EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 16817/90
Anne-Marie Paulsen-Medalen
and Sven-Erik Svensson
against
Sweden
REPORT OF THE COMMISSION
(adopted on 4 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-48) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-39). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 40-48). . . . . . . . . . . . . . . . . . .7
III. OPINION OF THE COMMISSION
(paras. 49-70) . . . . . . . . . . . . . . . . . . . . 10
A. Complaints declared admissible
(para. 49). . . . . . . . . . . . . . . . . . . . 10
B. Points at issue
(para. 50). . . . . . . . . . . . . . . . . . . . 10
C. As regards the length of the access proceedings and its
compliance with Article 6 para. 1 of the Convention
(paras. 51-57). . . . . . . . . . . . . . . . . . 10
CONCLUSION
(para. 58). . . . . . . . . . . . . . . . . . . . 11
D. As regards the question of access to court, as secured by
Article 6 para. 1 of the Convention, for the determination
of the second applicant's right of access to his son, J
(paras. 59-67). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 68) . . . . . . . . . . . . . . . . . . . 13
E. Recapitulation
(paras. 69-70). . . . . . . . . . . . . . . . . . 13
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 14
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Swedish citizens, born in 1958 and 1957,
respectively. The first applicant resides at Västra Frölunda and the
second applicant at Partille, Sweden. In the proceedings before the
Commission the applicants are represented by Mrs. Siv Westerberg, a
lawyer practising in Gothenburg.
3. The application is directed against Sweden. The respondent
Government are represented by their Agent, Mr. Carl Henrik Ehrenkrona
of the Ministry for Foreign Affairs.
4. The case concerns the length of the proceedings in which the
question of the first applicant's access to her children, who had been
taken into care, was determined as well as the second applicant's
possibility to obtain a court determination of his right of access to
his son. Both applicants invoke Article 6 of the Convention.
B. The proceedings
5. The application was introduced on 7 August 1989 and registered
on 30 July 1990.
6. On 3 May 1993 the Commission (Second Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 1 November 1993.
The applicants' observations in reply were submitted on
23 December 1993 and 11 January 1994.
8. On 7 September 1995 the Commission declared the above complaints
admissible (see para. 4) whereas a number of other complaints submitted
by the applicants and other members of their family under Articles 6,
8, 13 and 25 of the Convention were declared inadmissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 14 September 1995 and they were invited to submit
further observations on the merits as they wished. The Government
informed the Commission on 18 October 1995 that they had no further
comments to make as regards the merits of the application as declared
admissible. The applicants submitted further observations on 31 October
and 7 December 1995.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reactions, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, 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
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
12. The text of this Report was adopted on 4 September 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. The first applicant came into contact with the social authorities
in 1984 while expecting her first child, P. Following the birth of P,
mother and child stayed first with the first applicant's parents, then
with the second applicant and, as from May 1985 with P's father.
Following the birth of her son J, in 1986, the first applicant and her
sons returned to her parents before she moved to Högsbohöjd in the
summer of 1986. In 1989 the first applicant moved to Västra Frölunda
in order to be closer to her parents. During this period of time the
social authorities constantly provided assistance to the family in the
form of financial support and support from various persons in order to
assist the first applicant in the upbringing of her children.
17. When P was about two years old it turned out that he was
developing slowly and he was put on the list of children entitled to
special assistance from the Board for Help and Assistance to the
Mentally Retarded (Omsorgsstyrelsen).
18. In the light of the family's developments since 1984 the social
authorities commenced an investigation in 1988 into the necessity of
taking the children into care. On 8 February 1989 the chairman of the
Social District Council (sociala distriktsnämnden) in Frölunda-Styrsö
decided, on the basis of this investigation, to take the children
immediately into care on a provisional basis. The children were placed
at the Bö Children's Home in Gothenburg.
19. The first applicant appealed against this decision to the
County Administrative Court (länsrätten) of Gothenburg which, by
judgment of 21 February 1989, upheld the provisional care.
20. By judgment of 7 March 1989 the Administrative Court of Appeal
(Kammarrätten) of Gothenburg rejected the first applicant's further
appeal against the provisional care order. Leave to appeal against this
judgment was refused by the Supreme Administrative Court
(Regeringsrätten) on 5 April 1989.
The care order
21. Following the provisional care order the Social District Council
lodged an application with the County Administrative Court on
27 February 1989 in order to have the children taken into care pursuant
to the 1980 Act with Special Provisions on the Care of Young Persons
(lag 1980:621 med särskilda bestämmelser om vård av unga - hereinafter
"the 1980 Act") considering that the first applicant was unable to
provide the necessary care for the children's health and development.
The application was lodged by the Council following a meeting with the
first applicant and her counsel during which she challenged the
Council's and the social authorities' findings.
22. By judgment of 17 March 1989 the County Administrative Court
decided to take the children P and J into care pursuant to Section 1
of the 1980 Act. The Court concluded that there were such deficiencies
in the children's care as to endanger their health and development.
23. The first applicant appealed against the judgment, initially in
respect of both P and J. She later withdrew the appeal in so far as it
concerned P.
24. Following a supplementary child psychiatric examination and two
oral hearings the Administrative Court of Appeal upheld the care order
regarding J by judgment of 13 February 1990.
25. The first applicant appealed against the judgment. Since her
appeal was lodged out of time the Administrative Court of Appeal
refused, on 22 March 1990, to accept the appeal. On 3 July 1990 the
Supreme Administrative Court upheld the decision of the Administrative
Court of Appeal not to accept the appeal.
The implementation of care
a) The first applicant and her sons
26. As indicated above P and J were taken into care on 8 February
1989 and placed at the Bö Children's Home. On 7 March 1989 and 18 April
1989 J and P, respectively, were placed with foster parents. Initially
no decisions regarding the first applicant's access to her children
were made but it appears that the factual situation during this initial
period, from March 1989 until March 1990, was that she could see her
children once every two weeks for 2½ hours in the foster homes.
Furthermore, she could see them in her own home twice per year for
2½ hours. The second applicant, J's father, normally accompanied the
mother when she visited the foster homes in order to see the children.
27. In early 1990 the first applicant contacted her present
representative, Mrs. Siv Westerberg, following which she requested, on
19 March 1990, confirmation from the social authorities that no
restrictions had been issued in respect of her right to see her
children.
28. On 20 March 1990 the chairman of the Social Council
(stadsdelsnämnden) of Högsbo decided, pursuant to Section 16 of the
1980 Act, to restrict the first applicant's access to her children to
2½ hours in the foster homes every second week. On 27 March 1990,
acting both in her own capacity and also on behalf of her children, the
first applicant appealed against the decision to the County
Administrative Court. She maintained primarily that the decision was
unlawful in that the chairman of the Social Council was not authorised
to restrict access.
29. By judgment of 20 June 1990 the County Administrative Court
quashed the chairman's decision, agreeing with the first applicant.
However, on 6 July 1990 the Administrative Court of Appeal quashed that
judgment upon appeal from the Social Council considering that the
chairman of the Social Council did have the power to restrict access.
The Administrative Court of Appeal furthermore referred the case back
to the County Administrative Court for determination on its merits,
i.e. whether the chairman's restrictions as to the first applicant's
access to her children were acceptable.
30. The first applicant appealed against the Administrative Court of
Appeal's judgment to the Supreme Administrative Court. On 5 November
1990 the Supreme Administrative Court refused leave to appeal.
31. In the meantime the social authorities decided, on 19 June 1990,
to restrict the first applicant's right of telephone communications
with J to twice per week. Furthermore, by decision of 3 July 1990 the
restrictions on access to 2½ hours every two weeks in the foster homes
in respect of both children were maintained. These decisions of 19 June
and 3 July 1990 concerning restrictions on access between the first
applicant and her sons were also brought before the County
Administrative Court for determination.
32. On 28 September 1990 the County Administrative Court held a
hearing in the case following which judgment was pronounced on
3 October 1990. The Court upheld the social authorities' decisions as
regards the first applicant's access to her children.
33. On 8 October 1990 the first applicant appealed on her own behalf
as well as on behalf of her sons against the above judgment to the
Administrative Court of Appeal which, following an oral hearing,
pronounced judgment on 11 January 1991 in which the access arrangements
were upheld.
34. On 22 January 1991 the first applicant and the children,
represented by their mother, applied to the Supreme Administrative
Court for leave to appeal against the judgment of the Administrative
Court of Appeal. Leave to appeal was granted on 23 July 1991.
35. By judgment of 28 June 1993 the Supreme Administrative Court
upheld the lower courts' judgments as regards access.
b) The second applicant and his son, J
36. On 5 February 1991 Mrs. Westerberg applied for access to J on
behalf of the second applicant. Mrs. Westerberg submitted as follows:
(Translation)
"(The second applicant) hereby requests access to his son
(J) to the extent indicated below:
(The second applicant) requests access every week-end from
Friday 17:00 hours until Sunday 17:00 hours starting from
15 February 1991. Access shall take place at (the second
applicant's) home at Partille and without obligatory
presence of other persons. (The second applicant) will
bring and fetch (J) in the foster home.
You are requested to send me immediately, and within one
week, a written notice informing me that you accept this
access arrangement and to inform the foster parents
thereof. In case you consider that you cannot decide in
this matter in your capacity as civil servant I request
that you refer the matter to the Social Council
(stadsdelsnämnden), confirm that such a referral has taken
place and inform me when I may expect the Social Council's
decision."
37. On 11 February 1991 the Chief of the Social Service of District
10, Högsbo, Gothenburg (stadsdelsförvaltningen 10, Högsbo, Göteborgs
Stad) informed the second applicant as follows:
(Translation)
" ... I must point out that it is the Act on the care of
young persons which applies in respect of children in
public care. The provisions therein covering access apply,
as you know, only in respect of the custody holder or in
respect of those who have taken care of the child.
Accordingly, it is only the mother (the first applicant)
who falls under these provisions. A natural father is of
course important for the child and the child has of course
a right of access with this parent but in the light of what
is in the best interest of the child. It is the social
authorities, in this case the foster home department at
Tynnered District (familjehemsverksamheten i stadsdels-
förvaltningen Tynnered), which pursuant to Section 11 of
(the 1990 Act) must decide on (J's) personal circumstances
in the foster home. (The second applicant) is welcome to
discuss the question of access with (the secretary
responsible for foster home care).
... I would like to recall that it concerns a child who has
been placed in a foster home by court order due to a need
of care. It cannot be considered to be in the interest of
a child to be removed from its home every week-end,
especially not in the circumstances in which (J) is. Not
even in divorce cases is it normal that access is granted
with such short intervals and in such cases it often does
not even concern children who have any special need for
care which must be provided in the home where it lives.
What you suggest is that a non-custody holder be granted
access which goes beyond what the custody holder has been
granted."
38. The second applicant did not pursue the matter but it appears
that he contacted the Frölunda social authorities in October 1995
enquiring about access to J. By letter of 6 October 1995 the social
authorities replied as follows:
(Translation)
"A right of access to a child for a person other than the
custody holder does not exist under domestic law. It is,
however, appropriate that a child also meets relatives.
...
The County Administrative Court has decided that (J's)
access to his mother should be limited to twice per year,
to be extended as far as (J) agrees. His access to other
relatives should be considered in this light. Concerning
(the second applicant's) request to meet (J) it could be
said that (the second applicant) participates in the
regular access arrangements every two weeks. Admittedly,
(J) has not appeared more than a few times during the last
year but the aim is that (J) in the future shall attend
more often. This means that (the second applicant) then
will meet (J) on the same conditions as the mother (the
first applicant)."
39. It does not appear that the second applicant has taken any other
initiatives in order establish access to his son, J.
B. Relevant domestic law
The Acts with Special Provisions on the Care of Young
Persons of 1980 and of 1990
40. During the proceedings in the present case the 1980 Act with
Special Provisions on the Care of Young Persons (the 1980 Act) was
replaced by a new Act of 1990 with the same name (the 1990 Act). The
1990 Act entered into force on 1 July 1990. According to the
transitional provisions a care order issued under the 1980 Act shall
be regarded as a care order under the corresponding provision in the
1990 Act. The same applies with respect to decisions on access.
41. In the present case the children were taken into care pursuant
to Section 1 of the 1980 Act which at the time read as follows
(subsections 1 and 2):
(Translation)
"Care is to be provided pursuant to this Act for persons
under eighteen years of age if it may be presumed that the
necessary care cannot be given to the young person with the
consent of the person or persons having custody of him and,
in the case of a young person aged fifteen or more, with
the consent of the young person.
Care is to be provided for a young person if
1. lack of care for him or any other condition in the
home entails a danger to his health or development, or
2. the young person is seriously endangering his health
or development by abuse of habit-forming agents, criminal
activity or any other comparable behaviour."
42. Section 11 of the 1990 Act, which corresponds to Section 11 of
the 1980 Act, stipulates that the responsibility for the care and the
child's personal conditions rests with the Social Council
(socialnämnden). The provision reads as follows:
(Translation)
"The Social Council decides how care of the young person is
to be arranged and where he is to reside during the period
of care.
The Council may consent to the young person residing in his
own home if this may be presumed the most appropriate way
of arranging the care, but care pursuant to this Act is
always to commence away from the young person's home.
If a decision by the Council under subsection one or two
cannot be awaited, the chairman or some other member
appointed by the Council may decide the question. The
decision is then to be reported at the next meeting of the
Council.
The Council or the persons charged with care of the young
person by the Council shall supervise the young person and
take such decisions concerning his personal circumstances
as are necessary for the discharge of care."
43. One of the effects of a care decision is that the Social Council
takes the place of the custodian, or can be said to share the
responsibility for the child with the custodian, although the care
decision does not imply that the custody of the child is transferred
to the Council. The responsibility of the Social Council, after a
decision on public care has been taken, includes decisions in matters
regarding the child's personal conditions that are normally entrusted
to a parent. In performing the care, consultations with the child's
parents should be promoted to the extent possible and a care decision
must not have the effect that a parent is deprived of all influence
when it comes to the child's personal conditions. It is only to the
extent necessary for providing the care that the Social Council takes
over the responsibility of the child from its parents.
44. Section 14 of the 1990 Act which corresponds in substance to
Section 16 of the 1980 Act, places upon the Social Council a duty to
see to it that the child's needs of contacts, inter alia with its
parents, are satisfied. This provision reads as follows:
(Translation)
"It is the responsibility of the Social Council to ensure
that the greatest possible provision is made for the young
person's need of access to parents or other persons having
custody of him.
If necessary in view of the purpose of the care authorised
under this Act, the Social Council may decide
1. how access between the young person and his or her
parents or any other person entrusted with the custody of
the child may be exercised, or
2. order that the young person's whereabouts must not be
revealed to parents or custodians.
The Social Council shall review, at least once every three
months, whether an order of the kind referred to in
subsection two is still needed."
45. The Social Council's authority to decide on restrictions on
access applies only in regard to parents or others who have been
entrusted with custody of the child. Decisions on such restrictions,
therefore, cannot be lawfully taken under Section 14 in regard to other
persons who are not the child's custodian.
46. As regards a parent who has no part in the custody of a child the
legal situation is not clear as far as access rights are concerned. So
far there is no authoritative ruling from the Supreme Administrative
Court clarifying whether or to what extent a parent who has no part in
the custody and who has not been granted access by a court or in an
agreement between the parents, can request a decision of the Social
Council in respect of access. From Swedish case-law, however, it
appears that in so far as the Social Council's decisions as to their
contents must be regarded as falling under Section 14 of the 1990 Act
(Section 16 of 1980 Act) they can be appealed against to the County
Administrative Court (cf. Yearbook of the Supreme Administrative Court,
RÅ 84, 2/38).
47. According to Section 41 of the 1990 Act appeals may be lodged
with the County Administrative Court against a decision of the Social
Council if it has made an order as to where the care of the young
person is to commence or has made an order regarding the transfer of
the young person from the home where he is residing; if it has decided
a question relating to continued care under this Act, has made an
order, pursuant to Section 14, concerning access to the young person
or concerning non-disclosure of his whereabouts. Appeals may also be
lodged against decisions made under Section 22 of the Act as to the use
of preventive measures, decisions concerning access pursuant to
Section 31, or decisions concerning continuing removal prohibitions.
48. Other decisions by the Social Council pursuant to the 1990 Act
are final.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
49. The Commission has declared admissible the first applicant's
complaint concerning the length of the proceedings which determined the
question of access between her and her sons ending with the Supreme
Administrative Court judgment of 28 June 1993. It has also declared
admissible the second applicant's complaint concerning the lack of a
court remedy for the determination of his right of access to his son,
J.
B. Points at issue
50. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention, in that the dispute
concerning the first applicant's access to her sons was not
determined within a reasonable time; and
- whether there has been a violation of the Article 6 para. 1
(Art. 6-1) of the Convention, in that the second applicant
had no court remedy for the determination of his right of
access to his son, J.
C. As regards the length of the access proceedings and its
compliance with Article 6 para. 1 (Art. 6-1) of the Convention
51. Article 6 para. 1 (Art. 6-1) of the Convention reads insofar as
relevant as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by (a) ... tribunal ..."
52. The proceedings in question concerned a mother's right of access
to her children who had been taken into care. The Commission considers
that in such circumstances the purpose of the proceedings was to obtain
a decision in a dispute over "civil rights and obligations" and they
accordingly fell within the scope of Article 6 para. 1 (Art. 6-1) of
the Convention.
53. The proceedings commenced, in the Commission's view, on 20 March
1990 when the chairman of the Social Council of Högsbo decided to
restrict the first applicant's access to her children and they ended
on 28 June 1993 when the Supreme Administrative Court upheld the
decision as regards access. Accordingly, the proceedings lasted
approximately three years and three months.
54. Whereas the first applicant maintains that such a period of time
cannot in the circumstances be considered reasonable the respondent
Government have not submitted further observations on the merits as
regards this complaint but leave it to the Commission to determine
whether the period of time was reasonable.
55. The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (see for example Eur. Court
HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198,
p. 12, para. 30).
56. In the present case the Commission has not found elements which
made the issue of access particularly complex, nor has it been
established that the first applicant's conduct was such as to explain
the length of the proceedings. As regards the conduct of the Swedish
authorities the Commission notes that the question of access was
decided by the County Administrative Court on 3 October 1990 and, on
appeal, by the Administrative Court of Appeal on 11 January 1991. The
period of time involved in these two courts would not, as such, in the
circumstances give rise to criticism. However, the first applicant's
appeal was pending before the Supreme Administrative Court from 22
January 1991 until 28 June 1993, i.e. a period of approximately two
years and five months. The Commission considers that no convincing
explanation for this period has been advanced by the respondent
Government. Furthermore, proceedings concerning a parent's access to
his or her child, who has been placed in public care, require by their
very nature to be dealt with urgently (cf. for example Eur. Court HR,
Johansen v. Norway judgment of 7 August 1996, Reports 1996, para. 88).
The Commission is not satisfied, however, that the proceedings in the
Supreme Administrative Court progressed with a reasonable speed.
57. Accordingly, in the light of the criteria established by its
case-law, recalling the nature of the present case and having regard
to all the information in its possession, the Commission finds that the
length of the proceedings complained of exceeded the "reasonable time"
referred to in Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
58. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards
the length of the proceedings determining the first applicant's access
to her sons.
D. As regards the question of access to court, as secured by Article
6 para. 1 (Art. 6-1) of the Convention, for the determination of
the second applicant's right of access to his son, J
59. The dispute in question concerned a father's right of access to
his son. It is undisputed that this involved a determination of "civil
rights and obligations" and that therefore it falls within the scope
of Article 6 (Art. 6) of the Convention. The Commission furthermore
recalls that this provision which is quoted above in its relevant parts
(see para. 51) secures to everyone a right to have any claim relating
to civil rights and obligations brought before a tribunal, thus
embodying the "right to a court" of which the right of access, that is
the right to institute proceedings before courts in civil matters,
constitutes one aspect (cf. Eur. Court HR, Golder v. United Kingdom
judgment of 21 February 1975, Series A no. 18, p. 18, para. 36).
60. In the present case the second applicant maintains that he could
not obtain a decision on the question of access to his son from the
social authorities which he could, if necessary, appeal against to a
court or tribunal within the meaning of Article 6 (Art. 6) of the
Convention.
61. The Government submit that the legal situation on access is not
quite clear as regards a parent, who has no part in the custody of his
or her children, and where there is no access right granted by a court
or in an agreement between the parents. There is no authoritative
ruling by the Supreme Administrative Court illustrating this particular
problem. The Government maintain, however, that the first applicant
appears to agree that the second applicant should have access to J and
that, therefore, it is unlikely that the Social Council would have
refused to take a formal decision on access also in respect of the
second applicant had he maintained his wish to obtain a decision. Such
a decision could then have been brought before the County
Administrative Court for examination.
62. In the alternative the Government maintain that the second
applicant could have appealed to the County Administrative Court
against the de facto restrictions on his access to his son. Thus, the
Government contend that no violation of the second applicant's right
of "access to court" has been substantiated.
63. The Commission recalls that the second applicant's son, J, was
taken into care on 8 February 1989. Initially no decisions regarding
access were made at all but it appears that the factual situation was
that the first and second applicants (the parents) could meet J once
every two weeks in the foster home and twice per year in the first
applicant's home. It is furthermore undisputed that the second
applicant has access to J in that he normally accompanies the first
applicant when she visits her sons.
64. On 5 February 1991 the second applicant requested access to J
every week-end from Friday 17:00 hours until Sunday 17:00 hours
starting from 15 February 1991. By letter of 11 February 1991 the
social authorities informed the second applicant that he ought to
contact the social authorities in charge in order to discuss the
question of access but that his request appeared unreasonable having
regard to the circumstances of the case. The applicant did not pursue
the matter.
65. In October 1995 the second applicant again approached the social
authorities concerning access to J but, again, he did not pursue the
matter once he had received the social authorities' reply of 6 October
1995.
66. The Commission agrees with the Government that notwithstanding
the absence of an authoritative ruling from the Supreme Administrative
Court on the issue of access in circumstances as those prevailing in
the present case, nothing would have prevented the second applicant
from obtaining, pursuant to Section 14 of the 1990 Act, a formal
decision from the Social Council on access. Indeed the Commission
recalls from its decision on admissibility (appendix, p. 22) that J's
grandparents also requested access to J and, following the reply from
the social authorities, insisted upon, and indeed received, a formal
decision from the Högsbo Social Council of 4 December 1992 to that
effect.
67. Furthermore, the Commission is satisfied that such a decision
could have been brought before the County Administrative Court pursuant
to Section 41 of the 1990 Act which provides that appeals may be lodged
with the County Administrative Court against a decision of the Social
Council if it has made an order, pursuant to Section 14 of the Act,
concerning access. Had such proceedings been brought the second
applicant could have sought to contest the view held by the social
authorities as to his right of access pursuant to Section 14 of the
1990 Act and also the factual grounds on which the exercise of
discretion by the authorities would be based. However, for whatever
reason the second applicant chose not to avail himself of this
possibility. In these circumstances the Commission considers that the
requirement of access to court inherent in Article 6 para. 1 (Art. 6-1)
of the Convention is satisfied. Furthermore, as regards the actual
interpretation of Swedish law in such proceedings the Commission does
not consider it appropriate to examine in the abstract whether this
would give rise to any issue under Article 6 para. 1 (Art. 6-1) of the
Convention.
CONCLUSION
68. The Commission concludes, unanimously, that there has been no
violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards
the second applicant's right of access to court.
E. Recapitulation
69. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards
the length of the proceedings determining the first applicant's access
to her sons (para. 58).
70. The Commission concludes, unanimously, that there has been no
violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards
the second applicant's right of access to court (para. 68).
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy