PAULSEN-MEDALEN and SVENSSON v. SWEDEN (no. 2)

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47411/99
by PAULSEN-MEDALEN and SVENSSON
against Sweden (No. 2)

The European Court of Human Rights (Fourth Section), sitting on 30 September 2003 as a Chamber composed of

SirNicolas Bratza, President,
MrsV. Strážnická,
MrM. Fischbach,
MrJ. Casadevall,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 30 November 1998,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Ms Anne-Marie Paulsen-Medalen, born in 1958 and unmarried, lives at Västra Frölunda, a suburb of Gothenburg. The second applicant, Mr Sven-Erik Svensson, born in 1957, lives at Partille, another suburb of Gothenburg. The third applicant is their son J. born on 1 January 1986. They are represented before the Court by Mrs S. Westerberg, a lawyer practising in Gothenburg.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first and second applicants have never been married and have periodically cohabited. The present application is a sequel to a previous application (no. 16817/90) lodged by them and other members of the family on 7 August 1989 with the former European Commission of Human Rights. The previous one concerned various complaints relating to the taking into care in February 1989 of J. and his brother P. (born in July 1984), subsequent refusals to lift the care order and restrictions on access as well as the procedure. On 7 September 1995 the Commission declared the application admissible in respect of Ms Paulsen-Medalen’s complaint about the length of the access proceedings and Mr Svensson’s complaint about the lack of a court remedy to have a determination of his right of access to his son J, while declaring the remainder of the application inadmissible. Like the Commission in its report of 4 September 1996 (former Article 31), the Court in the Paulsen-Medalen and Svensson v. Sweden judgment of 19 February 1998 (Reports 1998-I), unanimously concluded that there had been a violation of Article 6 § 1 with regard to the first applicant but not with respect to the second applicant. It further found unanimously that it was not necessary to examine his complaints under Articles 8 and 13.

The above-mentioned care order is still in force and the children live with their respective foster parents.

In February 1996 the Administrative Court of Appeal limited the mother’s access to J. in accordance with his wishes. J. has since 1995 refused to see his parents more frequently than twice a year and has also stated that he does not wish to see his father alone.

In April 1997 the mother submitted a request to the Social Council for the termination of the care order. She sought in the alternative extended access rights with respect to J. Also the father made an application for a right of access.

The Council requested an investigation by the social services, which submitted a report on 13 June 1997. The applicants have not provided the Court with a copy, but contents of the report are summarised in the judgment of 22 January referred to below, according to which the following was stated. The Social Council (Stadsdelsnämnden) was striving to increase the first applicant’s access to J. and this would take place as soon as J. showed a sign of willingness to do so. He had however expressed that he did not wish to meet his mother more frequently or his father together with his mother and that he still refused to accompany his mother to her home. He was functioning well at school though he pursued consultations with a school psychologist. He needed calm and stability. The Social Council had regular contact with the first applicant concerning the children’s situation and access. Her social situation remained on the whole unchanged.

On 24 June 1997 the Social Council decided not to terminate the care and rejected the applicants’ request for extended access.

The first and the second applicant appealed against the Social Council’s decision to the Gothenburg County Administrative Court (länsrätten). The latter held an oral hearing, at which the first and second applicants were represented by a lawyer and J. was represented by a public counsel.

In so far as concerned J., the first and the second applicants requested the court to grant the latter, with immediate effect, access to J. every other week-end in his home, or such other location as agreed by the first and second applicants, for instance in her home, so that the whole family could meet. The access should take place without any supervision by the social authorities or the foster parents.

The representative of the Social Council recalled an incident at a certain clinic in late 1992 when chaos had prevailed and the first applicant had struck the children. Sometime thereafter, J. wished to reduce the access from a normal level to twice a year, which has turned out to be satisfactory from his point of view. He did not wish to meet his father in the mother’s absence.

The public counsel, representing J., submitted that it would not be reasonable to force J. to increase the access. He had openly stated that meeting his parents twice a year was enough and that he did not wish to meet them beyond that.

By a judgment of 22 January 1998, the County Administrative Court upheld the Social Council’s decision. It held inter alia:

“The County Administrative Court finds that the Social Council’s decision of 24 June 1997 is lawful. ...

On 17 March 1989, when the County Administrative Court reviewed the preparations for taking into public care under the 1980 Act, it found that the [first applicant] had such physical and psychological deficiencies that she could not provide her children with the norms and rules they needed for their social development. She was further unable to provide them with the necessary stimulation. Since the children’s birth she has received intensive support from all levels but, despite this, her children appeared disturbed. From the children’s birth, respectively in 1984 and 1986, until theirs being taken into care in 1989, [the first applicant] had received extensive support as follows. After giving birth, she lived in a special home and when she later got her own home she received support in the form of contact with social welfare officers, childcare personnel, home assistance and a psychologist. For a while she even had a home therapist. Despite all of this, she did not manage to take care of her children herself. In view of this the County Administrative Court found that there were such deficiencies in the children’s care that it constituted a danger to their health and development.

According to what has emerged in the present case, it does not appear that [the first applicant’s] ability to fulfil the children’s needs has improved. It is true that the children have become older but P. has been disturbed in his development and has a strong need for care, including [special education]. Beyond that he needs continuous care of not only practical but also psychological nature, as well as a foreseeable home environment, in order for his needs to be fulfilled. His foster home offers this kind of environment... J. is talented and is doing well at school. Nothing has come to light which suggests that he has any problems in his relations with his fellows. Since early childhood his personality carries a deep emotional disturbance, which may at times be expressed through aggressive and violent behaviour and a need for a structured environment. He has a need for a continued contact with a psychologist even after enjoying a stable home environment where his strengths and weaknesses can be met with understanding and cautious guidance. His foster home provided such a home environment. ...

As regards the question of access, this has been the subject of review on previous occasions. The competent courts had then held that closer contacts than what had been decided would prejudice the boys’ need for security and continuity in the care arrangements. As regards P. the County Administrative Court, having regard to his fragile character and his need for structure and norms, finds his access to his mother adequate. As regards J, it finds that it is most desirable that he meets his parents more often but his own views on the matter should be respected. The access should therefore not go beyond what has been decided by the Social Council. On the other hand, attempts should be made to make him change his attitude in the long run. In the view of the County Administrative Court it would be positive were P. and J. to meet more frequently, which could be a ground for the family to meet more often. A contact person should still be present during meetings, but in the long run, as the boys get older, the Social Council should try without such presence.

In its review the County Administrative Court shall apply the European Convention on Human Rights. It does not find that the limitations on the right to respect for private and family life decided in the present case under the 1990 Act go beyond what can be regarded as a justified interference under Article 8 of the Convention.

The Court has further had regard to the 1989 United Nations Convention on the Rights of the Child. It finds that P.’s and J.’s rights under Article 25 have been fully respected in the measures adopted by the social authroties.”

Both the first and the second applicants appealed against the judgment to the Administrative Court of Appeal (kammarrätten) of Gothenburg. Before the latter court the second applicant also requested termination of the care order. In May 1998 the Administrative Court of Appeal dismissed this request on the ground that he, who was not the child’s custodian, had no locus standi of his own in that issue. For the remainder, it upheld the lower court’s rejection. It stated inter alia:

“Under section 21 of the 1990 Act, a public care measure under section 2 shall be lifted when the measure is no longer necessary or at the latest when the young person concerned has reached the age of 18. It is thus the young person’s need for care which is decisive for whether the public care shall continue. A public care order may be lifted if the conditions at the [biological parent’s] home are such that care outside the home is no longer justified or that the custody holder is able to provide for the special needs of the young person concerned. It must therefore be established that the conditions in the home, which grounded the taking into public care, have ceased to exist and the current situation is satisfactory. As pointed out by the County Administrative Court, it must therefore be ascertained that there has been a continuing and stable improvement in the home conditions.

[The first applicant] lacks on the whole insight into the defects that in 1989 led to the taking into public care of her sons P. and J. It does not emerge that there have been any decisive changes in the situation and this has not even been claimed. The fact that the children have become older is not of decisive importance, in particular as the children have different needs that must be provided for. The public care under the 1990 Act shall therefore continue.

Under section 14 of the Act, a young person’s needs for contact with his parents and other person who has custody of him shall be accommodated as far as possible. If it is necessary in order to achieve the purposes of the public care, the Social Council may decide how access should be exercised. [The second applicant] is not the holder of custody with respect to J. and does not have a right of access according to a judgment or a contract. However, [the first applicant], who is a custody holder, agrees that the he has the access that he claims. The Social Council’s decision and the County Administrative Court ‘s judgment recognise that both of them have a right of access. There is no ground for quashing that decision in so far as concerns access.

In view of the children’s reactions during and after access with  [the first applicant] it must be assumed that the access which now takes place corresponds, both as to time and form, to the children’s present needs for contact. [The first and second applicants’] claim for increase access is therefore rejected.”

Leave to appeal was refused by the Supreme Administrative Court (regeringsrätten) on 5 June 1998.

B.  Relevant domestic law

The decisions disputed in the present case were taken under the Act containing Special Provisions on the Care of Young Persons 1990 (lagen 1990:52 med särskilda bestämmelser om vård av unga – “the 1990 Act”).

Section 14 of the 1990 Act provides:

“The Social Council is responsible for accommodating as far as possible the young person’s needs of contact with his parents or other person who has custody of him.

If it is necessary in order to achieve the purposes of care measures taken under this Act, the Social Council may

1. decide how the right of access to the young person shall be exercised by a parent or other person who has custody of him, or

2. decide that the young person’s place of residence may not be disclosed to the parent or custodian.

The Social Council shall reconsider at least once every three months whether such decision as referred to in the second paragraph continues to be needed.”

According to section 41 of the 1990 Act an appeal may be lodged with the County Administrative Court against a decision of the Social Council with respect to access. The County Administrative Court may review a decision by the Social Council in so far as its subject-matter is covered by section 14 of the 1990 Act (or section 16 of the 1980 Act; see Yearbook of the Supreme Administrative Court, Regeringsrättens Årsbok 1984, 2/38).

The custody of children is regulated in the Children and Parents Code (Föräldrabalken, SFS 1949:381 -“the Code”). In so far as is relevant to the present case, Chapter 6, section 4, of the Code states that if only one parent has custody of the child and both parents wish to share the custody, the court shall, upon the parents’ request, decide in accordance with their wishes provided that joint custody is not evidently incompatible (uppenbart oförenligt) with the best interest of the child.

A court may decide to grant joint custody even if the parents do not live together and do not intend to live together. However, the court may refuse to grant joint custody if it finds that one, or both, of the parents lack the ability to care for the child properly.

Under Chapter 6 Section 7 of the Code, if a parent, who is the sole holder of custody of the child, abuses, neglects or otherwise fails to care properly for the child in a manner which risks causing permanent damage to the child’s health and development, the court shall decide to transfer the custody to the other parent or, if more suitable, to one or two specially appointed custodians. Changes under this provision are reviewed upon the request by the Social Council or when a parent without custody has lodged a request for custody with the court.

COMPLAINTS

The mother complained, on her own behalf and on behalf of her son, under Articles 6, 8 and 13 of the Convention, alleging that the care order violated the son’s right to respect for family life with his father and also her right to respect for family life. She also alleged, on behalf of her son, that he was deprived of taking any legal action against the care order or with respect to his right of access to his father.

The father complained under Articles 6, 8 and 13 of the Convention about the fact that J. was taken into care and remained in care without the possibility for him as a biological father, to take any legal action against the decision. Further, he complained about his limited right of access to his son.

THE LAW

1.  The first and the second applicants, and the first on the third applicant’s behalf, alleged various violations of Article 8 of the Convention, which reads:

“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 Court notes from the outset that the applicants have in a previous application (no. 16817/90), lodged with the Commission on 7 August 1989, complained inter alia about violations of their right to respect for family life as guaranteed by Article 8 of the Convention, on account of the provisional taking into care of J. and his brother P. in February 1989, the definite care order issued shortly thereafter, the maintenance in force of the care order and the implementation of the care. On the latter point the first applicant and her children complained about the conditions in the foster homes and the restrictions on contact. The complaints under Article 8 related to multiple proceedings, notably on the provisional and definite taking into care, successive refusals to terminate the care and restrictions on access, the last decision being the Supreme Administrative Court’s refusal of leave to appeal on 16 March 1995. On 7 September 1995 the European Commission of Human Rights declared all these complaints inadmissible, the one concerning the definite taking into care on grounds of non-exhaustion and the remaining ones as being manifestly ill-founded.

The Court’s review in the present case is limited to the proceedings relating to the Social Council’s rejection of 24 June 1997 of the mother’s renewed request of April 1997 for the termination of the care order and both applicants’ request for extended access rights with respect to J. The disputed decision had been upheld by the County Administrative Court on 22 January 1998 and the Administrative Court of Appeal on 12 May 1998, with respect to which the Supreme Administrative Court had refused leave to appeal on 5 June 1998.

a)  The Court will first deal with certain complaints made by the father and the mother on J.’s behalf, pertaining to the decision-making process.

The father submitted that, not being a holder of custody with respect to J., he lacked standing under Swedish law to challenge before the Swedish courts the refusal to lift the care order. Moreover, he did not have a right of access of his own.

However, it does not appear that he ever used the opportunity available under national law to claim custody with respect to J. Nor has he pointed to any fact or argument suggesting that he was a more suitable carer than the mother and would have had any better prospects of success had he pursued the matter in his own right before the national courts. His complaint must therefore be rejected in so far as concerns the refusal to lift the care order.

As regards access, it should be recalled that the mother had agreed that the father accompany her when visiting J. So he enjoyed de facto access to J., to an extent that was commensurate with the access exercised by her. Furthermore, it seems that, in the relevant proceedings, the couple always acted in concert and that the second applicant’s pursuit of a right of access of his own was aimed at obtaining more access for both. Meanwhile, that aim was not consistent with the rationale for the restrictions placed on access.

Similar complaints were submitted by the mother on J.’s behalf, namely that, until the age of 15, he had no standing to institute legal proceedings on his own. However, it is to be observed that he for his part was represented by a lawyer before the County Administrative Court and the Administrative Court of Appeal. The Court finds nothing to suggest that his views and interests were not adequately heard in those proceedings. Nor does it find, for the reasons stated below, that he in any way felt aggrieved by the existence of such procedural limitations as were invoked by the mother.

It follows that the above complaints relating to the decision-making process were manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4.

b)  The father and the mother, on her own behalf and on behalf of her son, further complained about the substance of the refusal to lift the care order. In this connection, the Court notes that the national courts reiterated the factual background of the taking into care of J. in 1989 and of the successive refusals to lift the order. The measure now under consideration was decided on the ground that the first applicant had not significantly improved in her ability to assume care and that it had not even been argued that this was the case. The fact that J. was now older could not warrant that the care order be lifted. Although he was gifted, was doing well at school and did not have problems in his relations with friends, his emotional disturbances since an early childhood - shown occasionally by an aggressive and violent comportment - made it necessary for him to live in a well-structured home environment. The foster home fulfilled this need. In the light of these reasons, which were supported by expert evidence, the Court finds that the Swedish courts could reasonably consider that it was necessary to maintain the care order into force and is satisfied that they acted within their margin of appreciation. The applicants’ complaint about the refusal to lift the care order does not disclose an appearance of failure to respect the applicants’ rights under Article 8 of the Convention.

It follows that this complaint must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

c)  The father, and the mother on J.’s behalf, complained about the Social Council’s refusal of 24 June 1997 to increase and change the modalities of the parents’ access to J. and the subsequent decisions upholding it.

In this connection, the Court cannot but have regard to the considerations above concerning the maintenance in force of the public care order. It should also be noted that the disputed access arrangement had been applied since February 1996, when the Administrative Court of Appeal had decided to reduce the access to 2½ hours twice a year under supervision. When the matter was being considered by the Social Council at the applicants’ request in June 1997, J., who was 11½year at the time, had been living in a foster home since the age of 3. There he had developed favourably, was happy and had become attached to his foster parents. By the time of the proceedings under consideration it could be said that the foster home placement had become long-term in character.

Furthermore, in its judgment of 22 January 1998 upholding the Social Council’s decision on access, the County Administrative Court reiterated that, on previous occasions, the relevant courts had found that closer contacts would jeopardise J.’s needs for security and continuity in his foster home placement. However, like the Social Council, the County Administrative Court deemed it desirable that J. now meet his biological parents more often but that his own views on the matter should be respected. He had reached the age of 12 and, as it appears, had very clear views on the matter. At the material time, he did not wish to meet his mother or his father to any greater extent than he already did under existing access arrangements. Nor would he accept to accompany her to her home. Attempts should therefore be made towards making him adopt a more positive attitude.

Against this background, and having regard to J.’s age and development at the time when the national administrative and judicial authorities reviewed the case, the Court considers that they were justified in placing the emphasis which they did on his wishes (see Article 12 of the 1989 United Nations Convention on the Rights of the Child). In view of his emotional vulnerability and the risk that forced contacts could have adverse effects on the calm and stability that he needed, contacts beyond the minimum level fixed should evolve according to his own pace (see the Rieme v. Sweden judgment of 22 April 1992, Series A no. 226, p. 72, § 73). The Court is satisfied that the regulation of access was supported by relevant and sufficient reasons and fell within the national authorities’ margin of appreciation.

It follows that also this part of application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 34 § 4.

2.  Referring essentially to the same facts as the complaints under 1 a) above, the father as well as the mother on the son’s behalf, complained of violations of Articles 6 § 1 and 13 of the Convention. In so far as is relevant, these provisions read:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] 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.”

However, the Court, having regard to all of its findings above, does not consider that the applicants had an arguable claim for the purposes of either Article 6 § 1 or Article 13. Accordingly, it finds neither of these provisions applicable in this case. It follows that this part of the application too is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 34 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O’BoyleNicolas Bratza
RegistrarPresident

Full & Egal Universal Law Academy