FIFTH SECTION
DECISION
Application no. 8610/11
S.J.P. and E.S.
against Sweden
The European Court of Human Rights (Fifth Section), sitting on 16 December 2014 as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
Vincent A. De Gaetano,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 15 October 2010,
Having regard to the decision of 14 February 2014 of the President of the Section to which the case has been allocated to grant the respondent Government’s request to deal with the admissibility of the case separately,
Having regard to the observations submitted by the Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Ms S.J.P., is a Swedish national born in 1969 and the second applicant, Mr E.S., is an Iranian national born in 1964. They live in Sandnes in Norway. They are represented before the Court by Ms J. Beltran, a lawyer practising in Gothenburg.
2. The Swedish Government (“the Government”) are represented by their Agent, Mr O. Widgren, of the Ministry for Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
4. The second applicant came to Sweden in the 1980s and met the first applicant in 1993. They have three children, A (born in December 2002), B (born in December 2003) and C (born in February 2007). The second applicant also has a son, D (born in 1989), from a previous relationship, who has lived with the applicants. The applicants lived in the city of Linköping until May 2007 when the first applicant travelled to Iran with the children.
5. In February 2007, staff at the Neonatal Unit at the University Hospital in Linköping, where C was treated after her birth, contacted the Linköping Social Council (socialnämnden) due to concerns about the family. The staff had observed that the first applicant had difficulties in understanding C’s needs and lacked ability to read her signals. Moreover, she was very withdrawn and took no initiative to feed C or change her nappies. The staff had suggested that she consult a psychiatrist, but the first applicant had refused. Furthermore, when the second applicant had visited the hospital with A and B, the children had been noisy and unruly and staff had had to intervene to calm them. When the staff had informed the applicants about their concern for the children and their intention to contact the social services, the second applicant had responded aggressively.
6. On the basis of the information from the hospital, the Social Council started an investigation into the family’s situation in accordance with Chapter 11, section 1, of the Social Services Act (socialtjänstlagen, 2001:453). They contacted persons from the Neonatal Unit, the primary health care clinic for children and the women’s clinic as well as A and B’s child-minder, all of whom expressed major concerns about how the applicants coped with their family situation and described how they had failed to provide A and B with the necessary structure and rules. The Social Council repeatedly offered the applicants placement in an investigation home, but the applicants refused. Instead, they agreed that a team from the Social Council would visit their home on a number of occasions. It was further decided that the whole family should undergo psychiatric examinations.
7. However, it would appear that the applicants repeatedly refused to let the Social Council team enter their home and, from mid-April, before the investigation was completed, the applicants stopped all contact with the team and informed them that they did not intend to undergo psychiatric examinations. The Social Council unsuccessfully tried to re-establish contact with the applicants. In late May 2007, the first applicant and the children left their home, allegedly to spend time with friends. Several persons who normally had contact with the applicants expressed concerns about the children’s situation and the fact that their whereabouts were unknown to them.
8. On 11 September 2007, the Social Council decided to take all three children into public care immediately on a provisional basis, pursuant to Section 6 of the Special Provisions on the Care of Young Persons Act (lagen med särskilda bestämmelser om vård av unga, 1990:52; hereafter “the 1990 Act”). On 21 September 2007, the County Administrative Court (förvaltningsdomstolen) confirmed the decision of the Social Council, as did the Administrative Court of Appeal (kammarrätten) and the Supreme Administrative Court (Högsta förvaltningsdomstolen) upon further appeal. However, the decision was never enforced since it turned out that the first applicant and the children were in Iran. Friends of the applicants informed the Social Council that the first applicant was afraid to return to Sweden since she feared that her children would be taken into public care. Thus, on 13 February 2008, the Social Council cancelled the care order since it could not be enforced. The first applicant and the children stayed in Iran until October 2008 when the whole family moved to Sandnes in Norway.
2. The taking into public care of the children
9. In May 2009, the local Norwegian Social Council was contacted by A’s school because he had told the school that both he and B had been beaten by the second applicant. The applicants denied the accusations. The Norwegian Social Council decided to initiate an investigation during which it was agreed that the second applicant would live away from the home and that a Social Council Unit would visit the family daily. On 16 May 2009, the applicants and their children disappeared. Subsequently, the second applicant phoned the Norwegian Social Council from a Swedish telephone number, which in turn contacted the Swedish authorities as it suspected that the family might be in Sweden. Moreover, an anonymous person had telephoned the Swedish Social Council to express concerns about the children who, according to this person, were at an address in Linköping. When the Social Council staff went to the address given, the family was not there but their luggage was in the apartment. Consequently, on 25 May 2009, the Social Council decided to take A, B and C into immediate public care on the basis of its previous investigation and since it feared that the family would again flee to Iran.
10. On 28 May 2009, the applicants and their children were stopped at Stockholm Airport on their way to Iran and a team from a Social Council close to the airport assisted in the enforcement of the care order. The report made by the Social Council team which picked up the children at the airport described a chaotic situation. The first applicant as well as B and C had been apathetic while A had been hyperactive. The second applicant had mostly been on the telephone. Neither the first nor the second applicant had reacted when the team had taken the children away with them. A, B and C were all placed in a family home together, but later A was moved to a separate family home since he was hyperactive and required special attention.
11. On 10 June 2009, after holding an oral hearing, the County Administrative Court confirmed the Social Council’s decision to take the children into immediate public care.
12. On 25 June 2009, the Social Council applied to the County Administrative Court for a permanent care order in respect of all three children, in accordance with section 2 of the 1990 Act. The Council maintained that the applicants had shown a serious lack of ability to care for their children, that there was a clear risk of impairment to their health and development if they were not protected and that the applicants opposed the planned necessary care. It submitted a comprehensive investigation report into the family’s situation in support of its request. The report was based, inter alia, on submissions from the children’s temporary family homes, the local health care service, reports based on psychiatric examinations of the children, notes from the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin; hereafter “BUP”) and information from relatives and the Norwegian Social Council.
13. According to the report, none of the children had been accustomed to structure or routines. A maintained that he had been beaten by the second applicant and B had told her family home that she, A and the first applicant had all been beaten by the second applicant. It was mainly the first applicant who had cared for the children. Hospital and Social Council staff, as well as relatives, had for a long time been worried about her psychological health and encouraged her to seek help. She had denied that she needed help and had refused all treatment. All of the children had lacked communication and emotional response from their parents which had affected their psychosocial development and their ability to interact socially with other children as well as adults. A was hyperactive and had difficulties following rules and functioning in social situations. His behaviour corresponded to several of the symptoms of Attention Deficit Hyperactivity Disorder (ADHD). B was remarkably silent and withdrawn. Psychiatrists had assessed that she was traumatised and had recommended therapeutic treatment combined with a safe environment where she did not have to deny her experiences. Both she and C were behind in their language development and lacked the ability to express their emotions. Several instances had, over the years, emphasised the children’s need for emotional contact with the applicants. The second applicant had failed to compensate for the first applicant’s inability in this regard and neither of the applicants had managed to establish routines for the children’s basic needs such as food, hygiene, clothes and necessary medical contacts. Thus, the applicants’ ability to care for their children properly was questioned. The applicants’ impulsive behaviour had led to an unstable and insecure living situation for the children, such as when they had suddenly decided to move to Iran. There was an imminent risk that the applicants would again travel to Iran with their children. All of the children were in need of stability and an environment with clear rules and structure, including stable adults who could compensate for their previous lack of emotional care.
14. The applicants disputed that public care was needed. They were capable parents who cared for and loved their children. They had cooperated with the Social Council in 2007 but had been treated inappropriately and disrespectfully by the authorities. They had not fled to Iran but had gone there to visit family as they did every year. They submitted documentary evidence including medical certificates. According to a Chief Physician of Linköping University Hospital Women’s Clinic, the first applicant had accepted special assistance offered to her after the birth of all three children and had kept to this commitment. It had been noted that she felt great affection for her children. Moreover, according to a physician at the applicants’ local health centre, all the children had demonstrated the ability to make emotional contact and had behaved in a way appropriate for their age.
15. On 20 July 2009, after holding an oral hearing where the applicants and several witnesses were heard, the County Administrative Court granted a permanent care order in respect of each of the three children. It found that, on the basis of all the material in the case, it had been shown that the applicants lacked the ability to care for their children and to understand their needs. This inability had already impaired the children’s health and development in important areas. In the court’s view, there was a real risk of further damage unless the children were given proper care to meet their special needs. Since the applicants did not agree to voluntary care, it was necessary to take the children into public care on a permanent basis.
16. The applicants appealed against the judgment to the Administrative Court of Appeal, maintaining that public care was not necessary for any of their children. They denied that either of them had ever hurt the children and stressed that the public prosecutor, in July 2009, had decided to discontinue a preliminary investigation against the second applicant concerning child abuse. Moreover, there was no medical evidence substantiating any accusations of physical violence. They emphasised that all the children were healthy and behaved in a manner appropriate for their age. They welcomed the fact that A had been diagnosed and were willing to accept appropriate help from the Social Council. The reason for their hasty decision to travel to Iran was that the second applicant’s father had fallen seriously ill. They submitted, inter alia, further medical certificates and an assessment of the Social Council’s investigation issued by an Associate Professor.
17. The Social Council contested the appeal. It stated that A had been diagnosed with ADHD and Oppositional Defiant Disorder and emphasised that he was in need of a structured environment and appropriate help in order to develop in a positive way. B was still traumatised and communicated only through nodding or shaking her head. C was physically active, had become more independent and no longer feared daily sounds, such as the vacuum cleaner. The Council submitted a psychosocial investigation report from November 2009, a neuropsychological investigation report dated 26 October 2009 and a medical certificate dated 8 September 2009, all concerning A.
18. The legal representative assigned to defend the children’s best interests supported the Social Council’s stance. During a meeting with the children, A had declared that he wanted to live with his parents and siblings and that there were too many rules where he now lived. He had stated that the second applicant had sometimes beaten him and had sometimes been kind. B had told her family home parents that the second applicant had beaten her with a belt. The representative emphasised the children’s need to see their parents but referred to the extensive material in the case-file which showed that the children had special needs. The investigations had also uncovered clear warning signals that the children had suffered at home. Moreover, the representative found it questionable whether the applicants would agree to voluntary care since they had refused to cooperate with the Social Council on previous occasions.
19. On 11 December 2009, after holding an oral hearing where several witnesses were heard at the applicants’ request, the Administrative Court of Appeal upheld the lower court’s judgment in full. It found that the signs of lack of proper care which had appeared during the investigation in 2007 now appeared even more clearly. The investigations carried out after the decision on public care in June 2009 indicated that all of the children had special needs which had been neglected. Additionally, the court noted that both A and B had told various persons in different situations that they had been beaten by the second applicant. Although these accusations had not led to any charges against the second applicant, the court stressed that this information had to be taken seriously since the main purpose of the 1990 Act was to protect the child. Moreover, the court observed that the Social Council had had difficulties carrying out the investigation correctly, mainly due to the applicants’ unwillingness or inability to cooperate with the authorities. The applicants’ unwillingness to cooperate had also manifested itself in their decision to move twice to another country, which had also jeopardised the children’s need for a secure and stable environment. Making an overall assessment, the appellate court found that the investigations strongly indicated that the applicants had failed to care for their children properly and that they lacked understanding of the special needs of the children and their own inability to care for them. Thus, there was a real risk of damage to the children’s health and development. Lastly, the court noted that both of the applicants had declared that they were willing to receive help from the Social Council while, at the same time, they had refuted the accuracy of the investigation and claimed that the information was fabricated or much exaggerated. They also opposed the care plan developed for the children. Accordingly, there were valid grounds to take the children into public care.
20. The applicants appealed to the Supreme Administrative Court which, on 19 May 2010, refused leave to appeal.
21. On 22 September 2010, the Social Council decided that the children should remain in permanent public care.
22. The applicants appealed against the decision to the County Administrative Court. They stated that they were settled in Norway, both of them holding full-time jobs, and that they were in contact with the Norwegian Social Council. They insisted that they had fully cooperated with the Swedish Social Council and done all that had been required of them, including travelling to Linköping for meetings with the Social Council and allowing the Norwegian authorities to visit them at home. Moreover, they were active in an ADHD association and attended courses to understand the condition better and be able to help A. If they were given assistance from the Norwegian authorities and the school, they could take care of A and meet all of his needs. The applicants further questioned whether the Social Council really had a clear plan on how, in due time, to reunite them with their children and contested the Council’s view that they opposed the plan for visits with the children. In fact, the first applicant’s visit with the children had gone very well and the children had also reacted positively to photos and letters from their parents. Taking into consideration the children’s very young age, they emphasised the importance of not waiting too long before starting the reunion process, including more frequent visits, in order to avoid a sudden removal from the family homes which could cause the children emotional harm. Furthermore, the applicants categorically denied that any violence had occurred in their home and they alleged that if any of the children showed signs of trauma, it was most likely due to the traumatic separation from their parents. They submitted, inter alia, medical and other certificates to substantiate their good psychological health.
23. The Social Council contested the appeal. It confirmed that the applicants had cooperated with the authorities and had come to planned meetings with the Council. It attached much importance to the fact that this cooperation needed to continue over time. However, it maintained its view that the applicants opposed the visiting plan since they had requested that the public care of their children be lifted and the children be returned home and since they opposed further care under the provisions of the Social Services Act. Although both of the applicants had demonstrated improvements in their capacity to assess the children’s needs, they still lacked basic understanding of how to care properly for their children. The Council stressed that A had been taken into care due to lack of care at home, not because he had been diagnosed with ADHD. Moreover, A repeatedly spoke about how he had been beaten by the second applicant and he had had to be reassured before the meeting with the first applicant that he would return to the family home after the meeting. Thus, the decision on public care was partly based on the need to protect him, as well as B and C. The Council further observed that, as concerned B, a psychologist had stated that there were reasons to believe that she had been neglected or traumatised at a preverbal stage of her life and that, consequently, her problems were not linked to being taken into care. Lastly, turning to C, it was asserted that she needed to be protected from neglect in order to develop positively and have her needs met. The Council repeated that there had been concern for the children for a long time and that its findings were based on an overall evaluation of the children’s situation and their parents’ ability to care for them. It submitted various investigation and evaluation reports about the children which it had used as a basis for its decision to keep them in public care.
24. The children’s legal representative supported the Social Council’s stance.
25. On 20 January 2011, after having held an oral hearing, the County Administrative Court rejected the applicants’ appeal and upheld the permanent care order. It first noted that the applicants demonstrated great affection for their children and wanted them to be well and that they were engaged in activities and receiving assistance to understand the problems. The visit between the first applicant and her children had gone well. However, the court observed that the applicants still denied that they had failed in the care of their children and it found that they continued to lack understanding of the children’s problems and their own ability to meet the children’s special needs. Thus, it found no basis for lifting the care order. Moreover, since the applicants had not agreed to the care plan developed for each child, which included their living in a family home over a longer period of time, there was no basis for voluntary care.
26. The applicants appealed to the Administrative Court of Appeal, maintaining their claims and adding that they had never tried to intervene in the public care of their children but fully cooperated with the authorities in every way possible. They had fully understood that reunion with their children would have to be a gradual process, but it was important that their parent-child links did not disappear. In their view, there was no evidence of any risk that they would flee abroad with their children. Moreover, they considered that the Social Council had based its assessment on old investigations which were no longer relevant. They also questioned for how long the public care would continue, since that might jeopardise the connection between them and their children. They submitted, inter alia, medical certificates and a written observation dated 12 October 2009 and issued by a lecturer concerning the investigations carried out by the Social Council.
27. Both the Social Council and the children’s legal representative contested the appeal. They stressed that all three children had developed positively but that they were still in need of a stable environment. They were undergoing treatment at BUP due to their special needs. The commitment shown by the applicants was positive for the future, but the deficiencies in care which were evident when the children were taken into public care still existed.
28. On 15 April 2011, after holding an oral hearing, the Administrative Court of Appeal upheld the lower court’s judgment in full. It first found that the material in the case indicated that the children still had special needs but that they had developed well since being taken into public care. The court further considered that although the applicants had participated in activities and improved their understanding of A’s special needs relating to his ADHD, they still lacked a more profound understanding of their daughters’ special needs and of their own shortcomings in caring properly for their children. Thus, it concluded that the applicants were not currently in a position to meet their children’s special needs and provide the care they required, for which reason the children had to remain in the family homes. Since the applicants opposed such care, there was no basis on which to end the children’s public care.
29. Upon further appeal by the applicants, the Supreme Administrative Court refused leave to appeal on 15 June 2011.
3. Contact restrictions
30. On 25 May 2009, when the Social Council decided to take A, B and C into immediate public care, it also decided to keep secret the address of the children’s family homes and not to grant the applicants contact rights to visit their children. These decisions were confirmed on 10 June 2009 by the County Administrative Court.
31. On 26 August 2009, the Social Council decided to continue to keep secret the address of the children’s family homes and to limit the applicants’ contact rights by not allowing any visits. The applicants appealed to the County Administrative Court which quashed the Social Council’s decision and, as concerned the contact rights, referred the case back. Consequently, on 16 October 2009, the Social Council issued a new decision denying the applicants any contact rights. In accordance with section 14, paragraph 3 of the 1990 Act, this decision was reassessed by the Social Council on 23 November 2009 but it found no reason to change the previous decision since it considered that there was still a risk that the applicants would intervene in the care of the children if granted contact rights.
32. The applicants appealed against the decision, demanding that it be reversed. They also requested that at least the first applicant should be allowed to visit the children. The applicants pointed to the fact that the children had said that they missed them and stressed that all allegations concerning any sort of abuse were groundless. They denied that they had previously tried to escape the social authorities and emphasised that, even if the authorities believed that there was such a risk, this should not prevent them from being granted contact rights in the presence of representatives of the Social Council. They were also willing to hand over their passports to the authorities.
33. The Social Council contested the appeal. It stated that there were strong reasons to believe that the applicants would intervene in the care of the children and stressed that it was necessary to decide on total restrictions in order to keep the children’s residences secret. Otherwise, there was a risk that the applicants would again take the children with them to another country. It submitted a document issued by the director of the treatment centre where A had been observed which, among other things, stated that A had said that he missed his mother but had also expressed a wish to be like other children and live in a family where he could feel safe. To the staff at the treatment centre, he had described occasions when he had felt unsafe, such as when he and his siblings had lived alone with the first applicant and when he had been beaten by the second applicant. Since A had been placed at the treatment centre, he had developed and his ability to follow routines had greatly improved. It was of utmost importance that this positive development continue. If A were to meet the applicants, the negative consequences would significantly outweigh the positive. A would suffer from a conflict of loyalty which would seriously impede his positive development.
34. On 10 December 2009, after holding an oral hearing, the County Administrative Court upheld the Social Council’s decision. It noted that the applicants had been prohibited from visiting their children for six months and stressed that such extensive restrictions required exceptionally strong grounds. In the court’s view, the applicants were not willing to cooperate with the authorities and had repeatedly demonstrated a tendency to evade the Social Council’s investigations into their family situation. It further noted that all of the children were in need of special care and stability in order for their development to progress positively. On the basis of the investigation, the court found that, if the applicants were granted contact rights to visit the children, there was a real risk that the second applicant, in particular, would intervene in the public care of the children. Moreover, the court considered that since there was a risk that the children’s residence addresses would be disclosed even if the first applicant visited the children alone, she could not be allowed any contact rights alone either. In reaching this conclusion, the court had regard to the best interest of the children and Article 8 of the Convention.
35. The applicants appealed against the judgment to the Administrative Court of Appeal, maintaining their claims. They stressed that the allegation of violence at home was completely unsubstantiated and that the Social Council’s investigation was insufficient and could not form the basis for the complete prohibition of any contact between them and their children. All three children had said that they missed their parents, in particular their mother, for which reason a supervised visit of the first applicant with her children should be authorised. They had not seen their children for ten months and not even been allowed to talk to them on the telephone or write to them. Moreover, they were ready to hand in their passports and meet the children in a neutral location to eliminate any concerns that the authorities had about them “fleeing” with their children. In the applicants’ view, the prohibition on seeing their children violated Article 8 of the Convention.
36. The Social Council maintained that its decision was justified under the Convention and should be upheld. It was true that A and B had expressed the wish to meet their parents. C had not done so but this was probably because of her late language development. Still, due to the risk that the applicants might escape with the children or obstruct their current care, and since the children had extensive care needs into which the applicants lacked insight, there was a need to prohibit contact rights. Moreover, currently there was no dialogue between the Social Council and the applicants and this had to be re-established before contact rights could be granted.
37. On 8 April 2010, after holding an oral hearing, the Administrative Court of Appeal rejected the appeal. It first noted that, despite the applicants’ submissions, it did not appear that the second applicant had altered his negative attitude towards the Social Council and was prepared to cooperate. The appellate court further observed that Article 8 of the Convention did not contain a general prohibition on complete contact restrictions. Still, it shared the applicants’ concern that the complete contact restriction could harm the children and noted that the Social Council had a great responsibility to ensure that the children’s need for contact with their parents was met. However, for this to be possible, the parents had to cooperate. Moreover, the court had to evaluate whether the combined risks that contact rights would entail for the children’s health and development outweighed the corresponding risks if there were no contact. In the present case, the court considered that the only way to find suitable solutions to avoid the risks involved in contact rights between the applicants and the children was for the Social Council to plan the visits carefully together with the applicants and that the applicants be willing to receive the help and support that they needed. As long as these conditions were not fulfilled, it would not be possible to arrange the contact. Furthermore, the appellate court had carefully considered the possibility of granting only the first applicant contact rights with the children. However, in view of its findings, and the first applicant’s passive attitude, it did not consider this a viable option. Thus, a complete prohibition on contact remained the sole solution in the current situation.
38. Upon further appeal, the Supreme Administrative Court refused leave to appeal on 4 June 2010.
39. On 22 September 2010 the Social Council decided that the first applicant should be allowed to meet the children on one occasion during the autumn of 2010 while the second applicant should not be allowed to meet them.
40. On 22 December 2010 the Social Council decided that the first applicant should be allowed contact rights with the children on two occasions between January and June 2011 and that, during the same period, the second applicant should be allowed to meet the children on one occasion.
41. On 29 June 2011 the Social Council decided that the applicants should be allowed contact rights with their children according to a contact plan. The plan specified that the applicants should meet with their children once every third month, for two hours each time, in a place decided by the Social Council and where staff from the Social Council would be present as well as a counsellor and interpreter (to translate if the second applicant spoke Persian with the children). Moreover, telephone contact was allowed twice a year, for no more than 20 minutes, in a controlled setting.
42. The applicants appealed against the decision to the County Administrative Court, requesting that the contact restrictions be lifted. They stressed that their meetings with their children had gone very well and that they had followed carefully all of the Social Council’s instructions. The children had been happy to see them and hugged them. The fact that they had later had a reaction in their family home was normal since the meetings had been short and in an unnatural environment. Moreover, the children had been given negative information about their parents which had affected them and they probably felt a conflict of loyalty between their parents and their family home. The applicants questioned how a reunion of the family would be possible if they were only allowed to meet their children so rarely and for a short time. They also repeated that they had never escaped with their children to Iran but that they had travelled there once every year to visit relatives. In fact, they had never tried to intervene or obstruct the public care of their children. Instead, they had cooperated and done all they had been asked to do. Both applicants had sessions with psychologists and the second applicant attended a programme called “alternatives to violence”. In this respect, he underlined that he had never been aggressive or violent toward his children.
43. The Social Council maintained its decision. It noted that reunion could only take place once the children’s need for care had ceased. So far the meetings between the parents and children had gone well. B and C had had no negative reactions to the last meeting with the applicants but A had had nightmares. The next meeting would take place in an apartment, to give a more natural environment. The children would also meet with their older half-brother. Moreover, the children met each other on a regular basis, at least every third week, to play and be together. The Social Council also submitted reports of its investigations into the children’s current situation and development.
44. On 27 September 2011, after an oral hearing, the County Administrative Court rejected the appeal. It noted from the outset that only contact restrictions which were necessary for the purpose of the care were allowed and that the best interest of the children should be paramount when making this evaluation. The court then observed that all three children received extra help and assistance to develop and function in their social settings. They were developing well in their family homes. It further noted that the applicants’ meetings with their children had gone well and that their contact rights had been extended. However, in the court’s view, the applicants had accepted various measures because the Social Council had told them to do so, not because they felt that they needed them. Thus, having regard to all the circumstances of the case, the court found that the contact restrictions decided by the Social Council were necessary for the time being. It noted that the Council regularly had to re-evaluate the need for contact restrictions which opened the way for fewer restrictions in the time to come.
45. The applicants appealed against the judgment to the Administrative Court of Appeal and requested that their contact restrictions be eased so that they be allowed to meet their children once every other month. They maintained their submission as presented before the lower court. Moreover, the second applicant stated that he had realised during his therapy sessions that he had been “hard” towards the first applicant which he realised must have affected the children negatively. However, he maintained that he had never been violent towards his children.
46. The Social Council opposed any changes to the contact restrictions. In its view, the current restrictions were necessary to ensure the children’s continued positive development. It acknowledged that the last two meetings between the applicants and their children had gone well, but stated that the telephone conversation had not been satisfactory since the second applicant had asked questions to try to find out where the children were living and A had felt pressured and sad afterwards.
47. On 20 March 2012 the Administrative Court of Appeal granted the appeal and ordered that the applicants should have contact rights with their children once every other month. In all other parts the contact plan was maintained. The court noted that the second applicant had begun to have better insight into his behaviour and could acknowledge that the way he had sometimes treated his wife could be considered as violence. This was a first step in a process of change with the goal of the children returning home. A part of this process was the contact between the parents and their children. The appellate court found that contact restrictions had been necessary in the instant case but considered that, having regard to the current situation, it should be possible to extend the contact rights as requested by the applicants.
48. Neither the applicants nor the Social Council appealed against this judgment to the Supreme Administrative Court.
B. Relevant domestic law and practice
1. Civil liability of the State
49. Chapter 3 of the Tort Liability Act (Skadeståndslagen, 1972:207) deals with the civil liability of the State. According to section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault or negligence.
50. An individual who wants to claim compensation from the State may proceed in either of two ways: he or she may petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and later to the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [Förordning med instruktion för Justitiekanslern, 1975:1345]).
51. According to section 2 of the Limitations Act (Preskriptionslagen, 1981:130), the period of limitation in respect of claims against the State is ten years from the point in time when the claim arose, unless the period has been interrupted beforehand.
2. Compensation for violations of the Convention
(a) Case-law developments
52. In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of criminal proceedings and the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000-XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard.
53. In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the above‑mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation.
54. In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court.
55. Another Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001-III).
56. In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it is now a general principle of law that, to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty cannot be fulfilled even by interpreting national tort law in accordance with the Convention (fördragskonform tolkning), compensation for damages may be ordered without direct support in law.
57. In line with this last judgment, the Supreme Court has continued to deal with cases involving various Articles of the Convention and its Protocols (see, for example, NJA 2010 p. 363, NJA 2012 p. 211, NJA 2012 p. 1038 and NJA 2013 p. 813, dealing with Article 6 § 1 alone or taken together with Article 13; NJA 2013 p. 502 and NJA 2013 p. 746, dealing with Article 4 of Protocol No. 7 alone and in combination with Article 13; and NJA 2013 p. 1055, dealing with Article 6 § 2 and Article 8).
(b) Other developments
58. Since the autumn of 2007 following the Supreme Court’s case-law developments (as set out above), the Office of the Chancellor of Justice has dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. In 2011, the Office estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints, and in more than half of them the Chancellor of Justice had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court’s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,100 and EUR 3,300). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the Security Police register. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention.
59. Moreover, since 2011, there continue to be other individual cases relating to alleged violations of Articles 3, 5, 6, 7, 8, 9, 13 and 14 of the Convention as well as Article 1 of Protocol No. 1 to the Convention, among others. For example, in a decision of 8 February 2012 (dnr 2453-11-40), the Chancellor of Justice held that the reasoning in a District Court’s judgment failed to fulfil the requirements set by Article 6 of the Convention and that the applicant therefore could be awarded compensation for the damage caused by the violation of the Convention. Moreover, in a decision of 27 November 2012 (dnr 4560-12-40), the Chancellor of Justice found that a County Administrative Court, in dismissing the applicant’s appeal against a decision by the Employment Office (Arbetsförmedlingen), had violated his right to access to court (the Chancellor referred to the case of Mendel v. Sweden, no. 28426/06, 7 April 2009) and he was awarded damages.
60. In another decision, dated 24 September 2013 (dnr 2045-13-40), the Chancellor of Justice found that the District Court had violated the applicants’ rights under Article 9 when it had refused to allow the applicants, who were wearing niqabs, to be present at a custody hearing, including the parts of the hearing which were open to the public. However, due to the particular circumstances in the case, no compensation was awarded. Furthermore, the Chancellor of Justice has found that the Enforcement Authority (Kronofogdemyndigheten), when it seized such a large part of the applicant’s retirement pension that it exceeded what was permissible by law, had violated the applicant’s right to property and therefore granted him non-pecuniary damages (dnr 2408-13-40, decision of 26 May 2014). Lastly, in a decision of 17 June 2014 (dnr 4243-13-40), the Chancellor of Justice rejected the requests of 161 applicants who had demanded compensation for violations of Articles 3, 8 and 14 of the Convention because they had had to agree to be sterilised in order to be allowed to undergo sex-change operations. The Chancellor rendered a very detailed decision, considering on the merits each Convention Article relied on before rejecting them.
COMPLAINTS
61. The applicants complain under Article 8 of the Convention that the taking into public care of their three children violated their right to family life. In their view, the interference had no legal basis and was clearly disproportionate. They further complain that the complete prohibition on any contact with their children, and later their very restricted contact rights, also violate Article 8.
THE LAW
62. The applicants complain that the public care order for their children and contact restrictions between them and their children are contrary to their rights under Article 8 of the Convention which, in relevant parts, reads as follows:
“1. Everyone has the right to respect for his private and family life, ....
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.”
A. The Government’s objection under Article 35 § 1 of the Convention
63. The Government contend that the applicants have failed to exhaust domestic remedies available to them since they have not turned to the domestic courts or the Chancellor of Justice to claim compensation on the basis of the alleged violations of the Convention. With reference to the Court’s recent case-law, in particular, Eriksson v. Sweden (no. 60437/08, 12 April 2012), Ruminski v. Sweden ([dec.], no. 10404/10, 21 May 2013) and Marinkovic v. Sweden ([dec.], no. 43570/10, 10 December 2013), the Government argue that this remedy has to be considered sufficiently clear and available to the applicants for the purpose of Article 35 § 1 of the Convention at the time when the application was lodged with the Court. They also note that since the limitation period of such a claim is ten years from the point in time when the damage occurs, the remedy is still open to the applicants.
64. Moreover, the Government point out that both the Supreme Court and the Chancellor of Justice have examined complaints under Article 8 of the Convention. They also observe that there is settled case-law from the Court on the issues of public care of children and contact restrictions. Furthermore, the Government submit that it is clear from the Court’s case‑law that it accepts compensation as suitable redress for violations of the Convention and they see no reason why this should not apply in the present case.
65. The applicants disagree with the Government. They argue that they have exhausted domestic remedies and that the application should be declared admissible. They stress that their complaints under Article 8 of the Convention were dealt with by the administrative courts during the proceedings relating to public care and contact restrictions. Moreover, they are not interested in monetary compensation for the violations of the Convention. They want to have extended contact rights with their children and, most of all, they want the children to be returned to them. In their view, monetary compensation may not be suitable and acceptable in all cases. Furthermore, to the applicants’ knowledge, the Chancellor of Justice has not examined any case concerning alleged violations of Article 8 in relation to public care and contact restrictions and thus they do not consider that it should be considered an effective remedy in practice. Suing the State before the general courts would be time-consuming and potentially very costly.
66. The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references).
67. The only remedies which should be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).
68. In the present case, the Court observes that, in the proceedings concerning the total contact restrictions, the applicants among other things expressly relied on the Convention before the national courts, arguing that the prohibition on seeing their children violated Article 8. Moreover, although they do not seem to have expressly relied on Article 8 during the proceedings relating to the public care, the applicants’ arguments in substance, that the taking into public care of their children and keeping them in care violated their family life, fall squarely within this provision. It follows that they must be considered to have done what was required of them in order to afford the national authorities the opportunity to remedy the violations alleged by them.
69. The Government claim, however, that the applicants have failed to avail themselves of remedies capable of affording them sufficient redress in the form of compensation for the alleged violations, since they can turn to the Chancellor of Justice or the ordinary courts.
70. In this respect, the Court notes that, in its recent case-law, it has considered that there exists an effective remedy in Sweden that is capable of affording redress in respect of alleged violations of the Convention. The Court has referred to the case-law established by the Swedish Supreme Court and the Chancellor of Justice over recent years and their continued development of case-law in this domain. Consequently, the Court has found that potential applicants may, as a general rule, be expected to lodge a domestic claim to seek compensation for alleged breaches of the Convention before applying to the Court (see Eriksson, §§ 50-52, cited above; Ruminski, §§ 37 and 39, cited above; and Marinkovic, §§ 39 and 41, cited above).
71. The Court observes though that the above-mentioned cases dealt with alleged violations of the Convention which had already taken place and the situation had ended and where compensation therefore was deemed an appropriate and sufficient remedy. Thus, both Eriksson and Ruminski concerned alleged violations of Article 6 of the Convention, in particular, the lack of an oral hearing before the domestic courts, and Marinkovic concerned the fairness and length of custody proceedings, also under Article 6. While the applicant in Marinkovic also relied on Article 8 claiming that, due to the excessive length of the custody proceedings, he no longer had any contact with his children, this situation could also most appropriately be redressed by compensation since both children had reached maturity and refused to see their father at the time of the Court’s examination of the case.
72. In the present case, the situation is quite different. The Court notes that the applicants’ children are still in public care and that contact restrictions continue to be in force. The applicants have also stated that the main object of their application is not to obtain monetary compensation but to have the contact restrictions lifted and their children returned to them. Thus the alleged violations relied on by the applicants are on-going. In such a case, even if a claim for compensation lodged with the Chancellor of Justice or before the ordinary courts were to be successful, it would not afford sufficient redress to the applicants since it could only result in monetary compensation and not an end to the on-going situation (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999‑II; Lemke v. Turkey, no. 17381/02, § 38, 5 June 2007; and Haralambie v. Romania, no. 21737/03, § 73, 27 October 2009).
73. Consequently, although potential applicants may, as a general rule, be expected to lodge a domestic claim to seek compensation for alleged breaches of the Convention before applying to the Court, there are exceptions to this general rule. Hence, the Court reiterates that the purpose of the requirement of exhaustion of domestic remedies is to afford States the opportunity to prevent or put right the violations alleged against them. To “put right” an alleged violation must primarily be to end or correct the situation, possibly in combination with some form of monetary compensation. Only if this is not possible, or would be unreasonable, does compensation, as a sole remedy, become a sufficient means to redress the wrong suffered.
74. It follows that the Court considers that the Government’s objection as to non-exhaustion must be dismissed.
B. Other admissibility issues
75. The Court notes that, as concerns the Social Council’s decisions on 25 May 2009 to take the applicants’ children into immediate public care and to prohibit all contact between the applicants and their children, these decisions were upheld by the County Administrative Court on 10 June 2009. The applicants could have appealed against this judgment to the Administrative Court of Appeal and, if necessary, further to the Supreme Administrative Court, but failed to do so. Moreover, they did not appeal to the administrative courts against the Social Council’s decision of 16 October 2009 to maintain the complete prohibition on contact, despite the possibility to do so.
76. Likewise, as concerns the Social Council’s later decisions on restrictions to the applicants’ contact rights with their children, dated 22 September 2010 and 22 December 2010, the Court observes that both of these decisions could have been appealed against to the administrative courts but that the applicants failed to do so. Furthermore, although they did appeal against the Social Council’s decision of 29 June 2011 to the County Administrative Court and further to the Administrative Court of Appeal, they did not lodge an appeal against the latter judgment to the Supreme Administrative Court.
77. By having failed to lodge appeals in the above proceedings, which remedy in the Court’s view would have been accessible, adequate and effective, it finds that the applicants have failed to exhaust domestic remedies available to them in accordance with Article 35 § 1 of the Convention. Their complaints in so far as they relate to these sets of proceedings must therefore be declared inadmissible under Article 35 § 4 of the Convention.
78. As concerns the remainder of the proceedings relating to the applicants’ complaints, namely the proceedings leading to the permanent public care of the children, which ended with the Supreme Administrative Court’s decision on 19 May 2010, the proceedings to keep the children in public care, which ended with the Supreme Administrative Court’s decision on 15 June 2011, and the proceedings relating to the continued complete prohibition on contact for the applicants with their children, which ended with the Supreme Administrative Court’s decision on 4 June 2010, the Court notes that they are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. This part of the application must therefore be declared admissible.
For these reasons, the Court, unanimously,
Declares admissible, without prejudging the merits, the application in so far as it relates to the proceedings leading to the permanent public care of the children, the proceedings to keep the children in public care, and the proceedings relating to the continued complete prohibition on contact for the applicants with their children;
Declares inadmissible the remainder of the application.
Claudia WesterdiekMark Villiger
RegistrarPresident
Full & Egal Universal Law Academy