
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
Mrs. J. LIDDY
Mr. 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 24 January 1987
by Ewa and Katarzyna Nowacka against Sweden and registered
on 19 March 1987 under file No. 12805/87;
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 applicants, may be
summarised as follows.
The first applicant is a Polish citizen, born in 1954 and
resident at Alvesta, Sweden. She is a factory worker by profession.
The second applicant is the first applicant's daughter, Katarzyna,
born on 28 August 1982. She is also a Polish citizen. Since 13 June
1986 she has been living with foster parents at Färgelanda, Sweden.
Before the Commission the applicants are represented by Mrs. Siv
Westerberg, a laywer practising at Gothenburg.
In May 1985 the applicants came to Sweden from Poland.
They settled down in Alvesta with the first applicant's fiancé,
Jan Kuczynski.
On 16 August 1985 the Chairman of the Social Council
(socialnämnden) of Alvesta decided to take Katarzyna into public care
on a provisional basis under Section 6 of the 1980 Act with Special
Provisions on the Care of Young Persons (lagen med särskilda
bestämmelser om vård av unga). It was suspected that Katarzyna, who
had been taken to hospital by the first applicant and Jan Kuczynski on
14 August 1985 as she was feverish and sick, had been maltreated. Dr.
U.L., who examined her at the hospital, observed several bruises on
her body and, as he suspected maltreatment, made a report to the
social authorities.
The provisional care order was confirmed by the County
Administrative Court (länsrätten) of Kronoberg County on
27 August 1985.
The Social Council applied to the County Administrative Court
for a decision that Katarzyna be taken into public care pursuant to
Section 1 second paragraph 1 of the 1980 Act. After having held a
hearing in the case on 23 September 1985, the Court on 8 October 1985
removed the case from its list of cases, as the Social Council had
withdrawn its action before the Court due to an agreement with the
first applicant that the care be carried out on a voluntary basis.
The provisional care decision was thereby revoked.
After further injuries had been discovered in a medical
examination of the girl the Chairman of the Social Council on 31
October 1985 again decided to take Katarzyna into care on a
provisional basis. The same day Katarzyna was placed at the
Children's Medical Clinic at the hospital of Växjö. On 13 November
1985 the County Administrative Court upheld the provisional care
order.
On 25 November 1985 the Social Council decided to apply to the
County Administrative Court for a decision that Katarzyna be taken
into public care pursuant to Section 1 second paragraph 1 of the 1980
Act. It also decided to place the girl at the Arabo Children's Home
awaiting a transfer to a suitable foster home. It prohibited Jan
Kuczynski from meeting Katarzyna and restricted the first applicant's
right of access to her to a couple of hours two or three times a week
under the supervision of personnel from the Children's Home or the
social authority. The latter decison was taken under Section 16 of
the 1980 Act. The first applicant and Jan Kuczynski were present and
assisted by counsel at the meeting in the Social Council at which
these decisions were taken after a discussion of the issues. The
second applicant was represented by counsel appointed ex officio.
The County Administrative Court held a hearing during which
the Social Council pointed out, inter alia, that it appeared from its
investigation that Katarzyna during the period from August until
November 1985 had suffered a number of injuries, the gravity of which
varied. The doctor who treated her considered one of the injuries to
be very grave. In medical examinations on 14 August and 2 November
1985 many bruises were discovered on Katarzyna's body. Psychiatric
and psychological assessments of the girl had confirmed that the
physical injuries she had suffered had affected her mental health.
The Council argued that Katarzyna had been injured while in the care
of her mother and Jan Kuczynski and that it was obvious that they did
not have the ability to provide the care she needed and secure living
conditions. Her life, health and development were endangered. The
first applicant and Jan Kuczynski, who were present at the hearing and
assisted by counsel, maintained that neither of them had in any way
harmed Katarzyna. They maintained that she was a lively child who
bruised herself easily and that her injuries were normal for a child
of her age. The first applicant was opposed to public care being
provided for Katarzyna and together with Jan Kuczynski she appealed
against the Social Council's decision on access. Katarzyna was
represented by officially appointed counsel before the Court. He
supported the request for public care.
The Social Council submitted the following documents to the
Court: a report of the Social Council, two medical certificates
signed by Dr. U.L., Head of the Children's Medical Clinic at the Växjö
hospital and the doctor who reported to the Social Council that he
suspected that Katarzyna had been maltreated, and an opinion issued by
Chief Doctor T.G. and the psychologist B.S., both of the Children's
and Juveniles' Psychiatric Clinic of Växjö.
The first applicant submitted a certificate issued by the
Deputy Chief Doctor P.G.N. and referred to statements made by the
psychologists G.L. and A. L-C.
The County Administrative Court also considered an opinion
given by Dr. G.S. of the Lund Institute of Forensic Medicine, a
medical opinion issued by Dr. S.L. of the X-ray department of the Lund
hospital, a medical certificate issued by Dr. E.B. of the department
for coagulation diseases at the Malmö hospital, medical case-books
concerning Katarzyna, photographs taken of her on 14 August and 2
November 1985 and minutes from interrogations.
The County Administrative Court heard as witnesses Dr. U.L.,
Chief Doctor T.G. and Mr. J.M., a friend of the first applicant and
Jan Kuczynski. The Court also heard the first applicant.
On 17 December 1985 the County Administrative Court granted
the Social Council's application and revoked the Council's decision on
access insofar as it concerned the first applicant. The Court did not
examine Jan Kuczynski's appeal against the decision to restrict his
access to Katarzyna, no legal provision giving the Court the
competence to do so, as Jan Kuczynski was not Katarzyna's parent or
her custodian. The Court stated, inter alia, the following in its
reasons:
"During a period of three months Katarzyna has suffered a
number of injuries the gravity of which has varied and she has
received several bruises. Since 14 October 1985 Katarzyna
has spent only 17 days at home. During this period she has
suffered several injuries and bruises. After she was
taken into care on 31 October 1985 she has not suffered any
injuries. The bruises subsequently observed were on her arms
and legs. The doctor of forensic medecine G.S. has stated
that certain specific circumstances strongly tell against
the theory that all the injuries were self-inflicted
(accidents). The Head of Clinic, Dr. U.L., has expressed
his strong suspicion that Katarzyna has been maltreated.
The same idea is expressed in the opinion given by the
Children's and Juveniles' Psychiatric Clinic. Ewa Nowacka
has maintained that Katarzyna bruises easily. The analysis
of a blood sample shows that Katarzyna's blood coagulates
normally. The defect caused by stretching must have occurred
before 31 October 1985.
Katarzyna has suffered these injuries and bruises in her
home environment. The County Administrative Court finds
strong reasons to believe that she has been maltreated. It
concludes that the conditions in the home entail a danger to
Katarzyna's health and development. The necessary care
cannot be provided with Ewa Nowacka's consent. The Social
Council's request is therefore granted.
As regards the right to access Dr. U.L. and Dr. T.G. have
underlined the importance of maintaining contact between Ewa
Nowacka and Katarzyna. The same opinion has been expressed
in the psychological certificates referred to by Ewa
Nowacka. Katarzyna is at present staying at Arabo and it is
not envisaged to place her somewhere else. Considering
Katarzyna's age and the fact that she does not speak Swedish
it is important that Ewa Nowacka has an unrestricted right
of access. The Social Council's decision to restrict her
access is therefore revoked."
The first applicant appealed to the Administrative Court of
Appeal (kammarrätten) of Jönköping. The Court held a hearing, at
which the first applicant was present and the applicants were
represented in the same way as in the County Administrative Court. The
applicant stated she did not object to care being provided for
Katarzyna on a voluntary basis. She could live together with
Katarzyna at the Arabo Children's Home. She referred to a certificate
issued by the psychiatrist R.S. on 5 February 1986 concerning Jan
Kuczynski. The Social Council and Katarzyna's official counsel
maintained the position they had adopted in the lower court.
At the request of the first applicant seven witnesses were
heard by the Administrative Court of Appeal. Among them were Mr.
A.K., her counsel in the County Administrative Court, Jan Kuczynski's
ex-wife, the first applicant's aunt, Mr. J.M., who used to stay with
Jan Kuczynski, and J.B., a Polish doctor. At the request of the Social
Council the social welfare officer A.S. was heard as a witness.
Dr. U.L. and Dr. T.G. were heard as expert witnesses by the Court.
After the hearing the Administrative Court of Appeal decided
on 11 February 1986 to obtain the opinion of the Legal, Social and
Medical Council of the National Board of Health and Welfare
(Socialstyrelsens råd för vissa rättsliga, sociala och medicinska
frågor). The Council's opinion, dated 30 April 1986, was drafted by
the Board's council on children's surgery, composed of an Associate
Judge of Appeal, O.S., an expert on forensic medicine, G.V., and Dr.
R.G. The first applicant, Katarzyna's officially appointed counsel and
the Social Council were invited to comment on the opinion.
In a judgment of 19 June 1986 the Administrative Court of
Appeal confirmed the decision of the County Administrative Court. It
stated as follows:
"Katarzyna, who is a girl of almost four years, has been ill
on several occasions during three months in the autumn of
1985, inter alia with attacks of vomiting and with a grave
inflammation of the pancreas, and has suffered various
injuries such as a fractured arm, bruises and other injuries
of the skin. The vomiting cannot be considered to have been
connected with the subsequent inflammation of the pancreas,
but can have had several causes and have been of a kind that
any child could be affected of. On the other hand it is
established that the inflammation of the pancreas had
traumatic causes. It has not been established what kind of
violence injured the pancreas. The explanation given by Ewa
Nowacka, i.e. that Katarzyna fell in the forest and hurt the
pancreas, is not very probable.
On the other hand it cannot be excluded, but must be
accepted, that the dislocation of the arm, which is
something that mainly affects children of Katarzyna's age
and cannot be considered to have been serious, occurred in
the way and in the circumstances Ewa Nowacka has stated.
During medical examinations in the period August-November 1985
Katarzyna had a large number of bruises on her body, arms,
legs and head. Ewa Nowacka's explanation that Katarzyna
hurts herself easily - an explanation that is extremely
frequent in cases like the present one - has been refuted
by statements of experts based on chemical analyses.
Katarzyna must therefore be considered to bruise herself
like other children of her age. Children of her age often
have bruises. Bruises have been found on Katarzyna's body
also when she was staying at Arabo. They were, however,
considerably less numerous and situated mainly on her legs.
The bruises that were found during the autumn of 1985 when
Katarzyna was in the care of Ewa Nowacka had a frequency and
were found in such places on Katarzyna's body that they
cannot have been inflicted while she was playing but must
mainly be considered not to have been self-inflicted. The
fact that the bruises are to be found on "different levels"
supports this opinion.
The wound on Katarzyna's foot, which has left a
scar, as far as the investigation shows, cannot have
been caused by clothes or shoes galling the skin, but is more
profound. Even if inflicted in the way Ewa Nowacka contends,
its character can only be explained by insufficient care.
It appears clearly from the investigation that
Katarzyna's right arm was dislocated before 31 October 1985.
It has never been alleged that the dislocation was caused by
maltreatment. However, if the girl was insufficiently
looked after this could have contributed to causing the
injury and when the dislocation had occurred Ewa Nowacka did
not notice it.
Katarzyna has consequently in a few months been
injured on several occasions. There might be a plausible
explanation for each injury, but the large number of
injuries, some of them grave, that Katarzyna has suffered
during a relatively short period, have given the Social
Council a justified reason to investigate the conditions of
Katarzyna's home.
The question in this case has mainly been whether or
not Katarzyna has been maltreated. The parties differ on
this. The expert witnesses of the Court are convinced that
she was maltreated, whereas a doctor called by Ewa Nowacka
to give evidence has maintained the opposite, as well as the
other witnesses heard at Ewa Nowacka's request.
Clearly the assessment made when assault is to be
established is different from the assessment in a case under
the Act with Special Provisions on the Care of Young
Persons. In the former case the question is whether it has
been proven that a certain person intentionally has caused
an injury to another person. In a case under the 1980 Act,
which is an Act the purpose of which is to provide the
necessary protection for the child, another assessment must
be made. It is of no importance to the child whether it can
be established that a certain person intentionally
maltreated it. The danger to the child's health and
development is the same, if this had been the case, if a
stranger caused the injuries or if they occurred as a
consequence of the custodian not looking after the child
sufficiently. It is therefore in the present case without
importance that the police investigation concerning
maltreatment of Katarzyna, as has been pointed out by Ewa
Nowacka, has been discontinued.
The Administrative Court of Appeal finds that the
injuries suffered by Katarzyna occurred during a period when
she was in the care of Ewa Nowacka. Ewa Nowacka has
accordingly cared insufficiently for Katarzyna and has, on
account of the nature and the extent of her injuries, caused
a danger to Katarzyna's health and development. Katarzyna is
therefore in need of supervised care organised by the State.
Ewa Nowacka has previously interrupted care organised for
Katarzyna on a voluntary basis. Since it cannot be assumed
that the necessary care can be provided for Katarzyna with
Ewa Nowacka's consent, care must be provided under the Act
with Special Provisions on the Care of Young Persons."
The first applicant appealed against the judgment to the
Supreme Administrative Court (regeringsrätten). She requested that
the public care of Katarzyna be terminated, that the Court appoint Dr.
P.G.F-F. as an expert witness and that it hold an oral hearing in the
case. She maintained that the expert witness of the Administrative
Court of Appeal, Dr. U.L., was biased as he was the doctor who
reported to the Social Council that he suspected maltreatment.
Katarzyna's officially appointed counsel requested that the
Court obtain a medical opinion from the Children's and Juveniles'
Psychiatric Clinic of Vänersborg.
Before granting leave to appeal the Supreme Administrative
Court on 16 October 1986 decided to obtain an opinion from the
National Board of Health and Welfare. The opinion was to be submitted
before 24 November 1986, a time-limit that subsequently, at the
request of the Board, was extended to 16 February 1987.
The Supreme Administrative Court delivered its judgment on 22
December 1987. It found that Dr. U.L. could not be considered to be
biased and that his certificate and statements were valid evidence.
The Court furthermore found that the investigation was comprehensive
and sufficient for a decision. It therefore rejected the parties'
requests for further investigation as well as the request for a
hearing. One of the judges dissented and considered that the Court
should request an opinion from Dr. U.L. on the character of
Katarzyna's bruises in order to establish if they could have been
caused by the inflammation of the pancreas.
The Court unanimously rejected the appeal. In its judgment it
dealt in detail with the injuries inflicted on Katarzyna and the
expert opinions given on them. The Court referred to an opinion of 23
March 1987 given by Dr. G.B., formerly the Head of the Children's
Medical Clinic of Paris (Clinique Médicale Infantile) and submitted by
the first applicant. It furthermore considered American and
Australian investigations concerning complications that can appear
after an inflammation of the pancreas, such as changes of the skeleton
as well as changes of the dermis that look like bruises. The first
applicant had quoted medical publications in which the results of
these investigations were published.
The Supreme Administrative Court concluded in the reasons for
its judgment:
"It appears from the above that Katarzyna, during a
period in which she was in Ewa Nowacka's care, has suffered
various injuries. She received the injuries partly during a
period of a few weeks prior to 14 August 1985, partly
during the leaves from hospital referred to above
and partly during a period of not quite three weeks
prior to 31 October 1985. One of the injuries, the
inflammation of the pancreas, could have been fatal. The
bruises were numerous and unusually located on her body,
namely on the trunk, the upper part of the thighs and on the
throat. It is unlikely that the bruises were caused in the
way Ewa Nowacka has maintained. Ewa Nowacka has explained
that she did not notice that Katarzyna in October 1985 broke
her right upper arm, in spite of the fact that the fracture
must have caused Katarzyna pains during several days. After
public care had been provided for Katarzyna under the Act
with Special Provisions on the Care of Young Persons she has
only been bruised in the way children do when they play or fall
normally. Dr. U.L. is convinced that Katarzyna has been
maltreated. Also the two psychiatrists that examined
Katarzyna consider that she has been maltrated. Dr. B.T. is
of the same opinion.
Making an overall assessment the Supreme Administrative
Court finds that Katarzyna, during the period she was in the
care of Ewa Nowacka, has been maltreated or otherwise
subjected to physical violence. Only a few of Katarzyna's
injuries can be related to accidents or conditions which Ewa
Nowacka could not prevent. This shows that Ewa Nowacka's
care for Katarzyna has been insufficient. Also the fact
that Ewa Nowacka did not notice the fracture of the arm and
did not provide for any treatment shows a serious neglect.
The Court finds the established insufficiencies in the care
of Katarzyna so serious that they entail a danger to
Katarzyna's health and development.
It appears from the case-file that in the beginning of
October 1985 the Social Council started co-operating with
Ewa Nowacka in order to provide the necessary care for
Katarzyna on a voluntary basis. However, Ewa Nowacka
discontinued the co-operation after a few days.
As a consequence of the subsequent events the Social Council
could not rely on Ewa Nowacka's consent to provide Katarzyna
with the care she needs.
On account of this the Supreme Administrative Court finds
that the prerequisites for providing care for Katarzyna,
under Section 1 first paragraph and second paragraph first
sentence of the Act with Special Provisions on the Care of
Young Persons, were fulfilled at the time of the judgments
of the lower courts. Nothing has emerged in the case
which could make the Supreme Administrative Court assess
Katarzyna's need for care differently."
Parallel to the proceedings concerning the public care of
Katarzyna there have been several court proceedings concerning the
first applicant's right of access to her daugther. The first
applicant was represented by counsel throughout all these proceedings.
Katarzyna was placed at the Arabo Children's Home on 12
November 1985, after having been taken into care, and stayed there
until 13 June 1986 when she was placed in a foster home. The first
applicant stayed with Katarzyna at the Children's Home from
10 February to 15 May 1986. Thereafter she was refused permission
to stay in the Home and to see Katarzyna. On 11 June 1986 the Working
Committee of the Social Council, in connection with the transfer of
Katarzyna from the Children's Home to a foster home, prohibited the
first applicant from seeing her and decided to keep her place of
residence secret to the first applicant. The decision was taken under
Section 16 of the 1980 Act and the Working Committee stated that it
intended to reconsider it approximately three months after Katarzyna
had been placed in the foster home.
The first applicant appealed against the decision to the County
Administrative Court, which held a hearing and heard two witnesses and
an expert witness. The first applicant was also heard. The evidence
submitted to the Court consisted inter alia of opinions given by two
doctors and a psychologist, of Ewa Nowacka's diary and of notes made
by the personnel of the Children's Home. According to the medical
opinions and the statement of the expert witness Katarzyna's mental
state was bad because of the maltreatment she had been subjected to.
One of the doctors and the psychologist considered that Katarzyna
should be allowed to meet her mother regularly but under supervision.
In its judgment of 1 July 1986 the Court revoked the decision of the
Social Council. After the Social Council had appealed against the
judgment, the Administrative Court of Appeal, on 2 July 1986,
confirmed the County Administrative Court's decision that there was no
reason to keep Katarzyna's place of residence secret to the first
applicant and decided to restrict the first applicant's right of
access to her daughter to three hours once a week during a period of
three months, to be counted from mid-June until mid-September. The
reason given for the restriction was Katarzyna's need for tranquillity
and security during the period in which she was to adapt to the foster
home.
The first applicant appealed against this judgment to the
Supreme Administrative Court, which on 14 August 1986 refused
leave to appeal.
On 20 August 1986 a social welfare officer M.E. decided to
prohibit the first applicant from seeing her daughter pending the
meeting of the Social Council of 17 September 1986. The reason for
this was a bruise that the first applicant had allegedly inflicted on
her daughter during a visit to the foster home. The decision was
revoked by the County Administrative Court by a provisional decision of
22 August 1986 on appeal from the first applicant. The Court decided
that, awaiting a final decision, the judgment of the Administrative
Court of Appeal of 2 July 1986 should be followed. The Court
subsequently held a hearing and in a judgment of 15 September 1986
revoked the decision of the Social Council. The judgment states,
inter alia, as follows:
"In its judgment of 2 July the Administrative Court of
Appeal considered that Ewa Nowacka should have access to her
daughter. What has occurred in the case shows that those
who decided on access did not have sufficient reasons to
restrict the right of access. The Administrative Court of
Appeal restricted the access during a transitional period
until mid-September. There are no sufficient reasons
to assume that the conditions on which the restriction was
based still exist. The revocation of the Social Council's
decision shall therefore not be combined with any
restrictions on the right of access."
Two days after the judgment of the County Administrative
Court, the Working Committee of the Social Council decided to restrict
the first applicant's right of access to her daughter to one day every
second month, in the foster home, in the presence of the foster
parents. The decision was to be reconsidered on 31 October 1987.
The first applicant appealed against the decision to the
County Administrative Court, which, after a hearing, revoked the
decision on 24 September 1986. The reason was that no new
circumstances had been presented in the case since the Court's
previous judgment. It was ordered that the judgment be immediately
enforceable.
After the judgment had been delivered the first applicant made
a request to meet her daughter. On 26 September 1986 she got a letter
from the social welfare officer in charge of her case stating as
follows:
"Interpretation of the judgment of the County Administrative
Court of 24 September 1986.
In consultation with the Chairman of the Social Council, I.A.,
the Deputy Chairman, B.O., the Head of the social authority,
H.G., the district superintendant and the undersigned it was
decided that you may visit Katarzyna once a week for
approximately three hours, on a day that you and the Stenbäck
family agree upon. In addition you might (if it is accepted
by the Stenbäcks, if the interpreter can come, if there is a
suitable train and so on) be able to visit Katarzyna during a
weekend, either on a Saturday or on a Sunday, in October.
An interpreter will be present during your visits.
Yours faithfully,
M.E."
The Social Council appealed against the County Administrative
Court's judgments of 15 and 24 September 1986 to the Administrative
Court of Appeal. The Court held a hearing at which the first
applicant claimed her full right of access and argued, inter alia, that
the Social Council, by not letting a catholic priest visit the girl in
the foster home, obstructed her efforts to give her daughter a catholic
education. She also pointed out that the social authorities, in
restricting her access, refused to comply with the judgment of the County
Administrative Court. At the hearing the Court heard an expert
witness, a social welfare officer and the foster father. They were
all of the opinion that the first applicant should have access to
Katarzyna, but that it should be restricted. The foster father stated,
inter alia, that neither he nor his wife interfered with Katarzyna's
religious education and that they were not opposed to a catholic
priest visiting Katarzyna.
The Administrative Court of Appeal, in a judgment of 28
November 1986, decided to allow the first applicant to see her
daughter in the foster home every third week, alternately during one
day from 10 a.m. until 6 p.m. and during two days, the first day from
10 a.m. until 8 p.m. and the second day from 9 a.m. until 4 p.m. This
should apply until further notice, but no longer than till 1 June
1987. In its reasons the Court stated, inter alia, that the first
applicant, during the longer meetings with Katarzyna, could assist her
at night when she went to bed and participate in her evening prayers.
The Court referred to the above interpretation by the Social Council
of the judgment of the County Administrative Court of 24 September
1986. The reason the Court gave for the restriction of the right of
access was Katarzyna's need for tranquillity and security in the
foster home. The Court also referred to the foster parents'
possibilities of providing successful care.
The first applicant appealed against the judgment to the
Supreme Administrative Court, which on 29 January 1987 refused to
grant leave to appeal.
The first applicant reported the social welfare officer, M.E.,
who had produced the "interpretation" of the County Administrative
Court's judgment of 24 September 1986, to the police. The criminal
investigation led to an indictment by the Regional Prosecutor
(statsåklagaren) of Kalmar on a charge of misuse of office or,
alternatively, negligence in office. The applicants joined in the
prosecutor's action and claimed damages. The social welfare officer
was convicted for negligence in office on 22 December 1987 by the
District Court of Växjö (Växjö tingsrätt) and sentenced to a fine. The
second applicant's action was dismissed, however, as the Court
considered that the social welfare officer had only caused her minor
inconvenience. It was decided that the applicants' claim for damages
should be examined separately in accordance with the procedure provided
for civil cases.
The social welfare officer appealed against the judgment
to the Göta Court of Appeal (Göta hovrätt) which on 26 October 1988
confirmed the judgment of the District Court.
The first applicant brought a request to the Legal Aid Board
(rättshjälpsnämnden) of Malmö for legal aid for the purpose of
bringing the present application to the European Commission of Human
Rights. The Board rejected the request on 15 January 1987.
The first applicant appealed to the Legal Aid Appeals Board
(besvärsnämnden för rättshjälpen), which rejected the appeal on 13
April 1987.
COMPLAINTS
1. The applicants allege a breach of Article 8 of the Convention
in that the decision taking the second applicant into public care was
based on an incorrect medical diagnosis and in that the care was not
immediately terminated after it had appeared that the diagnosis
was incorrect. They also complain that the restriction of the first
applicant's access to the second applicant unjustifiedly interfered
with their family life.
2. The applicants complain that a social welfare officer, by
interpreting a judgment of the County Administrative Court of 24
September 1986 providing that there be no restriction of the first
applicant's right of access to the second applicant, has unjustifiedly
restricted that right. They further complain that they had no
effective remedy against the social welfare officer's decision and
invoke Article 13 of the Convention.
3. The first applicant alleges a violation of her right to a fair
trial guaranteed by Article 6 of the Convention as the expert witness
of the Courts, Dr. U.L., whose statement was of great importance for
the outcome of the case, was biased, Dr. U.L. being the doctor who
made the incorrect diagnosis that led to the taking into care of the
second applicant.
The applicants further allege a breach of Article 6 of the
Convention in that their case was not determined by the Supreme
Administrative Court "within a reasonable time" and in that they were
not afforded a hearing before that court.
4. The first applicant also complains that she has been denied
the right to ensure that the second applicant is given a catholic
education. She contends that her daughter, who was placed in a
protestant foster home, has not been allowed to receive visits from a
catholic priest. She invokes Article 2 of Protocol No. 1 to the
Convention.
5. Finally, the applicants complain that their right to petition
the Commission has been interfered with by the refusal of the Legal
Aid Appeals Board on 13 April 1987 to grant the first applicant legal
aid for this purpose. They allege a breach of Article 25 of the
Convention.
THE LAW
1. The applicants have complained that their right to respect for
their private and family life has been interfered with in a manner
unjustifiable under Article 8 para. 2 (Art. 8-2) of the Convention. In
particular they have pointed out that the second applicant was taken
into public care by a decision based on an incorrect medical diagnosis
and that the care was not immediately terminated after it had appeared
that the diagnosis was incorrect. The applicants furthermore contend
that the restriction of the first applicant's right of access to the second
applicant interferes with their rights under Article 8 para. 1 (Art. 8-1) .
Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission finds that the decision to take the second
applicant into care and to restrict the first applicant's right of
access to the second applicant interfered with the applicants' right
to respect for their family as ensured by Article 8 para. 1 (Art. 8-2) of the
Convention.
It must therefore be examined whether this interference was
justified under the terms of Article 8 para. 2 (Art. 8-2). In this respect the
Commission recalls that three conditions must be satisfied: the
interference 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.
As regards the first condition, the Commission recalls its
opinion in the case (Olsson v. Sweden, Comm. Rep. 2.12.86, para. 139)
where it found that the text of the relevant provisions in the Swedish
acts, although vague, could not be considered as not satisfying the
requirements as to the quality of the law. This view was confirmed by
the European Court of Human Rights (Eur. Court H.R., Olsson judgment
of 24 March 1988, Series A No. 130, paras. 60-63).
Apart from the restrictions on access following the County
Administrative Court's judgment of 24 September 1986 (see below under
2), the Commission finds no indication that the decisions taken in the
present case were contrary to Swedish law. The issue of taking the
second applicant into care was examined by the competent
administrative courts up to the Supreme Administrative Court and the
issue of restricting the first applicant's right of access by two
courts, the Supreme Administrative Court refusing to grant leave to
appeal.
The Commission furthermore finds that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2) , namely the interests of the
child, which in this case falls under the expression "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others".
The Commission concludes that the decision to take the first
applicant's child into care was taken "in accordance with the law"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention and that it
had a legitimate aim (cf. also above-mentioned Olsson judgment, paras.
64-65). The Commission considers that this also applies to the
decisions to restrict the first applicant's access to her daughter.
As regards the decision of the social welfare officer to restrict the
first applicant's access, after the judgment of the County
Administrative Court of 24 September 1986, the Commission refers to
its examination under 2 below.
It remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the established case-law of the European Court of
Human Rights 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 (cf. above-mentioned Olsson judgment,
para. 67).
However, the Convention organs' review is not limited to
ascertaining whether a respondent State has exercised its discretion
reasonably, carefully and in good faith, and 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, para. 68).
The Commission recalls that in the present case the applicants
have alleged that the decision to take the second applicant into care
was based on an incorrect medical diagnosis and that the care should
have been terminated as soon as it had appeared that the diagnosis was
incorrect.
Before considering the substance of this issue, the Commission
recalls first of all that, subsequent to the taking into care of the
first applicant's daughter on a provisional basis, the first applicant
attended a meeting with the Social Council on 25 November 1985 when
the question of maintaining the care order was discussed. During that
meeting the first applicant was assisted by counsel and the second
applicant represented by officially appointed counsel. Furthermore,
the Commission recalls that both the County Administrative Court and
the Administrative Court of Appeal held oral hearings. The first
applicant was present at both hearings and assisted by a lawyer. The
second applicant was represented by officially appointed counsel. The
County Administrative Court heard as witnesses Dr. U.L., the doctor
who reported to the Social Council that he suspected that Katarzyna
had been maltreated and whose diagnosis according to the applicants
was incorrect, Chief Doctor T.G. of the Children's and Juveniles'
Psychiatric Clinic of Växjö and Mr. J.M., a friend of the first
applicant and Jan Kuczynski. The Court also heard the first
applicant. At the request of the first applicant seven witnesses were
heard by the Administrative Court of Appeal. Among them were Mr.
A.K., the first applicant's counsel in the County Administrative
Court, Jan Kuczynski's ex-wife, the first applicant's aunt, a Polish
doctor and a man who used to stay with Jan Kuczynski. The Supreme
Administrative Court did not hold a hearing in the case, but, as
appears from the judgment, carefully examined the first applicant's
written submissions and the statements made by her in the lower
courts, as well as the certificates and scientific material submitted
by her. Moreover, the first applicant was assisted by counsel on
appeal. Having regard to these facts, as well as to the reasons
stated below in relation to Article 6 (Art. 6) of the Convention, the
Commission finds that insofar as certain procedural requirements are
implicit in Article 8 (Art. 8), these requirements were satisfied as regards
the care issue since the first applicant was involved in the
decision-making process to a degree sufficient to provide her with the
requisite protection of her interests.
The Commission recalls that also in the proceedings relating
to the restriction of the first applicant's right of access the County
Administrative Court and the Administrative Court of Appeal held
hearings, during which the first applicant was present and assisted
by counsel, and at which witnesses were heard. The Commission
considers that also in these proceedings the procedural requirements
of Article 8 (Art. 8) were satisfied.
As regards the taking into care the Commission recalls that
all three courts that examined the case found that the injuries that
had been inflicted on the second applicant, during a relatively short
period in which she was in her mother's care, showed that the
conditions in the home were such as to endanger her health and
development. This reason was clearly relevant to the decision to take
her into care.
However, a decision to take a child into care must be supported
by sufficiently sound and weighty considerations since such a decision
is in any case 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 "sufficient" for the purposes of Article 8, the
Commission must further examine the evidence that was available to the courts.
In this respect the Commission recalls that a large number of
medical certificates and opinions were available to the courts when
they considered the care issue. Although these certificates and
opinions to some extent expressed different views on the question
whether the second applicant had been maltreated, it was clear from
them that the girl had suffered several injuries while in her mother's
care and that she had been neglected. Furthermore, the Commission
recalls that the County Administrative Court and the Administrative
Court of Appeal heard several expert witnesses who supported the
findings of the written opinions submitted. The judgments of these
courts accordingly were not founded only on the above documentation
but the courts, on the basis of the hearings held before them, had the
benefit of their own impressions of the persons involved. The
Commission considers the fact that Dr. U.L., who had reported
Katarzyna's situation to the social authorities, was heard as an
expert witness, and that his medical certificates were regarded as valid
evidence in the case, to be without relevance for the assessment of
whether there were sufficient reasons for the care decision,
in view of the comprehensive investigation undertaken in this case.
It has furthermore not been substantiated that Dr. U.L. was partial.
In these circumstances the Commission finds that the decision
to take the first applicant's child into care was supported by
sufficient reasons and that, having regard to their margin of
appreciation, the Swedish authorities were entitled to think that it
was necessary to take the child into care. Accordingly, 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.
Making the same considerations on the issue of the
restriction of the first applicant's right of access, the Commission
finds that, although the County Administrative Court persistently held
that the right of access should not be restricted, the reasons for the
restrictions given by the Administrative Court of Appeal were clearly
relevant. In its first judgment on the issue the Court refers to the
second applicant's need for tranquillity and security during the
period in which she was to adapt to the foster home and, in the second
judgment, it again refers to her need for tranquillity and security
and also to the foster parents' possibilities of providing successful
care.
The Commission considers that in view of the circumstances in
which these decisions were taken the foregoing reasons can be
considered sufficient for the purposes of Article 8 (Art. 8). The Commission
recalls that the Administrative Court of Appeal, when giving its first
judgment, the day after the judgment of the County Administrative
Court, had access to the investigation presented before that Court,
consisting inter alia of opinions given by two doctors and a
psychologist, of Ewa Nowacka's diary, of notes made by the personnel
of the Children's Home and of the statements made by two witnesses and
an expert witness. From the opinions and the statement made by the
expert witness it appears that Katarzyna's mental state was bad
because of the maltreatment she had been subjected to. However, one
of the doctors and the psychologist considered that Katarzyna should
be allowed to meet her mother regularly but under supervision. Before
giving its second judgment on the issue of the first applicant's
access to her daughter the Administrative Court of Appeal held a
hearing. The Court heard an expert witness, the foster father and a
social welfare officer. They were all of the opinion that the first
applicant should have access but that it should be restricted.
Consequently, the Commission finds that also the decisions on
access 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 applicants also complain of a violation of Article 8 (Art. 8) of
the Convention in that the first applicant's access to the second
applicant was restricted by a social welfare officer subsequent to the
County Administrative Court's judgment of 24 September 1986, although
that court had ordered that there be no such restriction. The
applicants further complain that they had no effective remedy in this
regard and that accordingly there has been a breach of Article 13 (Art. 13) of
the Convention.
The Commission notes that this restriction, in obvious
contradiction to the Court's judgment, of the first applicant's right
of access was valid for two months, after which the Administrative
Court of Appeal had issued a new order concerning access. During this
period of two months the first applicant was allowed to visit her
daughter once a week for a few hours. The Commission furthermore
notes that the social welfare officer responsible for the decision to
restrict the first applicant's right of access was convicted for
negligence in office and sentenced to a fine. The judgment was, after
appeal, confirmed by the Göta Court of Appeal. The applicants' claim
for damages was separated from the criminal proceedings to be examined
in accordance with the procedure provided for in civil cases. This
civil case is still pending.
In these special circumstances the Commission considers that
the applicants can no longer claim to be victims of a violation of
the Convention with regard to these restrictions on access.
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.
3. The applicants have also invoked Article 6 (Art. 6) of the Convention.
The relevant part of the first paragraph of this provision 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 first applicant alleges a violation of her right to a fair
trial in that an expert witness of the courts, Dr. U.L., whose statement
was of great importance for the outcome of the care proceedings, was
biased. The applicants also allege a breach of Article 6 (Art. 6) of the
Convention in that their case was not determined by the Supreme
Administrative Court "within a reasonable time" and in that they were
not afforded a hearing before that court.
The Commission considers Article 6 para. 1 (Art. 6-1) of the Convention
to be applicable to the proceedings at issue.
With regard to the first applicant's allegation that she was
not afforded a fair trial the Commission recalls that, in accordance
with Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the parties in 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 that such errors might have involved a
possible violation of any of the rights or freedoms set out in the
Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,
236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).
In this respect the Commission first notes 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. The applicant has in no way
shown that these courts were biased.
As regards the procedure before these 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, and several witnesses were heard,
including experts who had issued medical certificates. There is no
indication that the applicant was prevented from presenting her
arguments and views to these courts or to the Supreme Administrative
Court or that the procedure was in any other respect unfair. The fact
taken alone that the doctor who had examined the second applicant when
she was brought to hospital and who had reported to the social
authorities what he suspected was maltreatment, was heard as an expert
witness, does not in the Commission's opinion render the proceedings
unfair. This could have been so only if it was established - which is
not the case - that the applicant had been prevented from putting
questions to him or calling a counter-expert to rebut his testimony
(cf. Olsson judgment, para. 89).
As regards the applicants' allegation that their case was not
determined by the Supreme Administrative Court within a reasonable time,
the Commission recalls that the Administrative Court of Appeal and the
Supreme Administrative Court delivered their judgments on 19 June 1986
and 22 December 1987, respectively.
The Commission notes that before the Supreme Administrative
Court examines the merits of a case there is a procedure whereby the
Court decides whether to grant leave to appeal. In the present case
the Court decided on 16 October 1986, before granting leave to appeal,
to obtain an opinion from the National Board on Health and Welfare.
The opinion was to be submitted to the Court before 24 November 1986,
a time-limit that subsequently, at the request of the Board, was
extended to 16 February 1987.
Considering the above, the extensive material before the
Supreme Administrative Court and the difficult and serious issue it
had to decide upon, the Commission finds that, although it is of great
importance that matters of this nature are dealt with swiftly, the
duration of the proceedings cannot be said to have exceeded a
"reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1).
Finally, concerning the applicants' allegation that the
refusal of their request for a hearing in the Supreme Administrative Court
constituted a violation of their rights under Article 6 para. 1 (Art. 6-1), the
Commission recalls that the European Court of Human Rights has considered an
oral hearing not to be necessary in a court of cassation whose task is limited
to an examination of whether the law has been correctly applied (Eur. Court
H.R., Axen judgment of 8 December 1983, Series A no. 72, Sutter judgment of 22
February 1984, Series A no. 74).
In the present case, the Commission notes that the Supreme
Administrative Court was the third degree of jurisdiction whose
examination followed upon the judgments given previously by the County
Administrative Court and the Administrative Court of Appeal. The task
of the Supreme Administrative Court in the Swedish legal system is
essentially to develop the case-law in administrative matters under
its jurisdiction. However, in the present case new evidence concerning
the merits was considered by the Court, namely, inter alia, the
above-mentioned opinion the Court obtained from the National Board of
Health and Welfare and an opinion of a doctor of the Children's
Medical Clinic of Paris.
The Commission recalls its decision in the case of Hardtmann
against Sweden (No. 12670/87, Dec. 10.3.88, to be published in D.R.)
in which a complaint that no hearing was held in the Supreme
Administrative Court was declared inadmissible on grounds relating
inter alia to the Court's task to develop case-law. The main question
for the Court to decide upon in that case was whether the applicant
had had a permanent place of business in Germany in the meaning of the
Swedish-German double taxation agreement, which essentially was a
question of legal qualification. It was clear in that case that,
since only the applicant had appealed, there was no question of the
Supreme Administrative Court giving a judgment more unfavourable to
the applicant than that of the Administrative Court of Appeal. Also
the fact that there had been a hearing before the County
Administrative Court was an important reason for declaring the case
inadmissible.
In the present case the Supreme Administrative Court had to
decide whether the lower courts had correctly assessed the situation
when deciding that the second applicant be taken into public care and
whether, in the circumstances, the girl should remain in care.
As mentioned above there were hearings in both the County
Administrative Court and the Administrative Court of Appeal. The
Commission notes that the Supreme Administrative Court, like in the
Hardtmann case, could not give a judgment more unfavourable to the
applicants than that of the Administrative Court of Appeal.
In these circumstances, and in view of the limited scope of
the new evidence submitted to the Supreme Administrative Court, the Commission
considers that the guarantees in Article 6 para. 1 (Art. 6-1) did not require
an oral hearing to be held also in the Supreme Administrative Court.
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.
4. The first applicant has also invoked Article 2 of Protocol No.
1 (P1-2) to the Convention which reads as follows:
"No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right
of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions."
The first applicant contends that her efforts to give her
daughter a catholic education are being obstructed.
However, there is no indication that the social authorities
are prohibiting Katarzyna from seeing a catholic priest. The
authorities have stated that a priest may visit the girl after
agreement with the foster parents. The foster father has stated
before the Administrative Court of Appeal that a priest is welcome to
visit the girl in the foster home. The Commission further notes that
the Court of Appeal, when deciding on the first applicant's right of
access, specially considered her possibilities to pray together with
Katarzyna. The Commission therefore finds that the first applicant's
allegation of a violation of Article 2 of Protocol No. 1 P1-2) to the
Convention is unsubstantiated.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicants also complain that their right under Article 25 (Art.
25) of the Convention to petition the Commission has been interfered with by
the refusal of the Legal Aid Appeals Board to grant legal aid for the purpose
of bringing the application before the Commission.
Article 25 para. 1 (Art. 25-1), second sentence, provides that those of
the High Contracting Parties who have recognised the right of individual
petition undertake not to hinder in any way the effective exercise of this
right. The Commission finds no indication that the applicants have been
hindered in the submission of their present application. Moreover, the
Commission considers that Article 25 (Art. 25) does not oblige Contracting
States to grant legal aid for the purpose of bringing an application under this
Article (cf. No. 11373/85, Eriksson v. Sweden, Dec. 11.5.87, to be published
in D.R.).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)