AS TO THE ADMISSIBILITY OF
Application No. 15467/89
by Jan and Marja IPSONIUS
against Sweden
The European Commission of Human Rights sitting in private on
12 December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 19 July 1989 by
Jan and Marja IPSONIUS against Sweden and registered on
8 September 1989 under file No. 15467/89;
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 are Swedish citizens born in 1941 and 1952,
respectively. They are resident at Norsborg. Mr. Ipsonius is a
technician and Mrs. Ipsonius is a catering assistant by profession.
They have two children together, Anna born in 1982 and Johan born in
1984. Before the Commission they are represented by Mrs. Kerstin
Koorti, a lawyer practising in Stockholm.
The facts of the case, as submitted on behalf of the applicants,
may be summarised as follows.
Particular circumstances of the case
As from August 1986 the applicants' family was, on several
occasions, contacted by the Social District Council (sociala
distriktsnämnden) of Alby under Section 6 of the Social Services Act
(socialtjänstlagen) due to rows during some of which Mrs. Ipsonius had
been assaulted by Mr. Ipsonius, the incidents generally involving
alcohol.
During the summer of 1988 the Social District Council were
informed that the applicants had relapsed into alcoholism and that
there were again rows in the family.
On 21 October 1988 the applicants' children were placed in a
children's home in Klingsta under Section 6 of the Social Services Act.
On 5 November 1988 the children were transferred, in agreement with the
applicants, to the home of the second applicant's sister. On 21
November 1988 the children were again transferred, in agreement with
the applicants, to a children's home (utrednings- och korttidshem) in
Geneta under Section 6 of the Social Services Act for an investigation
of the family situation. The children's home was to be used for
shorter stays.
On 2 February 1989 Mrs. Ipsonius came drunk to the children's day
care center and took Johan away, while Anna refused to go with her. On
the same day the Social District Council of Alby decided to take the
applicants' children into care on a provisional basis, having regard
to the applicants' long and serious abuse of alcohol. The care order
was issued under Section 6 of the 1980 Act with Special Provisions on
the Care of Young Persons (lagen med särskilda bestämmelser om vård av
unga, hereinafter "the 1980 Act"). The decision was confirmed on 16
February 1989 by the County Administrative Court (länsrätten) of the
County of Stockholm.
On 1 March 1989 the Social District Council requested that the
children be taken into care under Section 1, para. 2, sub-para. 1 of
the 1980 Act.
On 6 April 1989 the County Administrative Court, after a hearing,
issued a care order regarding the children.
In the proceedings before the County Administrative Court the
Social District Council referred to a care plan (vårdplan, arbetsplan)
of 23 February 1989, according to which, in order to ensure the
children's future health and development, their need for care could
r
for the moment, best be achieved by providing care under the 1980 Act;
the need of care would best be met by placing them in a family home;
the intercourse with their parents and siblings was of great importance
and was therefore to be encouraged and facilitated; a plan was to be
made in cooperation with the parents in order to have them undergo
treatment; and termination of the care was to be considered in
cooperation with the parents when their alcohol problems were solved.
The plan included an opinion regarding the mental state of the
children of 25 January 1989 submitted by a psychologist. According to
this opinion the enforcement of the care plan was necessary in order
to prevent further difficulties from which the children would otherwise
suffer.
The County Administrative Court found inter alia that the
applicants had been abusing alcohol for a long time and extensively.
It further found that, although the applicants had agreed to the care
plan, it was doubtful whether their consent would last for the whole
of the necessary period of care.
At a hearing before the Administrative Court of Appeal (kammar-
rätten) of Stockholm following the applicants' appeal the Social
District Council again referred to the care plan and argued, in
particular, that the children needed to be placed in a family home for
up to one and a half years and that the parents' consent to the care
plan did not concern possible long term care. Moreover, the aim was to
arrange frequent contacts with the parents. The Social District Council
found, however, that the relationship as such between the parents and
the children was good.
According to the deputy matron of the children's home, who was
heard as a witness, the children's home had no cooperation problems
with the parents. However, when they had previously relapsed into their
abuse of alcohol their behaviour had again become disturbed.
On 2 June 1989 the Administrative Court of Appeal of Stockholm
rejected the applicants' appeal. The Court noted that the family
situation had improved, but found it premature to consider whether it
had improved to such an extent as to allow the public care to be
terminated. It further doubted that the parents' consent to the care
plan would last for the necessary period of care.
The applicants underwent institutional treatment for their abuse
of alcohol, the first applicant for six weeks as from 16 March 1989 and
the second applicant for eight weeks as from 7 March 1989.
Before the Social District Council and the administrative courts
the applicants were represented by their lawyer before the Commission.
The children remained in the children's home of Geneta until
7 March 1990, when the Social District Council revoked the care order
and the children were returned to the applicants.
Relevant domestic law
Under Section 1, para. 2, sub-para. 1 of the 1980 Act care is to
be provided for a young person, if his health or development is
endangered by lack of care or any other condition in the home.
Under Section 5 the care shall be carefully monitored by the
Social Council. The care shall be terminated when it is no longer
necessary.
Under Section 11, paras. 1 and 4 the Social Council shall, when
a care order has been issued under the 1980 Act, decide how care is to
be arranged for the person concerned and where he is to reside during
the period of care. The person shall be kept under surveillance and
decisions concerning his personal circumstances shall be made, to the
extent they are necessary for the discharge of the care. According to
the Government Bill (1979/80:1, Part A, pp. 585, 596) the question
whether a young person should be given care is to be considered by the
County Administrative Board, while it is for the Social District
Council to consider whether care should be given in another private
home, a foster home or an institution.
According to Section 6 of the Social Services Act the Social
Council shall ensure assistance for a person's maintenance and way of
life, provided these needs cannot be ensured in any other way. The
assistance shall ensure reasonable conditions of living and strengthen
the person's possibilities to lead an independent life.
Under Section 22 the Social District Council shall ensure that
persons needing care or accommodation in homes other than their own are
admitted to a family home or to a nursing or residential home. The care
should be designed to promote the person's affinity to his next of kin
and his contact with the home environment.
Under Section 41 of the 1981 Social Services Ordinance
(socialtjänstförordningen) a care order based on unsatisfactory
conditions in the child's home must be reconsidered by the Social
Council regularly and at least once a year.
COMPLAINTS
1. The applicants complain that they could not obtain a judicial
determination of their civil rights. They submit that, as they had not
been consuming any alcohol since 3 February 1989, the care should have
been terminated. Moreover, following the institutional treatment of
their alcohol problems they underwent repeated after-treatment and
joined Alcoholics Anonymous.
The applicants further complain that, contrary to the care plan
invoked by the Social District Council before the administrative courts
in support of its request that the care order be upheld, the children
were never placed in a family home, but remained in a children's home.
However, neither the keeping in force of the care order nor the fact
that the care plan was not being implemented could be challenged before
a court. They allege violations of Article 6 para. 1 of the Convention.
2. The applicants further complain of a violation of Article 13
of the Convention, as they had no effective remedy before a national
authority to challenge the validity of the care plan.
THE LAW
1. The applicants complain that they could not obtain a judicial
determination of their civil rights, as they could not challenge the
keeping in force of the care order or the fact that the care plan
regarding their children was not being implemented by the Social
District Council. They allege violations of Article 6 para. 1
(Art. 6-1) of the Convention, which reads, in its relevant parts:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by
law..."
(a) Insofar as the complaint pertains to the alleged failure to
terminate the care in view of the improved family situation the
Commission recalls that family law rights are civil in character and
therefore fall within the scope of Article 6 para. 1 (Art. 6-1) of the
Convention (see Eriksson v. Sweden, Comm. Report 14.7.88, para. 232,
Eur. Court H.R., Series A no. 156, p. 48, with further reference). A
decision as to whether a child should be taken into public care or kept
in care is, having regard to the effects on the enjoyment of the family
life of the parents, decisive for their "civil rights".
The Commission observes that under the general principles of
Swedish administrative law the applicants could, at any time, have
requested the Social District Council to terminate the care. An appeal
lay to the County Administrative Court, thereafter to the
Administrative Court of Appeal and finally to the Supreme
Administrative Court (regeringsrätten), in the last-mentioned case
provided leave to appeal was granted (cf. Eur. Court H.R., Olsson
judgment of 24 March 1988, Series A no. 130, pp. 25-26, para. 49). The
applicants thus had access to a tribunal in accordance with Article 6
para. 1 (Art. 6-1) of the Convention in order to challenge the keeping
in force of the care order in view of the improved family situation.
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.
(b)The applicants further complain that they could not obtain a
judicial determination of their civil rights, as they could not
challenge before a court the fact that the care plan was not being
implemented by the Social District Council.
It appears that the administrative courts, when deciding on the
necessity of placing and keeping the children in public care, had
regard to the care plan referred to by the Social District Council. The
Commission considers, however, that this plan did not have the
character of a legally binding agreement reached between the Social
District Council and the applicants. Nor was the care plan a formal
decision on where the children were to be placed or how they were to
be treated. Rather, the care plan set out the modalities of the care
and, in this sense, served as a working-plan guiding social workers on
how the care of the applicants' children should be enforced. The
alleged failure of the Social District Council to adhere to the care
plan did therefore not involve any determination of the applicants'
civil rights.
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.
2.The Commission has also examined the application under Article
8 (Art. 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."
Under this provision it must be examined whether the fact that
the applicants' children were kept in public care, notwithstanding the
applicants' abstention from alcohol even before the care plan was
adopted, can be justified for any of the reasons set out in Article 8
para. 2 (Art. 8-2).
The Commission has found above that the care plan cannot be
considered a legally binding agreement or decision. Therefore, there
could be no obligation for the Social District Council to deal with the
children in accordance with the plan. Moreover, it is clear from the
file that the applicants have a background of long and extensive abuse
of alcohol. Their previous attempts to abstain from alcohol had failed,
which fact was also noted by the administrative courts.
In these circumstances the fact that the applicants' children
were not returned to them at an earlier stage must be considered
justified under para. 2 of Article 8 (Art. 8-2) of the Convention for
the protection of the children.
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.
3.The applicants further complain that they had no effective remedy
before a national authority to challenge the validity of the care plan.
They allege a violation of Article 13 (Art. 13) of the Convention,
which reads:
"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 applicants' complaint under Article 13 (Art. 13) is closely
linked to their complaint under Article 6 para. 1 (Art. 6-1) of the
Convention, which the Commission has found above to be manifestly
ill-founded. It follows that the complaint under Article 13 (Art. 13)
of the Convention must also be rejected on the same grounds.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy