AS TO THE ADMISSIBILITY OF
Application No. 22378/93
by Anna SALOMONSSON-DOBOROWICZ
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 January 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 19 December 1992
by Anna SALOMONSSON-DOBOROWICZ against Sweden and registered on
28 July 1993 under file No. 22378/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1943, resides at
Södertälje, Sweden. She is unemployed.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant came to Sweden from Poland in the early 1980's. She
married a Swedish man and they had two sons, A, born in 1982 and P,
born in 1983. In 1987 the couple divorced and the applicant was granted
sole custody of A and P. In 1990 she married a Polish man and the same
year they had a son, W. The applicant's present husband lives in
Poland. The applicant also has adult children from an earlier
marriage.
On 22 January 1992 the Chairman of the Municipal District Council
(kommundelsnämnden - "the Council") of Geneta, Södertälje decided,
pursuant to Section 6 of the Act with Special Provisions on the Care
of Young Persons (Lagen med särskilda bestämmelser om vård av unga,
1990:52 - "the 1990 Act"), immediately to take the three children into
public care on a provisional basis. The reason for the decision was
that, owing to a deterioration of the applicant's mental health, there
were such risks with regard to the children's health and development
that a court decision could not be awaited. According to the Council,
it had received reports of maltreatment of the children from the father
of A and P and from the personnel of the children's day-care centre.
Moreover, the applicant had been offered supporting measures by the
Council but had allegedly been reluctant to cooperate with the
authorities.
The Council's decision was the following day brought before the
County Administrative Court (Länsrätten) of the County of Stockholm,
which appointed counsel for the applicant and the children. The
applicant did not consent to the decision. She claimed that it was
based on an insufficient investigation and denied that the children
were not properly cared for or that her mental health had been or was
deteriorating. Moreover, she was willing to cooperate with the
authorities in order to straighten out all misunderstandings that might
have occurred due to her insufficient command of Swedish. Counsel for
the children, however, approved of the taking into care. On
30 January 1992 the Court confirmed the Council's decision.
Between 22 January and 20 February 1992, the three children and,
on a voluntary basis, the applicant were placed in a children's home
in Geneta for an investigation of their situation. In its report, the
children's home stated, inter alia, that the applicant took good care
of her children and that they were close to each other, but that she
was unbalanced and under severe mental stress and that her mood changed
significantly when she was confronted with difficulties, in which
situations she became uncommunicative and very upset. On one such
occasion she left the home with W. While the children's home had not
noticed any problems with W, the report stated that A and P were both
suffering from suppressed sadness and anger. The children's home
concluded that the family was in need of various supporting measures,
but did not take a stand on whether the applicant and her children
should be separated. In an opinion of 15 February 1992, L.K., a
psychologist who had met A and P three times at the children's home,
stated, inter alia, that A and P did not receive adequate support for
their emotional problems from the applicant or other people close to
them. The psychologist did not find that P had any serious emotional
problems, but as concerns A she feared permanent problems. She made the
following conclusions:
(translation)
"1. If the family situation is such that [the applicant]
understands the children's needs and approves of supporting
measures, the children's needs can be satisfied by
preventive measures such as a contact family or a contact
person.
2. If [the applicant], on the contrary, does not understand
the children's needs and denies the need for support, there
is a risk of retardation in the children's development.
3. If [the applicant] has such mental problems that she is
not aware of her illness, the above-mentioned supportive
measures are not sufficient to satisfy the children's
needs."
After a meeting at the Council on 17 February 1992, at which the
applicant, her counsel and the children's counsel were present and
heard, the Council applied to the County Administrative Court for a
care order concerning the three children.
After the applicant had again left the children's home on
20 February 1992, the Council found that the home could not guarantee
the children's security and they were therefore moved the following day
to an investigation home at Torshälla. A and P were soon thereafter
placed in the foster home of an older half-brother, the applicant's
adult son. W remained at the investigation home, where he was soon
joined by the applicant.
On 5 and 17 March 1992, the County Administrative Court held
hearings in the case, at which the applicant was present and assisted
by her counsel. The children were represented by counsel. During the
proceedings, the Court heard representatives of the Council, counsel
for the children, the applicant and, at her request, her adult son. The
applicant stated, inter alia, that she was aware of the need of
supportive measures and that she would accept to see a psychologist
although she did not find it necessary. In addition to the oral
testimony, the Court had at its disposal a report from the Council and
the psychologist's statement.
By judgment of 6 April 1992, the Court decided that A and P
should be taken into public care pursuant to Section 2 of the 1990 Act,
which provides that such orders may be made in cases where, due to
physical abuse, exploitation, inadequate care or some other
circumstances in the home, there is a clear risk of the young person's
health and development being impaired. The Court, however, rejected the
request for public care of W. The Court stated, inter alia, that the
applicant's care of her children was inadequate and that there was a
clear risk that A's and P's health and development would be impaired.
The Court further found that the applicant's approval of voluntary
supportive measures did not sufficiently guarantee that A and P would
receive the necessary care. As concerns W, the Court, however, found
that there was at that moment no clear risk of impairment of his health
and development. The applicant appealed against the judgment.
In a report dated 26 April 1992, the investigation home at
Torshälla gave an account of its observations during the period
21 February - 7 April 1992, during which the applicant and W had stayed
at the home. The report stated, inter alia, that the problems that had
emerged were mainly due to the applicant's cultural background,
communication problems and her difficulties, in a vulnerable situation,
to accept adequate help than her inability to take good care of her
children.
On 14 July 1992 the Administrative Court of Appeal (Kammarrätten)
of Stockholm held a hearing, at which the applicant, her ex-husband,
the children's counsel and representatives of the Council were heard.
The applicant was, at her own request, not represented by counsel but
was assisted by an interpreter.
By judgment of 20 July 1992, the Court rejected the appeal on the
following grounds:
(translation)
"According to [the Council's] written report, inter alia
the following has occurred in [the applicant's] home. [A
and P] have been assaulted. They have been beaten by [the
applicant] using a hanger and a belt. She has threatened
both her ex-husband and [A] with a knife. She has on
several occasions spoken in a violent manner to the boys,
her ex-husband and several other persons. She has, among
other things, threatened to kill herself and the boys. In
October/November 1989 [the applicant] went to Poland and
left the boys with a neighbour saying that she would come
for them in four days. Still after more than fifteen days
she had not informed the neighbour that she would not
return until later. [The applicant] has denied the
truthfulness of the report. The information in the report
is based on continuously recorded notes and it has been
furnished by several persons independent of each other. The
statements are mutually concordant. At the hearing of [the
Court], the children's father, [S.S.], has confirmed that
the report's summary of what he has said is correct. He has
clearly and tangibly described many years of bad
conditions. [The Court] considers, in these circumstances,
that [the applicant's] flat denial is not credible. [The
Court] will therefore base its opinion on the Council's
report.
[The Court] finds this to show that [the applicant's]
mental instability is such that there is a clear risk that
A's and P's development will be impaired. The requirements
for care according to [the 1990 Act] are met, as [the
applicant] has not consented to the necessary care." The
applicant appealed to the Supreme Administrative Court
(Regeringsrätten) which, on 12 November 1992, refused leave
to appeal.
COMPLAINTS
1. The applicant complains, under Article 6 of the Convention, that
the Council and the courts have co-operated and that the courts have
decided without sufficient reason or evidence.
2. The applicant contends that the taking into care of her children
has violated her rights under Article 8 of the Convention.
THE LAW
1. The applicant alleges that the Council and the courts have
co-operated and that the courts have decided without sufficient reason
or evidence. She invokes Article 6 (Art. 6) of the Convention, which,
in its relevant parts, reads as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair and public hearing ... by an
independent and impartial tribunal ..."
The applicant submits that her children were taken into care
without sufficient reason or evidence, as the courts' decisions were
based on the Council's faulty investigation.
As far as the applicant alleges that the courts have decided
without sufficient reason or evidence, the Commission recalls that, in
accordance with Article 19 (Art. 19) of the Convention, its only task
is to ensure the observance of the obligations undertaken by the
Parties to the Convention. In particular, it is not competent to deal
with a complaint concerning errors of law or fact allegedly committed
by domestic courts, except where it considers that such errors might
have involved a possible violation of any of the rights and freedoms
set out in the Convention or its Protocols. The Commission refers, on
this point, to its established case-law (cf., e.g., No. 10153/82,
Dec. 13.10.86, D.R. 49 p. 67, and No. 12013/86, Dec. 10.3.89, D.R. 59
p. 100).
It is true that in this case the applicant also alleges that the
Council and the courts have co-operated. This complaint calls into
question the independence and impartiality of the courts.
However, the Commission notes that the applicant's appeals were
examined by the County Administrative Court, the Administrative Court
of Appeal and, in deciding whether to grant leave to appeal, the
Supreme Administrative Court. Both the County Administrative Court and
the Administrative Court of Appeal held oral hearings. The applicant
was present at those hearings and had the opportunity of presenting any
arguments or documents which, in her opinion, were of importance to the
outcome of the case. Having regard to these facts and as there is
nothing in the file to suggest that the courts were not independent or
impartial, the Commission finds that the complaint does not disclose
any appearance of a violation of the applicant's rights under Article 6
(Art. 6) of the Convention.
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.
2. The applicant further complains that the taking into care of her
children constitutes an unjustified interference with her right to
respect for her family life. She invokes 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 or morals, or for the protection of the rights and
freedoms of others."
The Commission finds that the taking into care of the applicant's
children interfered with her right to respect for her family life as
ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It must
therefore 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 these aims.
As regards the first condition, the Commission finds that the
decision by the courts to take the applicant's children into public
care was in conformity with Swedish law, namely Section 2 of the 1990
Act.
The Commission further finds that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests
of the children, 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" (cf. Eur. Court H.R., Olsson judgment of
24 March 1988, Series A no. 130, p. 31, paras. 64-65).
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the children.
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. That does not
mean, however, that the Commission's review is 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. above-mentioned Olsson judgment, pp. 31-32,
paras. 67-68). Furthermore, certain procedural requirements are
implicit in Article 8 (Art. 8). As regards decisions in child-care
matters, the parents must have been involved in the decision-making
process, seen as a whole, to a degree sufficient to provide them with
the requisite protection of their interests (cf. Eur Court H.R., W v.
the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29,
para. 64).
The Commission recalls that both the County Administrative Court
and the Administrative Court of Appeal held hearings and that the
Council, before its decision to apply for the applicant's children to
be taken into care, held a meeting. On all these occasions the
applicant was present and heard. At the Council meeting and at the
hearing of the County Administrative Court she was assisted by legal
counsel. At the hearing of the Administrative Court of Appeal she was,
at her own request, not assisted by counsel, but was assisted by an
interpreter.
The Commission, therefore, finds that the applicant was
sufficiently involved in the decision-making process.
As regards the taking into care of A and P, the County
Administrative Court found that the applicant's care of her children
was inadequate and that there was a clear risk that their health and
development would be impaired. The Administrative Court of Appeal found
that the applicant's mental instability was such that there was a clear
risk for impairment of A's and P's development.
These conditions are clearly relevant to a decision to take
children into care. However, as such a decision is a serious
interference with the rights protected under Article 8 para. 1
(Art. 8-1) of the Convention, it must be supported by sufficiently
sound and weighty considerations in the interests of the children. In
order to determine whether in the present case the reasons can be
considered "sufficient" for the purpose of Article 8 (Art. 8), the
Commission must further examine the evidence that was available to the
courts (cf. No. 12651/87, Dec. 9.5.89, D.R. 61 p. 176).
In this respect the Commission recalls that the courts had at
their disposal a report by the Council and statements by a psychologist
and by two children's homes. The Council's report was based on
continuous and corresponding information given by several independent
persons. However, the courts' judgments were not founded solely on
written documentation, but also on statements made at the hearings. In
addition to the applicant and her counsel, the children's counsel and
the representatives of the Council, the County Administrative Court
heard the applicant's adult son and the Administrative Court of Appeal
heard the applicant's ex-husband. Thus, the courts had the benefit of
their own impressions of the persons involved.
The Commission further notes that the psychologist who had met
A and P stated that they did not receive adequate support for their
emotional problems and that she feared that A would get permanent
problems. Moreover, after an evaluation of the available evidence, the
Administrative Court of Appeal decided to base its opinion on the
Council's report, which inter alia stated that the applicant had
assaulted and threatened to kill A and P.
Although the opinions expressed in the different statements
varied to some extent, the Commission finds that the decision to take
A and P into care was supported by "sufficient reasons" and that,
having regard to their margin of appreciation, the Swedish authorities
were entitled to think that it was necessary to take A and P into care.
Accordingly the Commission concludes that the decision can reasonably
be regarded as "necessary in a democratic society" within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that also this part of the application is 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.
Secretary to the Second Chamber Acting President of the Second Chamber
(K. ROGGE) (G.H. THUNE)
Full & Egal Universal Law Academy