AS TO THE ADMISSIBILITY OF
Application No. 33283/96
by Anders and Gun PARADIS
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 July 1996 by
Anders and Gun Paradis against Sweden and registered on 1 October 1996
under file No. 33283/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, a married couple, are Swedish citizens and were
born in 1946 and 1950, respectively. The first applicant is a
clergyman and the second applicant is an instructor of data processing.
They reside in Angered.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Taking into public care
In the beginning of 1995 the Social District Council
(stadsdelsnämnden) of Lärjedalen, Göteborg, applied to the County
Administrative Court (länsrätten) of the County of Göteborg and Bohus
for a care order concerning the applicants' sons Mattias, born in 1977,
Johan, born in 1979, Mikael, born in 1982, and Stefan, born in 1984.
The application was made pursuant to Sections 1 and 2 of the Act with
Special Provisions on the Care of Young Persons (Lagen med särskilda
bestämmelser om vård av unga, 1990:52; hereinafter "the 1990 Act"),
according to which compulsory care is to be provided if there is a
clear risk of impairment of the health and development of a person
under 18 years of age due to ill-treatment, exploitation, lack of care
or any other condition in the home and if the necessary care cannot be
provided with the consent of the young person's custodian. The Council
claimed that the sons' health had already been impaired due to physical
and mental ill-treatment and that there was a clear risk of further
impairment.
After having held an oral hearing in the case, the County
Administrative Court, on 24 February 1995, granted the Social District
Council's application and ordered that the children be taken into
public care. The court noted that the Council's investigation
contained information from several different sources on physical and
mental ill-treatment of the children. Particular regard was had to a
report from the Children's Psychiatric Clinic (Barn- och
ungdomspsykiatriska mottagningen) in Angered, which included such
information given by the family members themselves. The court also
took into account the statement of the chief physician at the clinic,
according to whom all the children were in need of psychiatric help on
account of the conditions in their home.
The applicants, Mattias and Johan appealed to the Administrative
Court of Appeal (kammarrätten) in Göteborg. The appellate court held
a further hearing in the case. By judgment of 13 June 1995, it upheld
the care order in so far as it concerned Johan and Stefan but
discontinued the public care of Mattias and Mikael. The court found
the investigation in the case to show that the conditions in the
applicants' home had at times been chaotic and that the children had
been punished, sometimes physically, by their father. Mattias, Johan
and Stefan had on different occasions run away from home and school.
According to the court, Johan and Stefan had problems which required
therapeutic treatment. In addition, Stefan had been diagnosed as
having a brain damage from birth and showed autistic signs. Their
special care needs could not be met by the applicants. Noting that the
children had different personalities and that Mattias and Mikael had
been less affected by the conditions in the family, the court found
that there were not sufficient grounds for taking Mattias and Mikael
into compulsory care. On 6 July 1995 the Supreme Administrative
Court (Regeringsrätten) refused leave to appeal against the judgment
of the Administrative Court of Appeal.
Placement of Johan
By decision of 10 May 1995, the Social District Council placed
Johan at the Tallbacken Children's Home (behandlingshem) in Vaxholm,
which later changed its name to the Roslagen Pupils' Home (elevhem).
The applicants did not appeal against the initial placement decision.
On 17 October 1995 the Council decided that the placement of
Johan should continue. The applicants appealed and requested that he
be placed in a Christian home.
By decision of 22 December 1995, the County Administrative Court
found that no appeal lay from the decision of 17 October 1995. The
court referred to Section 41 of the 1990 Act, according to which only
decisions concerning an initial placement or a change of placement
could be appealed against. Moreover, according to the travaux
préparatoires to the Section in question, also a decision refusing a
request for a removal of the child from the home where he or she was
staying could be appealed against. As none of these situations was at
hand, the appeal was dismissed. On 11 March 1996 this decision was
upheld on appeal by the Administrative Court of Appeal. On 8 May 1996
the Supreme Administrative Court refused leave to appeal.
On 19 January 1996 the applicants requested the Social District
Council to remove Johan from the Roslagen Pupils' Home. On
5 March 1996 Johan ran away from the home. After having been in hiding
for two months, he is now living with a Christian family in Göteborg.
Apparently, the Council has not taken any decision in regard to the
applicant's removal request.
Restrictions on access
By decision of 19 March 1996, the Social District Council refused
the applicants access to Johan, by personal visits and by telephone
calls, for a period of three months. The applicants appealed against
the decision.
By judgment of 25 April 1996, the County Administrative Court
rejected the appeal. It found the investigation in the case to show
that the applicants had a negative impact on Johan and that his
contacts with them hampered his development and his ability to profit
from the treatment he was undergoing at the Roslagen Pupils' Home.
Noting that Johan had run away from the home on 5 March 1996 and that
his whereabouts were still unknown, the court considered that his
escape had been supported by the applicants. The court thus concluded
that there were sufficient grounds for the Council's decision.
Upon the applicants' further appeal, the Administrative Court of
Appeal, on 23 May 1996, set aside the County Administrative Court's
judgment, noting that the Council on 16 April 1996, i.e. before that
judgment, had revoked the access restrictions.
Placement and continued care of Stefan, legal aid
On 5 May 1995 Stefan was placed with foster parents in Vårgårda
in a so-called home for care and housing (hem för vård och boende;
hereinafter "HVB"). The applicants appealed against the placement,
requesting that he be placed in a Christian home where the parents were
regular churchgoers.
The County Administrative Court held an oral hearing, at which
it heard the applicants, Stefan's counsel and representatives of the
Social District Council. By judgment of 21 August 1995, it rejected
the applicants' appeal. The court noted that Stefan, in accordance
with the applicants' wishes, had been placed in a special school due
to his brain damage. The school's requirement that he be placed in an
HVB had led to the placement with the foster parents in question, one
of the few homes which accepted children with Stefan's special
problems. The court noted that no complaints had previously been made
against the foster parents and found that Stefan had had a positive
development with them. Moreover, he was allowed to practise his faith
and the foster parents were willing to take him to church.
The applicants appealed to the Administrative Court of Appeal
which held a further hearing and heard, in addition to the persons who
had appeared before the County Administrative Court, three witnesses
and a representative of the County Administrative Board
(länsstyrelsen). On 13 December 1995 it rejected the appeal on
basically the same grounds as the County Administrative Court.
On 22 January 1996 the Supreme Administrative Court refused the
applicants leave to appeal.
On 16 August 1996 the applicants requested that the public care
of Stefan be terminated and that he be allowed to move back to the
applicants. On 15 September 1996 Stefan ran away from his foster
parents and the Social District Council has, as a consequence, not
taken any decision in regard to the applicant's request. He is
presently in hiding and has refused to take part in an investigation
at the Children's Psychiatric Clinic, as requested by the Council.
The applicants applied for legal aid in the case concerning
termination of care and requested that a designated lawyer, Mrs. Siv
Westerberg, be appointed. On 9 September 1996 the County
Administrative Court noted that the applicants were entitled to a legal
aid lawyer but found that the lawyer in question did not have the
necessary qualifications. The request for appointment of that lawyer
was accordingly rejected and the applicants were given an opportunity
to name another lawyer. On 19 September 1996 this decision was upheld
by the Administrative Court of Appeal and on 5 November 1996 the
Supreme Administrative Court refused leave to appeal.
Later the applicants requested that the County Administrative
Court instead appoint Mrs. Ruby Harrold-Claesson as their legal aid
lawyer. This request was refused on 14 November 1996 on the same
grounds as the decision not to appoint Mrs. Westerberg. The
applicants' appeal was rejected by the Administrative Court of Appeal
on 20 December 1996. The applicants have since made an appeal to the
Supreme Administrative Court where, apparently, the case is presently
pending.
COMPLAINTS
1. The applicants complain of the taking into care of their
children. They maintain that the Social District Council investigation
which served as a basis for the taking into care was biased and
contained misinterpretations and distorted facts. Furthermore, the
measure in question was made in disregard of the applicants' and their
children's Christian faith and traditions.
2. The applicants also complain about the placements of Johan and
Stefan in their respective homes where, allegedly, they have received
inferior treatment or none at all. Furthermore, they have been placed
in non-Christian settings which shows a contempt for their Christian
faith. The placements constitute a denial of the parents' right to
educate their children in a religious manner and limit the children's
freedom of religion. Allegedly, Johan and Stefan are not allowed to
attend church services.
3. Moreover, the applicants challenge the decision of the Social
District Council of 19 March 1996 to restrict their access to Johan.
4. The applicants further claim that the court proceedings in the
case have not been impartial, as the courts have had to rely on biased
statements of psychologists employed by the social authorities.
5. The applicants also complain about the courts' refusal to appoint
either of the lawyers designated by them in the case concerning
termination of the care of Stefan.
6. The applicants also claim, inter alia, that Johan and Stefan have
been physically assaulted at their respective homes, that Johan has had
his personal belongings stolen or destroyed, that the treatment of
Stefan has led to his expressing suicidal thoughts and that the
children have been denied their freedom of speech by the restrictions
on telephone calls and by the fact that their sentiments have been
neglected by the social authorities and the courts. Moreover, by
denying the children the right to take part in, inter alia, church
services and recreational activities, their right to freedom of
association has been violated.
The applicants invoke Articles 1, 2, 3, 5, 6, 8, 9, 10, 11, 13,
14, 17 and 25 of the Convention, Articles 1 and 2 of Protocol No. 1 to
the Convention and Articles 1 and 2 of Protocol No. 4 to the
Convention.
THE LAW
1. The applicants complain of the taking into care of their
children. They maintain that the Social District Council investigation
which served as a basis for the taking into care was biased and
contained misinterpretations and distorted facts. Furthermore, the
measure in question was made in disregard of the applicants' and their
children's Christian faith and traditions.
The Commission, however, is not required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of the Articles invoked as, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter ... within a period of
six months from the date on which the final decision was taken". The
Commission recalls that the taking into care of Johan and Stefan became
final by the decision of the Supreme Administrative Court of
6 July 1995 not to grant the applicants leave to appeal. The present
application was introduced on 20 July 1996, which is more than
six months after this decision. It follows that this part of the
application has been introduced out of time and must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicants complain about the placements of Johan and Stefan
in their respective homes where, allegedly, they have received inferior
treatment or none at all. Furthermore, they have been placed in
non-Christian settings which shows a contempt for their Christian
faith. The placements constitute a denial of the parents' right to
educate their children in a religious manner and limit the children's
freedom of religion. Allegedly, Johan and Stefan are not allowed to
attend church services.
The Commission notes first that the applicants did not appeal
against the Social District Council's decision of 10 May 1995 on the
initial placement of Johan. Thus, in respect of this decision, the
Commission is not required to decide whether or not the facts alleged
by the applicants disclose any appearance of a violation of the
Articles invoked as, under Article 26 (Art. 26) of the Convention, it
"may only deal with the matter after all domestic remedies have been
exhausted".
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
It is true that the applicants later requested that Johan be
removed from the home where he was placed. However, soon thereafter
Johan escaped from the home and he is now living with a Christian
family, apparently of his own choice. As a consequence, no decision
has been taken by the Social District Council or the courts on the
question of removal of Johan.
Noting that, after Johan's escape, there was no longer any
practical interest in deciding on the question of removal, the
Commission considers that an examination of this complaint fails to
disclose any appearance of a violation of the rights and freedoms of
the Convention and in particular the Articles invoked.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
As regards the question of the placement of Stefan, the
Commission considers that the complaint should first be examined under
Article 8 (Art. 8) of the Convention, which 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 and morals, or for the protection of the rights and
freedoms of others."
Considering that the placement of Stefan with foster parents
interfered with the applicant's right to respect for his family life
as ensured by Article 8 para. 1 (Art. 8-1) of the Convention, the
Commission finds that it must be examined whether this interference was
justified under the terms of Article 8 para. 2 (Art. 8-2). In this
respect, the Commission recalls that three conditions must be
satisfied: the interference must be "in accordance with the law", it
must pursue one or more of the legitimate aims enumerated in para. 2
and it must be "necessary in a democratic society" for that aim or
those aims.
It has not been contested that the placement was made in
conformity with Swedish law. Moreover, the Commission finds that the
measure had a legitimate aim under Article 8 para. 2 (Art. 8-2), namely
the interests of the child, which in this case fall under the
expressions "for the protection of health or morals" and "for the
protection of the rights and freedoms of others".
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the established case-law of the Commission and the
European Court of Human Rights, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued.
In determining whether an interference is "necessary in a democratic
society", the Commission furthermore has to take into account that a
margin of appreciation is left to the Contracting States. However, the
Commission's review is not limited to ascertaining whether the
respondent State has exercised its discretion reasonably, carefully and
in good faith. Furthermore, it cannot confine itself to considering
the relevant decisions in isolation but must look at them in the light
of the case as a whole. It must determine whether the reasons adduced
to justify the interference at issue are "relevant and sufficient"
(cf. Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988,
Series A no. 130, pp. 31-32, paras. 67-68).
In the present case, the Commission recalls that the County
Administrative Court, in its judgment of 21 August 1995 which was
upheld on appeal, noted that Stefan, in accordance with the applicants'
wishes, had been placed in a special school due to his brain damage.
The school's requirement that he be placed in an HVB had led to the
placement with the foster parents in question, one of the few homes
which accepted children with Stefan's special problems. The court
further noted that no complaints had previously been made against the
foster parents and found that Stefan had had a positive development
with them. Moreover, he was allowed to practise his faith and the
foster parents were willing to take him to church.
The Commission further recalls that both the County
Administrative Court and the Administrative Court of Appeal held oral
hearings at which they heard the parties and certain witnesses. Thus,
the courts cannot be said to have intervened without adequate knowledge
of the case.
In the light of the foregoing the Commission finds that the
decisions on the placement of Stefan were supported by relevant and
sufficient reasons and that, having regard to their margin of
appreciation, the Swedish authorities were reasonably entitled to think
that it was necessary to place Stefan with the foster parents in
question. Accordingly, the Commission concludes that the relevant
decisions can reasonably be regarded as "necessary in a democratic
society" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention. The applicants also invoke, inter alia, Article 9
(Art. 9) of the Convention, which provides the following:
"1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or
in community with others and in public or private, to
manifest his religion or belief, in worship, teaching,
practice and observance.
2. Freedom to manifest one's religion shall be subject
only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of
public safety, for the protection of public order, health
or morals, or for the protection of the rights and freedoms
of others."
The Commission notes that, by the placement of Stefan with the
foster parents in question, no express restrictions were put on his
freedom to manifest his religion. It is true that the applicants claim
that he was placed in a non-Christian setting. The Commission recalls,
however, that when placing Stefan several factors had to be taken into
consideration, including his special needs owing to a brain damage.
The Commission cannot find that, in the circumstances of the case, the
placement with the foster parents in question showed any lack of
respect for his freedom of religion.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants challenge the decision of the Social District
Council of 19 March 1996 to restrict their access to Johan.
The Commission, noting that the decision did not have any
practical effect as Johan, at the time, had already escaped from the
Roslagen Pupils' Home and that it was later revoked by the Council's
decision of 16 April 1996, considers that an examination of this
complaint fails to disclose any appearance of a violation of the rights
and freedoms of the Convention and in particular the Articles invoked.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicants claim that the court proceedings in the case have
not been impartial, as the courts have had to rely on biased statements
of psychologists employed by the social authorities.
The Commission, noting that the courts have held several oral
hearings in the case at which, inter alia, the applicants have been
present and heard, considers that the applicants' submissions fail to
substantiate the present complaint.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicants complain about the courts' refusal to appoint
either of the lawyers designated by them in the case concerning
termination of the care of Stefan. The Commission considers that
this complaint should be examined under Article 6 (Art. 6) of the
Convention, the relevant parts of which read as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair ... hearing ... by [a] ...
tribunal...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require; ..."
The Commission recalls that, although the Convention contains no
provision on legal assistance in civil rights disputes, Article 6
para. 3 (c) (Art. 6-3-c) dealing only with criminal proceedings,
Article 6 para. 1 (Art. 6-1) may sometimes compel the State to provide
for the assistance of a lawyer when such assistance proves
indispensable for an effective access to court (cf. Eur. Court HR,
Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 14-16,
para. 26). However, Article 6 (Art. 6) does not guarantee a right to
choose which lawyer should be appointed by the court (cf., e.g., No.
12152/86, Dec. 9.5.89, D.R. 61, p. 171).
In the present case, the County Administrative Court found that
the applicants were entitled to a legal aid lawyer. The courts,
however, refused to appoint either of the two lawyers designated by the
applicants as they were found not to have the necessary qualifications.
The Commission cannot find that these decisions were arbitrary. It
further notes that the applicants have the opportunity to name another
lawyer who could be accepted by the courts. Thus, the Commission finds
that the relevant decisions do not disclose any appearance of a
violation of the applicants' rights under Article 6 (Art. 6) of the
Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicants also claim, inter alia, that Johan and Stefan have
at times not been allowed to go to school, that they have been
physically assaulted at their respective homes, that Johan has had his
personal belongings stolen or destroyed, that the treatment of Stefan
has led to his expressing suicidal thoughts and that the children have
been denied their freedom of speech by the restrictions on telephone
calls and by the fact that their sentiments have been neglected by the
social authorities and the courts. Moreover, by denying the children
the right to take part in, inter alia, church services and recreational
activities, their right to freedom of association has been violated.
The Commission, having examined the separate complaints as they
have been submitted, considers, however, that they fail to disclose any
appearance of a violation of the applicants' rights under the
Convention and its Protocols and in particular the Articles invoked.It
follows that these parts of the application are also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy