Information Note on the Court’s case-law No.
November 1992
Olsson v. Sweden (no. 2) - 13441/87
Judgment 27.11.1992
Article 8
Article 8-1
Respect for family life
Prohibition on applicants from removing their daughter and son from foster homes: no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.SCOPE OF THE CASE BEFORE THE COURT
As delimited by Commission's admissibility decision, case concerned only applicants' complaints about the prohibition on removal and its maintenance in force as well as restrictions on their access to the children; the length of certain domestic proceedings and the lack of a hearing on appeal; the absence of a right of access to court or an effective remedy with respect to certain decisions.
II.ARTICLE 8 OF THE CONVENTION
Not contested that applicants' right to respect for family life interfered with.
A.In accordance with the law
1.Prohibition on removal and its maintenance in force were based on relevant provisions of Swedish legislation - no evidence that measures taken in order to prevent reunion of applicants and children.
2.Restrictions on access imposed between 23 June 1987 and 1 July 1990, but not thereafter, had no basis in Swedish law.
B.Legitimate aim
Both the prohibition on removal and the access restrictions (whether imposed before or after 1 July 1990) pursued legitimate aims of protecting the children's "health" and "rights and freedoms".
C.Necessary in a democratic society
Reasons for original decision to prohibit children's removal were both relevant and sufficient for purposes of Article 8.
Since factors relied on by Swedish authorities did not essentially change in period under review, reasons for maintaining prohibition were also relevant - whether they were sufficient too depended on why preparatory contacts between applicants and children had remained inadequate - in this context Court examined reasons for access restrictions during entire period: being similar to those underlying prohibition on removal, they were relevant and it was not established that national authorities, having regard to their margin of appreciation, had not made such efforts to arrange the necessary preparations as could reasonably be demanded in the circumstances - accordingly, both the restrictions and the maintenance of the prohibition were based on reasons that were also sufficient.
Conclusions: (a) violation as regards the access restrictions imposed between 23 June 1987 and 1 July 1990 (unanimously); (b) no violation as regards the prohibition on removal or the access restrictions imposed after 1 July 1990 (six votes to three).
III.ARTICLE 53 OF THE CONVENTION
Terms of Committee of Ministers' Resolution DH (88) 18 concerning execution of Court's judgment of 24 March 1988 recalled - facts and circumstances underlying complaint of breach of Article 53 raised new issue not determined in that judgment and were essentially the same as those considered under Article 8 in present instance.
Conclusion: no separate issue arose (seven votes to two).
IV.ARTICLE 6 § 1 OF THE CONVENTION
A.Judicial review of restriction on access
Not disputed that absence for certain period of court remedy to challenge access restrictions constituted a breach.
Conclusion: violation (unanimously).
B.Length of certain proceedings
1.Total duration of proceedings relating to a request for termination of public care could not, in the circumstances, be regarded as excessive.
Conclusion: no violation (unanimously).
2.Proceedings relating to applicants' request for return of children under Parental Code, although concerned with enforcement of existing right, had affected decisively exercise of an essential aspect of their custody rights; their duration was not excessive.
Conclusion: Article 6 § 1 applicable but no violation (unanimously).
3.Proceedings concerning appointment of a guardian ad litem had been concluded within a reasonable time.
Conclusion: no violation (unanimously).
V.MISCELLANEOUS ALLEGATIONS OF VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
Complaints had been considered by Commission to be unfounded or not to need examination and had not been mentioned by applicants before Court.
Conclusion: not necessary to examine (unanimously).
VI.ARTICLE 50 OF THE CONVENTION
A.Damage: compensation awarded, on equitable basis, to both applicants for non-pecuniary damage occasioned by violations found.
B.Legal fees and expenses: applicants liable to pay fees for domestic proceedings as lawyer agreed to act on basis that she would not seek payment under Swedish legal aid scheme - reimbursement of fees and expenses referable to those and the Strasbourg proceedings ordered, but only in part.
Conclusion: respondent State to pay specified sums (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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