NYBERG v. SWEDEN



 

                      AS TO THE ADMISSIBILITY OF

 

                      Application No. 12574/86

                      by Birgitt and Lars Erik NYBERG

                      against Sweden

 

 

        The European Commission of Human Rights sitting in private

on 4 October 1988, the following members being present:

 

              MM. C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Sir  Basil HALL

             Mr.  C. L. ROZAKIS

             Mrs.  J. LIDDY

 

             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 9 June 1986

by Birgitt and Lars Erik NYBERG against Sweden and registered

on 2 December 1986 under file No. 12574/86;

 

        Having regard to:

 

-       the first report provided for in Rule 40 of the Rules of

        Procedure of the Commission;

 

-       the Government's written observations dated 4 September 1987;

 

-       the applicants' written observations in reply dated

        17 November 1987;

 

-       the second report provided for in Rule 40 of the Rules of

        Procedure of the Commission;

 

-       the submissions of the parties at the hearing on

        4 October 1988;

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The facts of the case, as they appear from the parties'

submissions, may be summarised as follows:

 

        The applicants are Mr. and Mrs.  Nyberg, born in 1944 and 1954

respectively.  Mr.  Nyberg is a Swedish citizen and Mrs.  Nyberg is a

German citizen.  They reside at Neukirchen-Vluyn in the Federal

Republic of Germany.  Before the Commission the applicants are

represented by Mr.  Lennart Hane, a lawyer practising in Stockholm.

 

        The applicants have two sons: Björn born in 1981 and Ralf

born in 1984.

 

        On 3 December 1981 the Social District Council No. 6 (sociala

distriktsnämnden nr. 6) in Stockholm decided to take Björn into care

pursuant to Sections 25 (a) and 29 of the 1960 Act on Child Welfare

(barnavårdslagen).  On 23 February 1982 the County Administrative

Court (länsrätten) of Stockholm decided to take Björn into care under

Section 1 para. 2 sub-para. 1 of the 1980 Act with Special Provisions

on the Care of Young Persons (lagen med särskilda bestämmelser om vård

av unga).  The reasons for the care order were that the mental state

of the parents involved a danger to Björn's development.  Björn was

placed in a foster home at Skirebo outside Jönköping on 8 October 1982.

 

        On 25 October 1982 the applicants submitted a request to the

Social Council that the care of their son be terminated.  The request

was rejected by the Council on 16 June 1983.  The applicants' appeals

to the County Administrative Court, the Administrative Court of

Appeal (kammarrätten) and the Supreme Administrative Court

(regeringsrätten) were unsuccessful.  The Supreme Administrative

Court refused leave to appeal on 12 January 1984.

 

        On 5 July 1984 the applicants introduced an application

(No. 11180/84) before the Commission alleging inter alia that the

refusal to return their son to them was a breach of Article 8 of the

Convention.  After having obtained the Government's and the

applicants' written observations on the admissibility and merits of

the application, the Commission declared the application inadmissible

on 5 March 1986.  The Commission stated in its decision that the

refusal to terminate the care order, although constituting an

interference with the applicants' rights under Article 8 para. 1 of

the Convention, was justified under the terms of paragraph 2 of

Article 8 as being necessary in a democratic society for the

protection of the health and rights of others.

 

        On 11 September 1984 the applicants requested the Social

District Council No. 6 in Stockholm to make arrangements in order to

establish contacts on a regular basis between the applicants and their

son Björn.  They suggested that meetings should be arranged at least

twice a month with a view to reuniting Björn with his parents.

 

        On the same day the County Administrative Board

(länsstyrelsen) of the County of Stockholm asked for the Social

Council's opinion on account of the applicants' request for an

extended right to contact with their son.  On 29 November 1984 the

Social Council in its opinion to the County Administrative Board

stated that the applicants should be given the opportunity to meet

their son every five weeks.  The Social Council did not make a

decision under Section 16 of the 1980 Act with Special Provisions on

the Care of Young Persons, which regulates the right of parents to

have contact with a child taken into public care.

 

        The applicants complained to the County Administrative Board

which on 7 March 1985 instructed the Social Council to investigate and

decide the matter urgently.  The County Administrative Board

emphasised that it was important that the Social Council, in case its

opinion differed from that of the parents as to the frequency of their

contact with the child, make a decision under Section 16 of the 1980

Act.  As the parents can appeal against such a decision it gives them

the opportunity of having the question decided by a court.

 

        From the investigation made by the social authorities, which

was completed on 24 September 1985, it appears that in November 1983

the parents complained that they were not allowed to see Björn often

enough.  It also appears that attempts at that time were made to reach

the applicants by telephone but with no result since their telephone

had been disconnected.  In December 1983 the applicants did not turn

up at a meeting with Björn since Mrs.  Nyberg who was pregnant had gone

to Germany to give birth to the child.  In July 1984 Björn's foster

parents received a post card from the applicants saying that they had

returned to Sweden and wanted to meet Björn as soon as possible.

During their stay in Germany they had written a few letters to Björn

and had talked to him over the telephone on a few occasions.  The

applicants met with Björn in September 1984.  It was then decided that

they should see him every five weeks.

 

        On 3 October 1985 the Social Council decided that Björn could

meet his parents one day every three weeks at a place chosen by Björn's

parents but not at the foster home, and that a special contact person

(kontaktman) should be present at the meetings.

 

        On 19 December 1985 the Social Council reviewed that decision.

A new investigation had been carried out in which it was concluded

that Björn's frequent visits to his parents in Stockholm affected him

negatively.  Since the Social Council's decision Björn had visited the

applicants on three occasions together with a contact person.  The

Council now decided that the meetings should take place every three

weeks, alternately at the parents' home and the foster parents' home.

 

        In January 1986 the applicants brought an appeal against that

decision but withdrew it in view of the Council's decision to terminate

the public care of Björn.

 

        In the meantime, on 19 October 1984, the applicants submitted

a further request to the Social Council that the care of the son be

terminated.  On 23 January 1985 the Council requested a child

psychiatric opinion which was received on 23 June 1985.  The Council

also found it necessary to supplement the investigation with a

psychiatric opinion on the applicants and requested such an opinion in

April 1985.  The opinion dated 7 June 1985 was received by the Council

in June 1985.  It was issued by an assistant chief doctor at the

Enskede Skarpnäck Psychiatric Institute.

 

        The child psychiatric opinion, which was issued among others by

a specialist in child psychiatry at the Children's and Juveniles'

Psychiatric Clinic of Jönköping, was criticised by the applicants

and withdrawn by the doctors who issued it.  A new opinion based on a

new investigation was issued by a chief doctor and a qualified

psychologist at the Clinic on 9 September 1985.  The applicants did

not participate in the latter investigation which thus concentrated on

Björn's development.  Since the two opinions contained completely

different conclusions, the Social Council decided to ask the National

Board of Health and Welfare (socialstyrelsen) for a new assessment of

the child.  On 15 November 1985, the National Board replied that it

could not make such assessments.  The Social Council then decided to

ask the National Board for an assessment of the child psychiatric

opinion of 9 September 1985 in order to obtain an opinion as to whether

further psychiatric examinations were necessary.  On 27 January 1986

the National Board replied that the investigation which was at the

basis of the opinion was sufficient for an assessment as to what was

in the best interest of the child.

 

        The social investigation made subsequent to the request

that the public care of Björn should be terminated was completed on

23 January 1986.  The conclusion of the investigation was that there

were no longer sufficient reasons to uphold the public care order

concerning Björn.  It was found, however, that there was a

considerable risk that Björn's health and development could be

seriously damaged if Björn was separated from his foster parents.

 

        On 6 February 1986 the Social Council decided to terminate the

care of Björn and to issue a prohibition for the applicants to

separate Björn from the foster home where he was living.  The latter

decision was taken pursuant to Section 28 of the Social Services Act

(socialtjänstlagen).

 

        This section provides, in its first paragraph:

 

        (Swedish)

 

"Socialnämnden får för viss tid eller tills vidare förbjuda

den som har vårdnaden om en underårig att ta denne från ett

hem som avses i 25 §, om det finns risk som inte är ringa för

att barnets kroppsliga eller själsliga hälsa skadas om det

skiljs från hemmet."

 

(English translation)

 

"The Social District Council may for a certain period of time,

or until further notice, prohibit the custodian of a minor

from taking the minor away from a (foster home), if there is a

risk, which is not of a minor nature, of harming the child's

physical or mental health if the child is separated from that

home."

 

        The said prohibition was valid until further notice.  The

Council expressed the opinion that it was important to create good

opportunities for Björn to build up and develop a relationship of

confidence with the applicants.

 

        The applicants appealed to the County Administrative Court

against the decision regarding the prohibition on removal

(flyttningsförbud).  Following a hearing before the Court on 28 May

1986, the Court, in a judgment of 6 June 1986, confirmed the

prohibition on removal, but ordered that it should only apply until

15 December 1986.  In the judgment the following reasons are stated:

 

"On the basis of the investigation in the case, the Court

finds, inter alia, the following facts established.  Björn was

placed on 8 October 1982 in the foster home of the spouses

Maud and Göran Henriksson in Skirebo outside Jönköping.  In

the home there is, apart from the spouses, a foster brother

who is four years older than Björn.  There is no indication in

the case that Björn has received other than the best possible

care in the foster home.  As regards the spouses Nyberg a

durable stabilisation appears to have occurred as regards

their mental health.  Birgitt Nyberg works as a home assistant

and Lars Erik Nyberg receives sickness benefits.  He has

regular contact with a psychiatric care centre for medication.

Björn's younger brother Ralf, born on 14 January 1984, lives

with the spouses Nyberg.  Lars Erik Nyberg takes care of Ralf

during the day while Birgitt Nyberg works.  The spouses'

ability to function as parents has been shown by Ralf's

favourable development.  It is undisputed in the case that

the spouses would be able to take care of and foster Björn.

Birgitt Nyberg had the responsibility for the care of Björn

during his first eight months.  Thereafter the separation

from the mother took place as a result of her sudden

sickness.  After the separation the spouses, in particular

Birgitt Nyberg, endeavoured to maintain contact with Björn.

A couple of lengthy interruptions have occurred in the

contact when the spouses Nyberg stayed in the Federal

Republic of Germany.  In 1986 some contact occurred between

Björn and his parents.  Björn has slept overnight once in his

parents' home.  No contact could take place in May.

 

The Social Council has invoked a statement from the

Children's and Juveniles' Clinic of the Central Hospital of

Jönköping dated 9 September 1985 concerning Björn.  In the

statement the investigators, the chief doctor, Ingrid

Laurell, and the qualified psychologist, John-Erik Ottosson,

consider that Björn is in all respects a normally developed

boy.  He has no child neurotic disturbances.  Emotionally he

is secure and settled in his foster family where he has

spent almost three-quarters of his life.  As a result of

Björn's young age it is, of course, evident that his

security and identity are attached to the foster parents.

According to the investigators' opinion, there ought to be

very strong reasons for moving him from the foster home,

having regard to the long time he has lived there and the

connection he has.

 

In the investigators' opinion there is a risk which is not

of a minor nature that Björn's mental development will be

jeopardised by his removal from the foster home, if it is

not ascertained in advance that Björn's relationship with

the natural parents is of such a nature that Björn can

identify them as alternative psychological parents along

with the foster parents.

 

In a statement of 27 January 1986 the National Board of

Health and Welfare expressed its opinion on the position

taken by the Children's and Juveniles' Psychiatric Clinic

of Jönköping that Björn should not be removed from his

foster parents.  In the opinion of the National Board

this position is well-founded on the basis of knowledge of

children's development and needs as applied to Björn's

special situation.  The National Board has considered that

Björn, if he is moved from the foster home, will be

subjected to a risk of damage to his mental health and

development which is not to be considered as being only of a

minor nature.  It is desirable that he should be allowed to

stay in the foster home.  The National Board of Health and

Welfare considers that Section 28 of the Social Services Act

is applicable.

 

The spouses Nyberg have invoked a certificate by the

certified psychologist Lars Billing.

 

In a statement the County Administrative Board of the

County of Stockholm took the view in brief that it is

at present not possible to move Björn to his natural

parents and that, therefore, a prohibition pursuant to

Section 28 of the Social Services Act ought to be

maintained but that preparatory measures ought to be

taken in order to reunite Björn with his parents.

 

At the request of the spouses Nyberg, evidence has been

given by a psychiatrist in private practice, Olle

Björkström, the certified medical doctor Gunnel Hörnqvist,

and the certified nurse Nancy de Sousa.

 

Björkström has in essence said the following: As the

situation now is with the defective contacts Björn has had

with Birgitt Nyberg, it is a fact that the foster parents

are Björn's primary and psychological parents.  Björn's

solidarity is with them.  It would be very strenuous for

Björn if he were to move home to his biological parents.

His primary parent-child relationship would then be broken,

which would imply a great trauma for him.

 

Hörnqvist has considered that the spouses Nyberg would

manage to take care of Björn and to tackle the problems

which would arise if he moved home.  Hörnqvist considers

that Björn has a living contact and a deep relationship

with, in particular, Birgitt Nyberg.  It would therefore not

be a serious risk if Björn came home.

 

Nancy de Sousa met Björn in September 1984 and March 1986

during his visits to the spouses Nyberg.  She indicated what

she saw during these visits and stated that they were

favourable and without any problems.

 

The Deputy Chief Doctor Frank Ståhl at the Sankt Göran's

hospital, who is a specialist in children's and juvenile

psychiatry, has been heard as an expert.  Ståhl stated mainly

the following:  As a result of the separations during Björn's

first years, he is more sensitive than others to a break-up

from the environment in which he now finds himself, and it

involves as such a considerable risk of damage to his

psychological health, which is not of a minor nature.  The

foster parents are the most important persons for Björn in his

life.  Birgitt Nyberg does not sufficiently understand

Björn's need of his foster parents.  Björn is now settled in

the foster home and to move him would involve strain.  Björn

must now get a clear message as to where he belongs.  It is

important that he may have a relationship with his natural

parents.  What is at present particularly damaging for Björn

is the conflict between the foster parents and the natural

parents.

 

Under Section 28 of the Social Service Act the Social

Council may, when the child's best interests so require, for

a certain period, or until further notice, prohibit the

person who has the care of the minor from taking the child

away from a foster home if there is a risk which is not

considered to be of a minor nature that the child's physical

or mental health would be jeopardised if he is separated

from the home.  Only a temporary disturbance or any other

temporary inconvenience is not a sufficient reason for

issuing a prohibition.  When placing a child in a foster

home the normal objective should be the reunification of the

natural parents and the child.  A prohibition under Section

28 of the Social Services Act ought to be seen as a

temporary measure, valid until such time as a child, without

risk for any damage which is indicated in the said

prohibition, can be separated from the foster home.  The

facts which should be considered in cases concerning

prohibitions on removal are inter alia the child's age, his

or her degree of development, abilities and emotional

relationships, the time the child has been cared for in

other places than with the parents, the present living

conditions of the child, and those which he or she would

have after a removal, as well as the contact between the

parents and the child during the time they have been

separated.

 

The County Administrative Court makes the following assessment.

 

Björn will be 5 years old in September.  During his first

eight months he stayed with Birgitt Nyberg.  As from the age

of one year he has lived in the foster home.  The spouses

Nyberg's suitability to take care of Björn is not

questioned.  Since the circumstances which led to Björn

being placed in the foster home have ceased to exist, the

aim must be that Björn should be reunited with his parents.

 

The experts who have submitted their opinions in the case

have by and large jointly expressed themselves against

Björn's removal to the natural parents.  They have based

themselves on the emotional bond which has arisen between

Björn and the foster parents and the long time he has lived

in the foster home.  The facts of the case show that the

spouses Nyberg have maintained contact with Björn but that

the contact has been made more difficult during recent

times.  There is now a situation filled with conflicts

between the spouses Nyberg and the foster parents which is

to Björn's detriment.  The Court finds it established in

the case that there is a risk, which is not of a minor

nature, that Björn's mental health would be jeopardised

if he were now separated from the foster home.  The

prohibition on removal should therefore at present be

maintained.

 

Irrespective of whether a prohibition on removal is limited

in time or not, it is the obligation of the Social Council

to see to it that appropriate preparations are made promptly

with a view to the reunification in order that the child

should not become more attached to the family which it

should leave.  From the facts of the case it appears that

Björn is a normally developed boy without any disturbances.

If he does not in the near future live with his natural

parents and his brother, the prohibition on removal can, in

the long run, turn out to be in conflict with Björn's best

interests.  The County Administrative Court considers that

if Björn as soon as possible receives a clear message that

after a certain time he should move home to his parents and

his brother and that preparations are made with frequent

contacts with his parents, Björn would not run any risk of

more than temporary disturbances when moving.  The conflicts

between the foster parents and the spouses Nyberg must not

be an absolute impediment to active measures of preparations

for Björn's removal.  Making an overall assessment, the

County Administrative Court finds that there are reasons

to limit the prohibition on removal in time for no longer

than half a year.  The Court takes it for granted that the

Social Council will actively further the reunification of

Björn and the natural parents and that the Council will

intensify its work in this respect.  Great responsibility is

incumbent upon the foster parents.  They must participate

positively and actively and help and support Björn.  The

spouses Nyberg and the foster parents must try to reach

agreement and see to the best interests of Björn."

 

        Both the applicants and the Social Council appealed to the

Administrative Court of Appeal of Stockholm.  The Court held a hearing

in the case on 17 September 1986 and delivered judgment on

7 October 1986.  The Court ordered that the prohibition on removal

should apply no longer than to 1 March 1987.  In the reasons for its

judgment the Court stated inter alia the following:

 

"The Administrative Court of Appeal finds, as did the

County Administrative Court, that there is a risk which is

not of a minor nature that Björn's health and development

would be jeopardised if he immediately were to move from the

foster home.  The County Administrative Court has

therefore had reasons to issue a prohibition on removal.

 

From the investigation in the case it appears that the

contacts between the parents and the child have been good

most of the time when Björn lived in the foster home.  It

furthermore appears from the investigation, inter alia from

the testimony of Dr.  Hörnqvist, that it has been possible to

maintain a rather deep emotional contact between Björn and,

in the first place, his mother, during the time he has

stayed in the foster home.  In view of this, and having

regard to the other facts of the case, there is reason to

believe that it is possible to arrange for a relatively

quick reunification without there being any risk for Björn's

health.

 

When deciding on the date until which the prohibition on

removal should be valid, it must be kept in mind that Björn,

on some occasions, has shown that he does not wish to visit

the parents and that two visits in May 1986 could not take

place as a result of his refusal to follow them to

Stockholm.  It should further be observed that Björn has not

met his parents since the end of May 1986.  On the other

hand, great importance must be attached to the fact that

Björn, according to the medical certificates which have been

invoked in the case, is in all respects a normally developed

child both physically and mentally.

 

The measures taken by the Social Council so far, in order to

create the basis for a reunification between Björn and his

natural parents, have been insufficient.  Thus it must be

considered that the occasions on which there have been

contacts between them have been too few and too short and

that, also in other respects, they have been designed in a

way which has not been favourable to strengthening the links

between Björn and his parents.  Nor has sufficient regard

been had to the conflicts which have arisen between, in

particular, Birgitt Nyberg and the foster parents.  The

Administrative Court of Appeal takes it for granted that the

Social Council, in pursuing the objective of reuniting Björn

with his natural parents will, through different measures,

intensify its work in this respect.  Furthermore, the Court

also takes it for granted that the spouses Nyberg will

completely and fully co-operate in order to make the removal

as smooth as possible for Björn and that the foster parents

will also co-operate for this purpose.

 

In view of what has been said above, the Court finds that

some further time is necessary for the preparatory measures

before the prohibition on removal can be terminated."

 

        The applicants and the Social Council appealed to the Supreme

Administrative Court, which in a decision of 7 November 1986 refused

to grant leave to appeal.

 

        Following complaints from the applicants the Parliamentary

Ombudsman (justitieombudsmannen) stated in a decision of 19 June 1986

that the Social Council's examination of the applicants' request for

an extended right of contact with Björn had been unduly long (more

than one year), thereby depriving the applicants of the right to have

this request examined by a court, and that the fact that the

applicants' request for a termination of the care order had only been

dealt with after almost one and a half years was unacceptable.

 

        On 18 December 1986 the Social Council decided to institute

civil proceedings before the Stockholm District Court (tingsrätt)

requesting that the legal custody of Björn be transferred from the

applicants to the foster parents in accordance with Chapter 6 Section

8 of the Parental Code (föräldrabalken).  The Social Council invoked

an investigation, made by a welfare officer, of 5 December 1986 and the

written consent of the foster parents.  In the Social Council's

application for a summons, dated 25 November 1986, it is stated that

there was a risk that Björn's mental health would be harmed if he was

separated from his foster parents and that it would obviously be in

his best interests to stay with them.

 

        In the investigation it is inter alia stated that Björn,

during the period January 1986 to May 1986, by strong emotional

reactions in connection with the meetings with his parents, showed

that he did not want to see them.  The following conclusion was

reached:

 

"Even though Birgitt Nyberg has been Björn's primary

parental figure for the first eight months of his life,

through his long separation from her, Björn has lost an

essential part of his emotional attachment to her.  For

natural reasons Björn is identifying himself with his foster

parents and feels that he belongs in his foster family.  A

separation from the foster parents would inevitably involve

a crisis for Björn."

 

        On 26 January 1987 the applicants applied to the County

Administrative Court for the enforcement of the return to them of

their son Björn in accordance with the provisions of Chapter 21 of the

Parental Code.

 

        On 30 January 1987 the County Administrative Court of

Jönköping ordered that the Head of Section at the social authorities

of Jönköping, Mrs.  Ingrid Westerlund-Henja, should try to achieve a

voluntary transfer of the child from his foster parents to the

applicants.

 

        On 9 February 1987 the Social Council requested the District

Court to transfer, by a provisional decision, the legal custody of

Björn to the foster parents.  The reasons given for the request was

the applicants' application of 26 January 1987 for the enforcement of

the return to them of Björn and the fact that according to the Social

Council they had not, in the way the Administrative Court of Appeal of

Stockholm had provided in its judgment of 7 October 1986, completely

co-operated in order to make the removal as smooth as possible for

Björn.

 

        On 23 February 1987 the Social Council requested an opinion

from the Children's and Juveniles' Psychiatric Clinic of Jönköping

as to whether Björn would be able to endure the meetings with his

parents without becoming mentally injured.  In the opinion, which was

issued on 25 February 1987 by the doctors who had issued the opinion

of 9 September 1985, the following was stated:

 

"Since measures to create contact have not been brought

about until 3 February 1987, in spite of the judgment of

the Administrative Court of Appeal of 7 October 1986, it has

been necessary under considerable lack of time and in a

doubtful manner to try to create contact between Björn and

his natural parents in such a way that, in our opinion,

it has not facilitated Björn's attachment to his natural

parents.  To continue trying to create contact in the

same manner is considered by the under-signed to be

directly harmful to Björn's mental health and development.

...

It is our unambiguous opinion that until a functioning

contact and a positive attachment can be brought about

between Björn and his natural parents and all those

involved have done what is possible to help Björn with the

separation from the foster parents, who naturally are his

psychological parents, a transfer of Björn to his natural

parents will bring about an apparent risk that Björn's

mental health and development will be seriously harmed."

 

        In view of this certificate the Chairman of the Social Council

decided on 26 February 1987 to issue a new prohibition on removal, this

time valid until further notice.

 

        On 5 March 1987 the Social Council provisionally upheld the

Chairman's decision.

 

        On 10 March 1987 the County Administrative Court held a

hearing in the case concerning enforcement under Chapter 21 of the

Parental Code and on 16 March 1987 it delivered judgment.  The

applicants' request for enforcement was granted.  The Court ordered

that the child be temporarily placed for a maximum of five days at the

Children's and Juveniles' Psychiatric Clinic of Jönköping and that

thereafter the child should be transferred to the applicants.  The

foster parents were ordered to leave the child with the Clinic not

later than 24 March at 10.00 hours.  In the judgment the following

reasons are indicated:

 

"In the situation which is at hand in the present case, the

Court may under Chapter 21 Section 7 second paragraph of the

Parental Code refuse enforcement if, in view of the child's

best interest, it is necessary that the question of the

legal custody of the child be examined by an ordinary court.

 

It appears from the investigation that (the applicants),

with some exceptions, have had continuous and good contact

with Björn and that they have all the time had the intention

of taking care of him themselves.  In view of this and of the

 

other facts, there is no obstacle to the enforcement on the

ground that it would be necessary to re-examine the question

of the legal custody of Björn.  The fact that proceedings

concerning this question are now pending does not affect this

conclusion.

 

It can be established that the preparatory measures which

according to the judgment of the Administrative Court of

Appeal were necessary in order to terminate the prohibition

on removal have not been implemented to the extent or in the

manner envisaged.  The Social Council's measure to request

before the District Court a transfer of the custody of Björn

within a rather short time after the judgment of the

Administrative Court of Appeal appears remarkable and has not

been designed to facilitate the preparatory measures.  The

manner in which contacts took place between Björn and his

natural parents during the month of February did not

facilitate his relations to them either.

 

At least during the last year there has been a conflict

between the natural parents and the foster parents.  The

conflict has become worse recently.  In the opinion of the

Court the result is that it will presumably be very

difficult to achieve Björn's gradual adaptation to his

natural parents as intended in the judgments concerning the

prohibition on removal.

 

The issue in the case is therefore whether nevertheless the

conditions for enforcement are fulfilled.  According to

Chapter 21 Section 6 second paragraph of the Parental Code,

the County Administrative Court may refuse enforcement if

there is a risk, which is not of a minor character, that the

child's bodily or mental health may be harmed.  In that

context not only should the risks of the actual transfer and

the resulting problems of adaptation be taken into account,

but also what in the long run must be considered to be in

the best interest of the child.   In view of the statements

of Mrs.  Ingrid Laurell and Mr.  John Erik Ottosson and the

other facts, it appears clear that there is a risk that

Björn's mental health might be harmed by a transfer.  In the

case before the County Administrative Court of Stockholm

concerning prohibition on removal the expert on children's

and juveniles' psychiatry, Mr.  Frank Ståhl, stated inter

alia that Björn must receive a clear message as to where he

belongs and that what is most harmful to him is the conflict

between the foster parents and the natural parents.  The

Court concurs with this opinion.  There is thus also a risk

that Björn's mental health may be harmed if the conflict and

the uncertainty as to where he belongs continue.

 

Björn, who is not yet six years old, is a normally developed

boy.  It is established that there were previously good

contacts between him and his natural parents.  The certified

doctor Mrs.  Gunnel Hörnqvist stated in the case concerning

the prohibition on removal that Björn had close contact and

deep relations, in particular with Mrs.  Nyberg.  Even if the

 

contact between them has not been so good in the special

circumstances which have prevailed recently, there is good

reason to believe that the previous good relations will be

restored.  The numerous proceedings which have been instituted

and which are still going on concerning Björn have resulted in

great strain for all the parties involved, and have evidently

worsened the conflict between the natural parents and the

foster parents.  This, of course, affects Björn.  It must,

from his point of view, be important to terminate the 'fight'

over him.  As long as he stays in the foster home it is likely

that the 'fight' will continue.

 

The natural parents have, of course, a justified claim to

have their child back.  As has been said above, it appears

impossible to achieve Björn's gradual adaptation to them.

Making an overall assessment of the risk to him which a

transfer would involve compared to the risks which continued

uncertainty and continued conflicts would involve, the Court

finds that the most weighty arguments are in favour of

enforcement now."

 

        On 19 March 1987 the Social District Council decided, thereby

confirming their provisional decision of 5 March 1987, to prohibit the

applicants from moving Björn from the foster home since there was a

risk which was not of a minor character that Björn's mental health and

development would be harmed if he was separated from the foster home.

The decision was based on an investigation made by Social District

Council No. 6 in Stockholm and completed on 9 March 1987.  The

investigation contains a report on the different occasions in February

1987 when Björn met his parents.  In the investigation it is stated

inter alia that when the meetings started Björn had not seen his

parents since June 1987, that the conditions at the meetings had been

strained particularly for Björn, that Birgitt Nyberg had stated that

she found it hard to establish a good contact with Björn when the

welfare officers were present and that the scheduled meetings were

interrupted on 25 February 1987 after a recommendation from the

Children's and Juveniles' Psychiatric Clinic in Jönköping.

 

        Both the applicants and the foster parents appealed to the

Administrative Court of Appeal against the judgment of the County

Administrative Court of 16 March 1987.  Before the Administrative

Court of Appeal preparatory sessions were held in order to try to

solve the dispute on a voluntary basis.  In the course of these

sessions the parties agreed to co-operate for the purpose of

transferring Björn to the applicants.  The foster parents promised to

endeavour to have the case on legal custody before the District Court

withdrawn.  Mrs.  Nyberg promised to endeavour to have a police report

in Germany against the foster father withdrawn.  Following these

sessions the Administrative Court of Appeal of Jönköping decided on

1 April 1987 to adjourn its examination of the case.

 

        On 2 April 1987 the Social Council decided to maintain its

action before the District Court of Stockholm concerning the transfer

of the legal custody of Björn from the applicants to the foster

parents and to maintain the prohibition on removal under Section 28 of

the Social Services Act.  The decision was not unanimous and the

chairman expressed a separate opinion.

 

        On 3 April 1987 the foster parents wrote a letter to the

District Court repeating the agreement reached with the natural

parents before the Administrative Court of Appeal and expressed their

surprise over the Social Council's decision.

 

        On 15 April 1987 the Social Council decided to withdraw its

action before the District Court concerning the transfer of the legal

custody and to revoke the prohibition on removal.  The application

before the District Court was withdrawn by the Social Council on

21 April 1987 and removed from the Court's case list on 13 July 1987.

 

        The applicants claimed that the District Court should oblige

the Council to pay their legal costs.  The reason given for this was

that the Council intentionally or by neglect had caused unnecessary

proceedings.  The Court rejected the applicants' claim.  The applicants

appealed to the Court of Appeal, which found that there were special

reasons to oblige the Council to pay their legal costs since the

Council withdrew its action after a considerable delay.

 

        The social authority covered the foster parents' costs for

legal aid in the custody proceedings out of its expense account.  This

was decided on 26 March and 26 May 1987 by two social welfare

officers.

 

        On 21 April 1987 the foster parents and Björn arrived at the

applicants' home at Neukirchen.  On 23 April the foster parents left

Björn with the applicants and the family is since then re-united.

 

        On 14 May 1987 the Administrative Court of Appeal removed the

case concerning the enforcement of the return of Björn to his parents

from its list of cases.

 

                -------------------------------------

 

        Previously, on 29 May 1986, the applicants had been allowed to

meet their son Björn for the day in order to have some contact with

him.  In view of the fact that the child's grandmother had not had the

opportunity of meeting the child for a long time, the parents decided,

thereby violating the conditions for the right of contact with the

child, to travel to the Federal Republic of Germany on a visit and

took the child with them.

 

        When the foster mother came to pick up Björn at his parents'

home in the evening nobody was there.  She informed the social

authorities.

 

        On 29 May 1986 the Deputy Chairman of the Social Council

decided to take Björn into public care and to ask for assistance from

the police authority in order to have the decision enforced.  The

applicants were reported to the police for having taken Björn away

without permission, but no action was taken against them.

 

        The social authorities contacted the Ministry for Foreign

Affairs in order to find out if there was any possibility to have

Björn returned to Sweden and were informed that there were no treaties

or conventions between Sweden and Germany regarding a situation like

the one in question.

 

        On 30 May 1986 the foster parents talked to Björn's father

over the telephone.  They were informed that Björn's parents intended

to spend some time in Germany.

 

        On 31 May 1986 the foster father went to Germany with a

friend.  Before he left he had contact with one of the social welfare

officers dealing with the case of Björn.  She ordered air tickets, in

the social authority's name, for the foster father and his brother.

She also ordered return tickets, including one for Björn.  She booked

tickets on a flight to Amsterdam.  The bill was sent to the social

authority but forwarded to the foster parents.  The reason why the

social welfare officer helped to book the tickets was that it was

Saturday and the foster father could not raise the money needed for

the trip.  She also understood that the foster parents were concerned

about Björn.  It is disputed between the parties whether the

authorities were aware of the foster father's intention to take Björn

away from the applicants.

 

        The foster father arrived at Neukirchen-Vluyn, where Björn

was staying with the applicants, on 31 May 1986.  On the following day,

late in the afternoon, the applicants took a walk with their two sons.

A car approached them from behind.  Out of the car came the foster

father, apprehended Björn and took him into the car, which then

disappeared quickly.  Thereafter the foster father went to Sweden with

Björn via Amsterdam.

 

        This incident was reported to the police.  On 1 August 1986

the Regional Prosecutor (regionåklagaren) of Jönköping decided not to

institute criminal proceedings since it was considered that the foster

father's action was founded on his care for Björn and that criminal

proceedings were not required in the general interest.  In view of

this decision no investigation was initiated by the prosecutor

regarding the officials at the Social District Council.  Upon appeal the

Prosecutor-General (riksåklagaren) saw no reason to amend the decision

of the Regional Prosecutor and on 27 October 1986 he decided not to

take any action.

 

        When Björn had returned to Sweden the foster parents paid the

money back that the social authorities had advanced for the air

ticket.

 

        A social welfare officer on 10 June 1986 decided to grant the

foster parents an allowance of 5,825 SEK. The only note made about the

allowance was that it was a special measure of support.  When asked

about the allowance by the Parliamentary Ombudsman, in the course of

her investigation, the social welfare officer said that it was a

special measure of support in view of the difficulties the foster

parents experienced when Björn had returned to them.  In an application

for compensation to the foster parents for their travel expenses,

submitted by the social authority to the Berg-Rolanska Foundation, it

appears that the entire cost for the travel, including air tickets,

hotel and a rented car, was 12,825 SEK and that the social authority

had granted an allowance of 5,825 SEK. The foster parents had their

expenses fully covered by financial contributions from the Swedish

Save the Children Federation and from the Berg-Rolanska Foundation.

 

                -------------------------------------

 

        On 24 May 1988 the Parliamentary Ombudsman took a decision

concerning the social welfare officers' and the Social District

Council's handling of Björn's case from 29 May 1986 and onwards.

 

        The Ombudsman considered that the assistance by the social

welfare officer was crucial when Björn's return to Sweden was brought

about and that it cannot be accepted that the social authorities

facilitate illegal actions.  However, she did not find it substantiated

that the social welfare officer's intention when assisting the foster

father was that he should take Björn back to Sweden but she seriously

criticised the action of the social authorities.

 

        The Ombudsman further considered that, whether the

contribution of 5,825 SEK to the foster parents was supposed to cover

their travel expenses or not, the social authority had through its

actions, after the foster father had brought Björn back, shown that it

supported his action.  She found this inappropriate.

 

        From the Ombudsman's investigation it appears that the reasons

the social authorities have given for the decision of the chairman of

29 May 1986 to take Björn into care on a provisional basis were, inter

alia, that the social authorities wanted to make it possible to ask

for assistance from the police to bring Björn back to Sweden, that

Björn's parents, by abruptly separating him from the foster parents,

had shown that they lacked understanding for his needs, that they had

prevented the preparation for their reunification with Björn as it had

been envisaged by the County Administrative Court in its judgment on

prohibition on removal and, finally, that Björn's strong reactions

when he met his parents in spring 1986 might be detrimental to his

health and development.

 

        In this respect the Ombudsman pointed out that only the last

reason was valid and that it was not likely that the provisional care

decision would have been upheld by the County Administrative Court.

She did not pursue the issue as the decision was never enforced.  She

added that the decision ought to have been brought before the Council

for re-examination when it had a meeting a few days later and Björn

was back in Sweden.  This was never done.

 

        As for the remaining part of the examination the Ombudsman has

stressed that the Social District Council, in view of the judgments of

the Courts on 6 June and 7 October 1986, was under a special

obligation - besides what normally rests with a social authority in

this regard - to be active in seeing to it that contacts were created

between the child and his natural parents.  She found no indication

that serious efforts were made in order to improve the relations to

the natural parents.  On the contrary, she said, the application of

December 1986, for having the custody of Björn transferred to the

foster parents, proved that the Social District Council had taken the

view that Björn was not to be reunited with his parents.  For this she

expressed strong criticism.

 

        She further could not accept the subsequent measures such as

the decision on a new prohibition on removal concerning Björn taken a

few days before he should be returned to his parents according to the

judgment of the Administrative Court of Appeal of 7 October 1986, the

fact that the social authority covered the foster parents' costs for

legal aid in the custody proceedings and the decision of the Social

Council of 2 April 1987 to maintain the action on transfer of custody

and the prohibition on removal.  The latter decision was contrary to

the judgment of the County Administrative Court of 16 March 1987,

according to which Björn should be returned to his parents.

 

        Generally the Ombudsman observed that the handling of the case

showed that the social welfare officers had engaged themselves

strongly in it for the benefit of the foster parents.  She found it

doubtful whether the Social District Council and the social welfare

officers realised that respect for court decisions is a fundamental

and indispensable requirement of legal security.

 

Further particulars concerning the contacts between the applicants

and Björn

 

        During Björn's first year in the foster home Mrs.  Nyberg

visited him once a month.  Every second time she visited him she was

accompanied by Lars Erik Nyberg and the visit lasted for a day, and

every second time she came alone and the visit lasted two days.  After

some time the spouses Nyberg visited Björn together every sixth week.

 

        During the period 4 November 1983 to 23 September 1984 the

applicants did not meet Björn as they had gone to Germany in order for

Mrs.  Nyberg to give birth to their second child.  They met Björn again

on 23 September 1984.

 

        In the period between their request of 19 October 1984 that

the care of Björn be terminated, and the decision of the Social

Council of 6 February 1986 to terminate the care, the applicants met

Björn on the following occasions, alternately in their home and at

the foster parents' home:

 

        4 November 1984                         14 August 1985

        22-23 December 1984                     19 October 1985

        2 February 1985                         7 November 1985

        13 March 1985                           1 December 1985

        22 April 1985                           21 December 1985

        2 June 1985                             12 January 1986

        12-13 July 1985

 

        After the care had been terminated and during the spring of

1986, until the time when Björn was brought to Germany by the

applicants, they met him on the following occasions:

 

        8-9 February 1986                       16 May 1986

        22-23 March 1986                        29 May - 1 June 1986

 

        The applicants returned to Sweden from Germany in January 1987.

A plan was made by the social authorities, in co-operation with the

applicants and the foster parents, according to which the applicants

were to meet Björn 17 times in February.  The first meeting took place

on 3 February 1987 and the last one on 24 February 1987.  The meetings

were interrupted by the social authorities on 25 February 1987 due to

a medical opinion of the same date.  There were in total 13 meetings

between Björn and his parents in February 1987.  Björn further met his

parents on a number of occasions in March and April 1987.

 

COMPLAINTS

 

1.      The applicants allege that the refusal until April 1987 to

allow them to take Björn home was a breach of Article 8 of the

Convention.  The only reason appeared to be that the social authorities

considered the foster home to be a better home than the applicants'

home, a reason which is unacceptable.

 

        The applicants maintain that a prohibition on removal is

formally a decision which aims at a smooth transfer of the child from

the foster parents to the natural parents.  In practice, however, such

a decision is taken for the opposite purpose, namely to obstruct the

return of the child to his or her home.  In the present case, the social

authorities did nothing to reunite the applicants with their son.  The

applicants' right of contact with their son has been obstructed.  They

were given insufficient access to their son, and reunification was

thereby not in any way promoted.

 

2.      The applicants further allege that the delay in the

reunification of their family, partly through administrative slowness,

partly through successive delays by different authorities, constitutes

a breach of Article 6 of the Convention in that a "civil right" has

not been determined "within a reasonable time".

 

3.      The applicants allege that the kidnapping of the child in the

mother's and child's home country, in conflict with international law,

and without any subsequent criminal proceedings being instituted, is a

breach of Article 3 of the Convention.  They allege that the social

authorities accepted this kidnapping.

 

4.      The applicants allege that the same facts show disrespect

for family life in breach of Article 8 of the Convention, since no

measures were taken by the authorities.

 

5.      The applicants also allege a breach of Article 13 of the

Convention, contending that there exists no effective remedy for the

alleged violations of the Convention.

 

 

PROCEEDINGS BEFORE THE COMMISSION

 

        The application was introduced with the Commission on

9 June 1986 and registered on 2 December 1986.

 

        Refusing a request from the applicants, the Commission decided

on 13 March 1987 not to take any action under Rule 36 of the Rules of

Procedure.

 

        On 7 May 1987 the Commission decided to invite the respondent

Government to submit written observations on the admissibility and

merits of the application.

 

        The Government's observations were dated 4 September 1987 and

the applicants' observations in reply were dated 17 November 1987.

 

        On 16 October 1987 the Commission granted legal aid to the

applicants.

 

        On 6 July 1988 the Commission decided to invite the parties to a

hearing on the admissibility and merits of the application.

 

        At the hearing, which was held on 4 October 1988, the parties

were represented as follows:

 

        The Government

 

        Mr.  Hans Corell               Ambassador, Under-Secretary for

                                      Legal and Consular Affairs,

                                      Ministry for Foreign Affairs,

                                      Agent

 

        Mrs.  Christina Bergenstrand   Legal Adviser, Ministry of

                                      Health and Social Affairs

 

        Mr.  Carl-Henrik Ehrenkrona    Legal Adviser, Ministry for

                                      Foreign Affairs

 

        The Applicants

 

        Mr.  Lennart Hane              Lawyer

 

        Mrs.  Gunilla Hane             Assistant

 

 

        The applicants, Mr. and Mrs.  Nyberg, were also present.

 

 

 

SUBMISSIONS OF THE PARTIES

 

A.      The Government

 

1.      The Admissibility

 

        Regarding the complaints, under Articles 3 and 8 of the

Convention, concerning Björn's return to Sweden with his foster father

in May 1986, the Government are of the opinion that the suffering to

which the applicants might have been subjected was caused by an

individual towards another individual.  This does not raise an issue

under international law but should be taken care of within the legal

system within the States concerned.  For that reason the Government

maintain that this part of the application should be declared

inadmissible for being incompatible ratione personae with the

provisions of the Convention.

 

        The Government question whether Article 3 could apply at all

even if the way Björn was brought back to Sweden had been authorised

by a Swedish authority.  The contents of Article 3 must be seen in the

light of the atrocities that took place in Europe the years before the

Convention was drafted.  It must have been the severer forms of

ill-treatment that the Contracting Parties had in mind (cf.  Eur.  Court

H.R., Case of Ireland v.  United Kingdom, judgment of 18 January 1978,

separate opinion, Series A no. 25, p. 117, para. 17).  The suffering to

which a person can be subject due to actions taken by the authority,

when these actions are based on a serious concern for a child's

welfare, is far from reaching that level and of a totally different

nature.

 

        The Government maintain that the complaints under Article 3

should for this reason be declared inadmissible for being

incompatible ratione materiae with the provisions of the Convention.

 

The Government furthermore maintain that the complaint under Article 8

should be declared inadmissible for being incompatible ratione

materiae with the provisions of the Convention.

 

        It is added that, if the applicants had refused to send

Björn back to the foster parents while in Sweden, the authorities

could have asked for assistance from the police in order to enforce

Björn's return to the foster home from which he, according to a

decision by the Social Council then in force, was not to be moved.  The

fact that the foster father's action in this case was contrary to the

law does not make any difference as far as the application of Article 3

is concerned.

 

        Should the Commission be of another opinion, the Government

maintain that the complaints in this regard are manifestly ill-founded.

 

        As to the complaints under Article 6 of the Convention the

Government admit that Article 6 is applicable.  With reference to what

is said below on the merits the Government are of the opinion that the

complaints should be declared inadmissible since they are manifestly

ill-founded.

 

        Regarding the remaining complaints as to Article 8 and the

complaints as to Article 13 of the Convention the Government, with

reference to their observations below on the merits, maintain that

these should be declared inadmissible since they are manifestly

ill-founded.

 

2.      The Merits

 

2.1     Article 3 of the Convention

 

        The Government observe that the complaints under Article 3

refer to the event in May 1986 when Björn was brought back to Sweden

by his foster father without the consent of his parents.

 

        According to what has been submitted to the Government by the

Social Council in this regard the Council was not informed about the

foster father's journey to Germany before he left.  However, one of

the officers within the social welfare administration, who was

responsible for Björn's case, was informed by the foster father that

he was going to Germany to talk to Björn's parents.  The officer

helped him to arrange his journey.  She advised him not to go even if

she symphatised with his intention to try to persuade the parents to

let Björn return to Sweden.

 

        The Government point out that the events to which this part

of the complaints relates have been examined by the Parliamentary

Ombudsman and that she concluded that it was not possible, through

further investigations, to get a clear idea of the full truth in the

matter.  The Government cannot make any other assessment.  They stress

that, regardless of what the truth in the matter is, the only thing

the responsible social welfare officer had in mind was to assist Björn

in what she considered to be a difficult situation for him.  However,

it is beyond doubt that any participation in the foster father's

action would clearly have been contrary to Swedish law, if the social

welfare officer had been aware of his intention.  The Government

maintain that this question cannot be solved without taking evidence

before a court.

 

        The Government submit that, since the action was neither

initiated nor authorised by Swedish authorities, it can hardly be said

that it involves a violation of Article 3.  The applicant's complaints

in this regard are manifestly ill-founded.

 

        The measures taken by the foster father must also be seen in

the light of the fact that Björn's parents had brought him to Germany

without informing the foster parents or the social authorities.

Björn's parents thus neglected the prohibition on removal then in

force and their agreement with the foster parents to let them pick up

Björn late in the afternoon of 29 May.

 

2.2     Article 6 of the Convention

 

        As to the alleged slowness of the proceedings the Government

submit that a decision to take a child into public care or to return a

child, who has been living in a foster home for a long time, to its

parents involves psychological and sometimes medical assessments which

can be very difficult.  A parent's legitimate wish to live and be with

his or her child must be weighed against the child's welfare when the

two interests cannot be reconciled.  But the interest of the child

must prevail when a conflict occurs.  In order to establish the child's

interest the social authorities as well as the courts have, to a great

extent, to rely on evidence of doctors and psychologists.  These

specialists have to base their assessments on careful investigations

of the child and often regarding its parents.  These investigations

cannot be carried out too hastily.

 

        It is uncontested that the application of 19 October 1984 was

not finally decided upon until 7 November 1986 when the Supreme

Administrative Court refused to grant leave to appeal.  It is also

uncontested that Björn was returned to his parents on 21 April 1987.

However, it took the Social Council more than one year to get

sufficient information from different experts in order to be able to

determine the matter.  This could be said to be one of the main

reasons for the delay.  The Council's handling of the matter was

criticised by the Parliamentary Ombudsman in his decision of 19 June

1986.  The measures taken by the Social Council at the end of 1986 and

in 1987 also affected the time-limit that was set by the courts.

According to the judgment by the Administrative Court of Appeal the

prohibition on removal should be terminated on 1 March 1987, which

would have been the case if the Social Council had not acted the way

it did.

 

        In the Government's opinion it is the period from 19 October

1984 till 7 November 1986 that should be taken into account when the

condition "within a reasonable time" is examined.  The Government

consider that this does not exceed the time-limit laid down in

Article 6.  Even if the period until Björn was returned to his parents

is added the Government maintain that this condition is satisfied.

 

        The case has been very complex and strong emotions are

involved.  Consulted experts have been of different opinions and one

of them has withdrawn the opinion that he had first submitted to the

Social Council.

 

        In the cases where Article 6 has been considered to be violated,

the period of time to be examined has been of considerable length.  It

even seems clear that the European Court of Human Rights has accepted

periods of time which have been longer than the one in the present

case.

 

        The Government are aware that a case like the present one

should and must be decided upon without delay and that necessary

psychological investigations should be carried out as soon as possible.

 

        The Government maintain that, even if the Social Council's

dealing with the matter has been criticised by the Parliamentary

Ombudsman as far as the duration of the proceedings is concerned, the

length of the period looked upon as a whole cannot be considered as

violating Article 6.  The complaints in this regard are manifestly

ill-founded.

 

2.3     Article 8 of the Convention

 

        The Government admit that a prohibition on removal issued when

a care order is lifted constitutes an interference with the individual's

right to respect for family life as guaranteed in Article 8 para. 1 of

the Convention as does the care order itself.  In view of the opinion

expressed by the Parliamentary Ombudsman the Government admit that the

social authorities have not been able to fulfil their task in creating

such conditions as to make a smooth transfer of Björn to his parents

possible.  In the Government's view, however, the whole responsibility

for the failure cannot be placed on the social authorities.

 

        From the files of the social authorities it appears for

instance that the applicants have created difficulties themselves when

they were to meet with Björn in 1983 and 1984.

 

        In order to be justified under Article 8 para. 2 of the

Convention an interference must satisfy three conditions:  it must be

in accordance with law, it must pursue one or more of the legitimate

aims enumerated in Article 8 para. 2 and it must be necessary "in a

democratic society" for that or those legitimate aims.

 

        The Government submit that the measures and the decisions

taken up to and including 6 February 1986, when the care order was

lifted, were clearly in accordance with Swedish law, as was the

decision to lift the care order and issue a prohibition on removal.  In

the Government's view the decisions of all the courts which have

examined the case from different points of view after that date were

also in accordance with the law within the meaning of the Convention.

 

        The different actions taken by the social authorities in

spring 1986 and onwards have been carefully examined by the

Parliamentary Ombudsman.  The Government cannot make any other

assessment of these actions than was made by the Ombudsman.  She has

severely criticised the Social District Council and its officers

regarding the way the matter was handled during this period.

 

        However, as the Ombudsman has stated, nothing indicates that

the social authorities had any other motives for their actions than

what they believed would be the best solution for Björn.  It should be

noted that the Ombudsman has chosen not to take further actions

against the Social District Council and its officers.

 

        The Government recall that the whole legislation aims at

protecting the interest of the child.  They maintain that the

interference that has taken place was made in the interest of the

child.  This is a legitimate aim under Article 8 para. 2, as falling

under the expression "for the protection of health or morals" and "for

the protection of the rights and freedoms of others".

 

        Regarding the third condition the Government submit that it is

not the Commission's task to take the place of the competent national

courts and make a fresh examination of all the facts and evidence of a

case brought before it in the same way as may be done by a domestic

court.  The Commission should review under Article 8 the decisions

taken while analysing the criteria applied and the reasons and

evidence on which each decision was based.  Thus, the examination of

this case should be made with a view to establishing whether it was

necessary within the meaning of the Convention not to return Björn to

his parents and to issue the prohibition on removal when the care

order was lifted later on.

 

        In the Government's opinion such an examination does not imply

that any misjudgment that may be considered in this regard must

constitute a violation of the Convention.  An area must be provided

within which no violation can be found even if the decisions taken can

be questioned or even considered wrong provided that there are fair

reasons for the conclusions at which the competent authorities have

arrived.  If this borderline is not properly fixed, the procedure under

the Convention will constitute an extra instance with a function very

similar to an extra instance within the State concerned.

 

        In the Government's opinion this leads to the conclusion that

the Commission's examination of the present case should be limited

mainly to establishing whether the decisions taken have been based on

irrelevant circumstances, unacceptable criteria or standards or on

other reasons which cannot be considered fair.  Another approach could

lead to consequences that were not foreseen by the authors of the

Convention.  The examination aimed at establishing whether the

interference corresponds to "a pressing social need" can of course

result in different opinions.  But the important thing in this case is

that such different opinions relate to the question whether a

separation from the foster parents could endanger Björn's mental

health or development.  The condition "necessary in a democratic

society" should not be applied in such a way that a serious concern

with the aim of protecting a child's mental health from being

endangered could be considered a violation of the Convention.  Such an

interpretation does not conform with the spirit of the Convention.

 

        From the reasons given by the courts it is evident that the

best possible solution in Björn's interest, doing him as little harm

as possible, has been aimed at.  This aim permeates the reasoning in

all the judgments.  It has been an extremely difficult task since

psychiatric experts and doctors have taken different positions in what

should be done and how.  In this case opinions can be divided but it

seems obvious that it was not possible to entrust Björn to his parents

without giving him some time.  It is evident that one cannot return a

child that has lived for several years in a foster home to his parents

if one has not been successful in establishing a trustful relationship

between the child and his parents.  If one does, there is a serious

risk of damage to the child's mental health and of infliction of

unnecessary suffering on the child.

 

        In the Government's opinion the decisions of the courts

clearly satisfy the condition of being necessary within the meaning of

the Convention.  Although there could be different opinions as to the

necessity of not letting Björn be reunited with his parents at an

earlier stage, the decisive question was when this could be done

 

without exposing Björn to unnecessary suffering.  The Government

consider that differing opinions in this regard clearly fall within

the wide margin of appreciation afforded to the Contracting States.

 

        As regards the measures taken by the social authorities after

the decision to lift the care order the Government find it difficult

to maintain, in view of the decisions of the Courts and the

Parliamentary Ombudsman, that the measures were necessary within the

meaning of the Convention.  However, it must be emphasised that Björn

had lived nearly his whole life with his foster parents and the

investigations show that he had become very attached to them.  There

were great problems in establishing a trustful relationship between

Björn and his parents.  The social authorities and the courts

therefore had to carefully seek the best solution for Björn.  The

Government refer to the documents upon which the courts and the social

authorities have based their assessments.  The strong emotional

reactions which Björn seems to have shown when he should meet his

parents are pointed out.  They made the organising of the meetings

between Björn and his parents an extremely difficult task.

 

        In view of the special circumstances of the case the

Government leave it to the Commission to decide whether the actions taken

by the Social District Council, or the lack of actions, reveal a

violation of Article 8.  In the Government's view, however, the

decisions taken by the courts do not amount to a violation of

Article 8.  The complaints in this regard are manifestly ill-founded.

 

        The applicants have alleged that the circumstances concerning

Björn's return to Sweden also constitute a violation of Article 8.

With reference to what has been said above the Government maintain

that the complaints in this regard are also manifestly ill-founded.

 

2.4     Article 13 of the Convention

 

        The applicants have alleged violations of Articles 3, 6 and 8.

 

        The complaints under Article 6 concern the duration of the

proceedings before the Social Council and the courts.  The courts as

well as the social authorities are supervised by the Parlimentary

Ombudsman and the Chancellor of Justice.  Complaints regarding

slowness in dealing with a case can be submitted to these organs.  If

there are reasons for the complaints the authority concerned can be

criticised and in serious cases the person responsible for the delay

can be prosecuted.  Disciplinary actions can also be instituted against

civil servants and officials who do not carry out their task properly.

 

        The Social Council is also supervised by the County

Administrative Board which is obliged to see to it that the Council

carry out its tasks properly.  Complaints can be lodged with the Board

which can take proper actions after having made necessary

investigations.  This remedy was used by the applicants.

 

        As far as Articles 3 and 8 are concerned the Government submit

that the court proceedings as such constitute an effective remedy.

Everyone is free to refer to the contents of an Article of the

Convention if he so wishes when arguing a case.  The Convention is not

incorporated into Swedish law.  However, arguments based on Articles

in the Convention must be taken into account and be examined by the

court as any other argument.  An alleged violation of the Convention

 

is thus examined and will affect a decision on the matter even if a

Swedish court normally does not express its opinion regarding the

interpretation of a Convention Article explicitly.

 

        The Government also point out that an official responsible for

a decision or action violating the law which also could involve a

violation of the Convention can be prosecuted.  It is possible to

prosecute a person for misuse of office or negligence in office.

If the circumstances call for such measures they usually appear from

investigations carried out by the Parliamentary Ombudsman or by the

Chancellor of Justice since such cases normally are reported to these

organs.

 

        The Government submit that there has been no violation of

Article 13 and that the complaints in this regard are manifestly

ill-founded.

 

3.      Conclusions

 

        The Government conclude:

 

   -    concerning the admissibility

 

        that the application should be declared inadmissible, partly

for being incompatible ratione materiae with the Convention, partly

for being incompatible ratione personae with the Convention and partly

for being manifestly ill-founded, and

 

   -    concerning the merits

 

        that there has been no violation of the Convention.

 

 

B.      The Applicants

 

1.      The Admissibility

 

        As to their complaints concerning Björn's return to Sweden the

applicants submit that Swedish foster parents would never kidnap their

foster child, a German citizen, in Germany, especially after having

been instructed to co-operate in the reunification of the foster child

with his parents, if they had not been assured that there would be no

reaction against the kidnapping from the Swedish authorities.  In

addition the authorities took part in the kidnapping through the

Chairman's decision to take Björn into public care, by reporting the

incident to the police and by financing the foster father's trip to

Germany.  The financing was essential for the kidnapping before the

prohibition on removal of Björn from the foster parents would be

revoked.

 

        To kidnap human beings and take them from their native country

to a remote country is in the applicants' view inhuman and degrading

since a six year old child has been kidnapped from his legitimate

parents for the purpose of an illegal pseudo-adoption.  The

co-operation between the social workers, the Social Council and the

foster parents throughout the whole procedure clearly shows that their

aim has never been to let Björn be reunited with his parents.

 

        The Government's submission that these measures were taken out

of serious concern for a child's well-being shows an astounding

cynicism.

 

        The Government incorrectly state that Swedish authorities

could have asked for police assistance to enforce Björn's return to

the foster home.  This could obviously not have been the case if the

Government are referring to the German police authorities.  If the

Government are referring to the Swedish police authorities their

statement is also misleading.  The Deputy Chairman's decision to take

Björn into public care was contrary to the law and would have been

quashed by the County Administrative Court.  Some time after this,

probably just a few days or a week later, the prohibition to remove

Björn would have appeared ridiculous and would have been nullified.  A

correct description of the legal conditions underlines the breach of

Article 3 of the Convention.

 

2.      The Merits

 

2.1     Article 3 of the Convention

 

        The kidnapping of Björn must in the applicant's view be seen

in the light of the fact that the Ministry for Foreign Affairs had

informed the social authorities about the possibilities to have Björn

returned to his foster parents in Sweden.  The information must have

made it clear to the social welfare officer in charge and to the

foster parents that the case was out of the hands of the Swedish

authorities and that, even if the action of the applicants was

prohibited, nothing could be done about it.  The kidnapping was the

only remaining alternative.

 

        The applicants do not accept that the social welfare officer,

who had dealt with Björn's case for several years, believed that

Björn's foster father would have a chance to persuade Björn's parents

to let Björn go back to Sweden with him.  If the foster father had

been concerned about Björn's well-being, he could of course have

discussed this with Björn's parents in a civilised manner when he came

to Germany.  But had he done that, his chances to kidnap Björn would

have been spoilt.  He must have realised this since he chose to act

quickly and secretly.

 

        The social welfare officers not only sympathised with the

foster father's plan to kidnap Björn but they encouraged it.  They

knew the address of the Nyberg family in Germany and their telephone

number.  They could have phoned Björn's parents if they wanted to talk

to them.  The hurry to arrange the air tickets was caused by the

intention to kidnap Björn.  It is likely that the Social Council would

have revoked the prohibition on removal if Björn had stayed with his

parents a few days more.

 

        The foster parents naturally had no independent right to Björn

and were well aware of that.  They obviously acted the way they did

because they had been guaranteed to keep Björn if the kidnapping was

successful.

 

        The logical reason for the decision of 29 May 1986 of the

Deputy Chairman of the Social Council to take Björn into care must have

been that the Social Council wanted to correct the information given

by the Ministry for Foreign Affairs.  In case the kidnapping would be

a failure or cause an interference by the German police the decision

 

could be used to deceive the German authorities.  The decision is a

strong indication that the social officers and the Social Council knew

about the plans to kidnap Björn.  In addition the money advanced for

the air tickets was a condition for the realisation of the kidnapping.

 

        As has been mentioned above, the kidnapping of a six year old

child from his legitimate parents is a cruel, inhuman and degrading

action.

 

2.2     Article 6 of the Convention

 

        The applicants submit that Björn has unnecessarily been

detained in a foster home for a long period of time, at least from

1983.  There have during that period been many occasions and reasons

to reunite Björn quickly and smoothly with his family.  The

reunification did not take place until April 1987 because of the

energetic resistance from the Swedish authorities.  Important years of

Björn's childhood have been wasted and turned into suffering for him

and his family.  This has been said to have been done in Björn's

interest which has been alleged to be in conflict with that of his

parents.

 

        The Swedish philosophy concerning the taking of children into

care is in the applicants' view a primitive expert cult with

catastrophic consequences for children and parents.  It only brings

joy to the continuously growing autocratic bureaucracy.  The

Government admit that the authorities, to a great extent, have to

trust the evidence given by doctors and psychiatrists.  This of course

does not mean that the courts and the lawyers must let them completely

out of control.  If the children in question are healthy and the

parents healthy and loving, it is naturally necessary in the relation

between them to leave some room for common sense, but also for unknown

and valuable influences.  This is not knowledge that is reserved for

psychiatrists or psychologists.

 

        The Swedish model for examinations with its many primitive

methods and unscientific theories seems to be unique in the western

world.  The assessments made are an abuse of psychiatry and

psychology.  The examinations that have been made of Björn have, apart

from their primitive and speculative contents, no substance of a kind

that would have prevented them from being carried out far earlier and

in a considerably shorter time.

 

        Björn was taken into public care because of an incorrect

prognosis of his mother's mental health and of how the spouses Nyberg

would function as a family.  Already in 1984 the misjudgments had been

corrected by adult psychiatrists involved in the case.  If Björn had

not been definitely replaced it would have been easy to arrange a

child psychiatric opinion about him at that time, whatever purpose it

would have served.  What reveals the mentality of the social

authorities is, not only their efforts to have the prohibitions on

removal prolonged by the courts, but also their abuse of the time they

gained thereby.  Any reasonable step leading to a family reunification

was neglected.

 

        The breaches of the Nyberg family's rights started in August

1982 when a psychiatrist made the assessment that Birgitt Nyberg soon

would recover and be able to take care of her son.  Since then the

applicants have unceasingly and persistently, with strong support from

 

the adult psychiatrists, tried to get their child back.  Only because

of fortunate circumstances they finally succeeded after four and a

half years in having Björn returned to them.

 

        The applicants' case was in fact very simple.  There was a

good relation between the parents and their second son, who was a fine

healthy child that had been well looked after.  Mrs.  Nyberg had made

an extremely stable recovery not long after she had been taken ill.

Mr.  Nyberg suffered from some minor mental problems but co-operated

closely with and received support from adult psychiatrists.  He

further took care of the housework while his wife was at work.  In

short, a well-functioning family, well-suited for having the full

responsibility for small children.

 

        The difficulties in this case have been created by the

bureaucrats involved.  The family's main problem was the definite

placement of Björn in a foster family and the intervention in the case

by child psychiatrists.  The experts who claim to know such a lot about

children's needs and the relations between children and parents are in

opposition to adult psychiatry and common sense.  The need for those

experts and their assessments must be questioned.

 

        The extent and the contents of the child psychiatric opinions

- irrespective of being unscientific and of giving meaningless

motivations - show that they could have been prepared in a

considerably shorter time.  If the social welfare officers had the

intention not to accept the assessments made by the adult

psychiatrists they should have ordered the child psychiatric opinion

immediately.  When delaying the matter, the welfare officers again

showed that they use child psychiatry as a weapon against parents.

The only way to stop the reunification of the Nyberg family was to let

time pass.

 

        It was unfortunate that the reunification should be the matter

of legal procedure of an apparently serious nature for nine months and

that the prohibition on removal was made valid for a year without any

clear directions as to what would happen when that time had expired.

Such arrangements aim at preventing a reunification.

 

        The criticism put forward by the Parliamentary Ombudsman as to

the District Council's slow handling of Björn's case is tragi-comical

in view of the continued delays of the matter by appeals both to the

Administrtive Court of Appeal and to the Supreme Administrative Court

and by the failure to take any measures for the reunification of the

family while the courts examined the appeals.

 

        The abuse of child psychiatry and the delaying of the

reunification of the Nyberg family violated Article 6 of the

Convention.

 

2.3     Article 8 of the Convention

 

        The prohibition on removal of Björn interfered with the

applicants' right to respect for family life as guaranteed in Article

8 para. 1 of the Convention.  Legislation should allow the social

authorities and the courts the use of this measure only when certain

well-defined criteria are fulfilled and for a short period of time.

 

        A decision to discontinue the public care of a child is made

when the child's parents are again considered to be able to take care

of it.  It should be followed by a reunification of the parents and

the child.  Prohibitions on removal have no support in law but are

based on general and completely unlimited authority to exercise power

arbitrarily.  Court procedure is a farce, when the speculations of

psychology are not only superior to law, but interpreted by

bureaucrats and those supported by them.  The prohibition to remove

Björn from his foster parents was not necessary in a democratic

society, but was in breach of one of the most fundamental aims of the

Convention, i.e. the principle of the rule of law, and contrary to

ideals concerning freedom of the individual that are common to the

Convention States.

 

        A prohibition on removal is a weapon against the human rights

of parents especially if obtained under the lordship of psychological

terminology.  The difference between a prohibition valid until further

notice and a prohibition valid for a certain period of time is

revealed in the present case.  The social authorities prefer a

prohibition valid until further notice since it leaves them unlimited

time during which they do not have to arrange a reunification of the

child with its parents.  The position of the parents is not stronger

when the prohibition is valid for a certain period of time.  The only

difference is that the parents can point out that no measures have

been taken to reunite them with their child.  An effect of a

prohibition on removal is that, since the child is no longer in public

care, the parents have no right of access to the child.

 

        In March 1987 the Social Council issued a new prohibition on

removal of Björn, although the prohibition decided by the courts had

been valid for more than one year.  This shows that the prohibitions

on removal are used for completely alien purposes.  It would be hard,

not to say impossible, to find cases where the prohibitions on removal

have not been valid for so long that they effectively prevented the

parents from having their children back.

 

        It is in principle of no importance who is accused of having

done something wrong as concerns the placing of Björn in the foster

home and the measures taken in connection with it.  The system of

unlawfulness covered by propaganda, even in the texts of the statutes,

automatically leads to violations of family rights.  The Nyberg family

is not the only family to experience this.  It is next to impossible

for parents to have a child, who has been taken into care, returned to

them if individual welfare officers are opposed to it.

 

        Swedish law is not only vague but without contents and

subordinate to psychology.  The fact that the State places experts at

the parents' disposal is without importance.  Since the experts move

in areas where no knowledge can be obtained, their investigations are

meaningless, independently of how many experts have been mobilised on

each side.  In Sweden there is an additional problem, namely that,

since the experts, for their support, depend on commissions assigned

to them by the social welfare officers, it is almost impossible for

parents to engage an expert.

 

        The social welfare officers have not been acting in good faith

in this case.  Already when they started their investigation they had

the intention to make Björn's stay in the foster home definite and

they realised the value of a time-consuming investigation.  Two social

 

welfare officers demanded, after five long monotonous talks with the

spouses Nyberg, three more talks.  Nothing of what came out of those

talks was accounted for in any investigation.  The Nybergs found the

talks degrading and bullying, the intention being to break their

unity.  As appears from the social authority's opinion to the County

Administrative Court the authority had already made the assessment

that Björn belonged in the foster home.

 

        The social authority's determination as to where Björn

belonged, in connection with the increasing work of the bureaucrats

and the engagement of great numbers of them, for example in Jönköping

when Björn should get to know his family, shows how the abstraction

"in the child's interest" in an unpleasant way seems to coincide with

the interest of bureaucracy.  Björn was happy to be reunited with his

family already in May 1986, and would naturally have been so if the

reunification had taken place in 1984, as it should have done.  Those

who have unlimited power can always claim to act in the interest of

their victims.

 

        In all social districts of Sweden children are permanently

placed in foster homes, which proves that the country lacks competent

courts.  The lack is due to psychological scales of value and prognoses

concerning healthy children, based on theories which have been

developed in Sweden and which are questioned in scientific

literature.  Thus, there is no need for the Commission to go through

all the facts and evidence of a case like the present one.  The

Government should instead prove that relevant facts and evidence exist

and not only speculative theories.

 

        The opinion of those who have come into contact with the

Nyberg family, without ambitions of power or money, is that Björn

should never have been placed in a foster home in 1982 as his mother

recovered so soon.  After her recovery, she energetically and cleverly

fought to get her child back.  Björn's case does not fall within the

area of incorrect but tolerable care decisions as the Government

maintain.  If there is respect for human beings and for life in cases

like the present one, that kind of mistake need not be made and if it

is made it is easily and quickly corrected by independent courts.

 

        To set the limits for care decisions in cases where there is

doubt and to correct mistakes quickly is not a delicate task.  It

functioned well in Sweden until psychological assessments and prognoses

became the fundamental not to say the only support for care decisions.

 

        The treatment of Björn, almost like some kind of profitable

property, reveals that the decisions taken were based on irrelevant

circumstances and uncivilised criteria or standards and that unjust

methods were used, for example as the welfare officers circumstantially

and thoroughly worked on the case with the secret aim that Björn would

not be reunited with his parents.  The measures taken by the social

authorities clearly show that the legal criteria of the legislation,

as well as the courts' judgments and decisions, have no importance.

 

        Within the areas of forensic psychiatry and compulsory care of

mentally ill, there exist whole series of clear criteria and court

control of their application and of the level of the assessments made.

This is not the case in Sweden when it comes to assessing the risk

that a healthy child will get a psychosis.  Björn's sound reaction

when he was reunited with his parents, and uninfluenced by the adults

 

who were trying to prevent the reunification, shows that the prognoses

made of him were in fact not even art of divination, but merely

bureaucratic assault.

 

        The Government maintain that the aim of the authorities has

been to do Björn as little harm as possible, i.e. in an abstract

prognosticating sense.  The prognoses of Björn and his parents were

based on unsubstantiated facts, which shows that any parent in Sweden

suffering from a minor mental insufficiency hardly has, however

quickly he recovers, a chance to have a child that has been taken into

care returned.

 

        The Government also maintain that there were great problems in

establishing a trustful relationship between Björn and his parents.

This "trustful relationship" between a small child and its parents,

who love it, seems to be a condition that can lead to a decision of

any kind.  The result is given beforehand, when those who try to

prevent the efforts to create good relations, are also assigned to

assess the relations.  Both Dr.  Gunnel Hörnqvist and nurse Nancy de

Sousa, at the hearing in the County Adminisrative Court, confirmed the

good relations Björn had with his parents when he visited them.

 

        The described violent reactions of Björn are a tragi-comical

expression of the mediocre level of the investigations.  It is a

well-known fact that children can be easily manipulated.  Björn knew

what his foster parents expected of him, and in his position of

dependence, he tried to come up to their expectations when they were

in the neighbourhood.  A lot of bureaucrats were engaged in the

measures taken to reunite Björn with his parents.  It is hard to

imagine more repellent arrangements than those made and it is no

wonder that the stress surrounding the meetings made it impossible to

create natural and calm conditions.

 

        The spouses Nyberg have not made any accusations of faults or

misunderstandings, they humbly want to expose how family life and the

relation between children and parents are made bureaucratic in a

basically systematised and loathsome way.  An example of this is the

attempts that were made in 1982 to make Birgitt Nyberg leave her

husband, in order to have the care order concerning Björn revoked.

These attempts could amount to a violation of Article 12 of the

Convention.  Björn was and still is a healthy child and his reunion

with the applicants should have been undramatised and arranged much

earlier.

 

        With regard to Björn's trip to Germany with his parents the

applicants argue that a decision that the public care of a child

should be discontinued returns to its parents the fundamental right to

decide the whereabouts of the child and in principle the child should

be returned to its parents.  When the Nybergs decided to keep Björn

with them they in fact enforced the decision that the public care

should come to an end.  The Swedish police thus cannot in cases like

the present one interfere and return the child to its foster parents

at a request from the welfare officers.  In order for the police to do

that a decision taken by the County Administrative Court is required.

 

        In the present case the social authorities evidently

considered that the possibilities were small that the County

Administrative Court would decide that Björn should be returned to

his foster parents for continued arrangements for his return to his

parents.  A prohibition on removal cannot form the basis for a request

for enforcement, nor can it justify a renewed decision of public care.

 

        The kidnapping of Björn in Germany delayed his reunification

with his parents for about eleven months.  To let the kidnapping pass

unpunished and even be successful is, looking at Björn's and his

parents' situation from 2 June 1986 to 21 April 1987, a flagrant

breach of Article 8 of the Convention.

 

2.4     Article 13 of the Convention

 

        The applicants had no independent right to prosecute the

foster father, the social welfare officers or members of the Social

Council.  They have addressed themselves to all instances but not one

of the social welfare officers or members of the Social Council has

been questioned.

 

        The view of the Public Prosecution Authority that the foster

father acted out of necessity is untenable.  It shows how the human

rights of parents are eliminated even within the criminal law.

Penalties for parents are increased and parents are reported as wanted

by the police, but concerning confessed crimes, the Prosecutor-General

invents excuses.

 

        The applicants find no legal influence of the European

Convention on Human Rights in any Swedish court decision.  If a Swedish

lawyer invokes the Convention he will either be found to be ridiculous

or annoying.

 

        Incorporation of the Convention into Swedish law would to a

great extent prevent the injustices that are now carried out with the

help of psychiatry and demagogic expressions like "the interest of the

child" and "children's rights".

 

        The Government's allegation that officials can be held

responsible for decisions or actions violating the law is misleading.

One of the prerequisites for the crime misuse of office is intent as

concerns the violation of the law and, as concerns negligence in

office, a prerequisite is gross negligence.

 

        The power concerning care decisions is with the social welfare

officers working in the field.  They collect information and pass it on

to the Social Council.  They have the right to decide over almost 98%

of the money on the social authority's budget and thereby have power

over the income of psychiatrists and psychologists.  Through the

position of power they get from provisional chairman's decisions, they

can also give orders to the police when there is a question of

intervention in a home to take a child away by force.  At the same time

it is hinted in some statutes that the position of the social welfare

officers is so subordinate that they should be excluded from disciplinary

punishments.

 

 

THE LAW

 

1.      The applicants complain that they have been victims of a

breach of Article 8 (Art. 8) of the Convention because of the refusal

until April 1987 to allow them to take Björn home.  They submit that

the only reason appeared to be that the social authorities considered

the foster home to be a better home than the applicants' home.  A

prohibition on removal, which formally is a decision aiming at a

smooth transfer of a child from the foster parents to the natural

parents, in practice is taken for the opposite purpose, namely to

obstruct the return of the child to its natural parents.  The social

authorities did nothing to reunite them with their son and their

contact with him has been obstructed.  The access to their son was not

sufficient to promote the aim of reunification.  The applicants

further complain that the kidnapping of Björn in the Federal Republic

of Germany shows disrespect for family life in breach of Article 8

(Art. 8) of the Convention.

 

        The Government admit that a prohibition on removal issued when

a care order is lifted constitutes an interference with family life and

that the social authorities have not been able to fulfil their task of

arranging a smooth transfer of Björn to his parents.  They submit,

however, that the whole responsibility cannot be placed on the social

authorities and that the measures and decisions complained of were

justified under the second paragraph of Article 8 (Art. 8) as being

lawful and necessary in a democratic society in the interest of Björn,

as far as they were taken up to and including 6 February 1986, when

the care order was lifted and the prohibition on removal issued.  This

is also the case with the decisions taken by the courts after that

date.  As regards the measures taken by the social authorities after

the care order was lifted the Government refer to the strong criticism

expressed by the Parliamentary Ombudsman and leave it to the

Commission to decide whether they were lawful and necessary within the

meaning of the Convention.

 

        As to the complaint concerning Björn's return to Sweden the

Government submit that the actions taken by the foster father were

neither initiated nor authorised by Swedish authorities.  The

Government contend that the complaint should be declared inadmissible

for being incompatible with the provisions of the Convention or,

alternatively, for being manifestly ill-founded.

 

        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 must examine whether the acts complained of

constitute an interference with the applicants' right to respect for

family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the

Convention and, if so, whether any such interference is justified

under the terms of Article 8 para. 2 (Art. 8-2) of the Convention as

being "in accordance with the law" and "necessary in a democratic

society" for any of the purposes enumerated in that paragraph.  The

Commission must also have regard, in this context, to the delay in the

proceedings referred to below in relation to Article 6 (Art. 6) of the

Convention (see para. 3 below).

 

        The Commission has carried out a preliminary examination of

the above issues.  It finds that they raise questions of fact and law

which are of such complexity that their determination requires an

examination of the merits.  This part of the application is therefore

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, but must be declared admissible, no

other ground for declaring it inadmissible having been established.

 

2.      The applicants also allege that the kidnapping of Björn in the

Federal Republic of Germany is a breach of Article 3 (Art. 3) of the

Convention.  They contend that the social authorities condoned the

kidnapping.

 

        The Commission considers that the facts on which this

allegation is based are the same as those facts declared admissible

above.  This part of the application must therefore also be declared

admissible.

 

3.      The applicants further complain that the delay in the

reunification of their family, partly through administrative slowness,

partly through successive delays of different authorities, violated

Article 6 para. 1 (Art. 6-1) of the Convention in that a "civil right"

has not been determined "within a reasonable time".

 

        The Government submit that it is the period from 19 October 1984

till 7 November 1986 that should be taken into account when the

condition "within a reasonable time" is examined.  They contend that

this period does not exceed the time-limit laid down in Article 6

(Art. 6) . Even if the period until Björn was returned to his parents

is added the Government maintain that this condition is satisfied.

 

        The first sentence of Article 6 para. 1 (Art. 6-1) of the

Convention reads as follows:

 

"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 issue to be decided by the Commission is whether the

applicants' "civil rights" have been determined "within a reasonable

time".

 

        The Commission has made a preliminary examination of this

issue in the light of the parties' submissions.  It considers that it

raises questions of fact and law, which are of such a complexity that

their determination requires an examination of the merits.  This part

of the application is therefore also admissible.

 

4.      The applicants have finally invoked Article 13 (Art.13) of the

Convention, contending that there exists no effective remedy for the

alleged violations of other provisions of the Convention.

 

        The Government submit that this complaint is manifestly

ill-founded.

 

        Article 13 (Art. 13) of the Convention provides:

 

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

 

        The Commission considers that this complaint is closely

related to the other complaints made by the applicants and that it

must therefore also be declared admissible.

 

        For these reasons, the Commission

 

        DECLARES THE APPLICATION ADMISSIBLE

        without prejudging the merits of the case.

 

 

 

Secretary to the Commission               President of the Commission

 

 

 

 

    (H. C. KRUGER)                              (C. A. NØRGAARD)

 

 

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