STRAND v. SWEDEN



 

                       AS TO THE ADMISSIBILITY OF

 

                      Application No. 12270/86

                      by Helena STRAND

                      against Sweden

 

 

        The European Commission of Human Rights sitting in private

on 5 October 1988, the following members being present:

 

              MM. J.A. FROWEIN, Acting President

                  S. TRECHSEL

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  H. VANDENBERGHE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

 

             Mr.  J. RAYMOND, Deputy 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 24 June 1986 by

Helena Strand against Sweden and registered on 15 July 1986 under file

No. 12270/86;

 

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

 

        Having regard to the observations submitted by the respondent

Government on 18 March 1987 and the observations in reply submitted by

the applicant on 7 May 1987 as well as the submissions of the parties

at the hearing held on 5 October 1988;

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The facts of the case, as submitted by the parties, may be

summarised as follows:

 

        The applicant is a Swedish citizen, born in 1950.  She is an

office secretary by profession and resides at Bandhagen, a suburb of

Stockholm.  Before the Commission she is represented by Mr Lennart

Hane, a lawyer practising in Stockholm.

 

        The application concerns the taking into care of the

applicant's daughter, born in 1985.

 

 

A.      The particular circumstances of the case

 

I.      On several occasions between 1978 and 1982 the applicant had

voluntary contact with and had been admitted to Långbro hospital on

account of psychotic problems.  After that period she had regular

contacts with a psychiatrist for about two years.  Her stays at the

Långbro hospital never exceeded one month.  She has periodically taken

tranquillising drugs ordinated by her doctors.

 

        The applicant became pregnant in 1984.  Being a single mother,

she envisaged future difficulties, and therefore contacted a social

welfare officer at the Psychosomatic Department of the Söder hospital

in Stockholm.  She asked for support by the Social District Council

and suggested herself that she should be placed in a home for mothers

and small children together with her child.

 

        It was agreed that the applicant and her child, when born,

should be admitted to a special family ward for young mothers at the

Eurenii Minne institution, a home for families or single parents going

through a mental or personal crisis, run by the County Council of the

County of Stockholm (Stockholms läns landsting).

 

        During the pregnancy the applicant continued to work part time

as she had done before.  She has received half a temporary disability

pension since May 1984.  The applicant gave birth to her daughter on

23 February 1985.  The applicant has stated that the father of her

child is BS, with whom she cohabited for a short period during the

summer of 1984.  The question of paternity has, however, not yet been

settled.  At present the applicant is cohabiting with LJ.

 

        After the childbirth the applicant remained for two weeks at

the hospital with her daughter and on 8 March 1985 she went to stay at

the Eurenii Minne institution.  She was to stay there with her

daughter for a period of six weeks on a voluntary basis.

 

        The circumstances of the applicant's stay at the hospital

where she gave birth to her child and her subsequent stay at the

Eurenii Minne institution appear from the contents of a report

prepared by the Social Services Administration on 3 April 1985.

According to an annex to the report signed by Mr.  AD, a paediatrician

at the Sachsska Children's Hospital, and Mrs.  AGW, a social welfare

officer at the maternity clinic at the Söder hospital, the applicant

felt nervous and under pressure for the first few days at the

hospital.  On a couple of occasions she reacted by showing aggressive

behaviour, which worried both the staff and other mothers.  For the

latter part of her stay at the hospital she was persuaded to move to a

private room, which improved the situation considerably.  She managed

the practical care of the child with some support but she needed help

in feeding it at fixed hours and in the right quantities.  According

to the report the staff emphasised that the applicant cared for her

child, wanting it to be close to her as much as possible, but

sometimes found it difficult to understand its needs in various

situations and to remember to watch over it in an adequate way.

Sometimes she seemed to forget that her own needs should be secondary

to the needs of the child.

 

        According to the report the purpose of the applicant's

subsequent stay at the Eurenii Minne institution was to find out what

future support she might need.  The assessment was primarily concerned

with the applicant's ability to relate emotionally to her daughter and

to adequately satisfy the child's basic needs.  The part of the report

covering the applicant's stay at the institution may be summarised as

follows:

 

        At the beginning of her stay at the institution the applicant

was in a state of mental distress.  She suffered from anxiety and was

unable to understand her daughter's needs.  On 12 March 1985 the

applicant started taking medicine on her own initiative.  After a few

days she was more successful in looking after her daughter.  The care

the child received varied, however, according to her mother's mood.

The applicant oscillated from being restless and mentally detached to

exhilaration but also had periods of equanimity when there was a good

chance of talking things over with her.  She did not manage to get a

basic relationship with her child and it was considered that she was

not capable of understanding the child's needs and its signals.

 

        She was not able to comfort the child when it was crying

although the staff of the Eurenii Minne did not consider the child

difficult to comfort.  The applicant's own need for food, rest and her

own anxiety intruded upon her daughter's needs.  The applicant was

informed to this effect.  During a visit to the Social Welfare Office

on 26 March 1985 she was told that the social authorities intended to

find a foster home for her daughter.  She requested that she should be

given more time and that she should be allowed to stay for the

remaining six weeks at the institution as planned.  On 29 March 1985

the applicant's parents said that they were willing to look after

their grandchild.  The social welfare officers dealing with the matter

were not in favour of such a solution, since they considered the

applicant to be heavily dependent on her parents and that this earlier

had created problems in her relations towards them.  The applicant's

parents refused to accept the opinion of the social welfare officers.

 

        On 30 March 1985 the applicant moved to her parents' home as

she found the personnel at the Eurenii Minne critical and even hostile

towards her.  She left her daughter at the institution.  When visiting

the Eurenii Minne the following evening she requested that she be

allowed to take her child with her.  She was told that if she insisted

on this, the social welfare standby unit (socialjouren) would be

called in to demand that the child be taken into care immediately.  On

2 April 1985 the applicant and her mother met two officers of the

 

Social Welfare Office at the Eurenii Minne.  The applicant declared on

this occasion that she no longer agreed to letting her child remain at

the Eurenii Minne.  It was considered that there was a risk of the

child being taken away from the institution and the matter was

reported to the chairman of the Social District Council No. 10

(sociala distriktsnämnden nr. 10) of Stockholm.  Pursuant to Section 6

of the 1980 Act with Special Provisions on the Care of Young Persons

(lagen med särskilda bestämmelser om vård av unga), the chairman

decided on the same day to take the applicant's daughter into care on

a provisional basis.  The Council was informed of and upheld this

decision at a meeting held on 3 April 1985.

 

        The above provisional decision was subsequently brought before

the County Administrative Court (länsrätten).  The Court had access

to a memorandum from the Eurenii Minne institution as well as the

above mentioned report.  The memorandum, signed by the deputy director

of Eurenii Minne, may be summarised as follows:

 

        The applicant was very restless and worried during the first

days of her stay.  She went back and forth without interruption all

the time saying that she felt exhausted.  She asked the staff for

help to limit the number of visits from her parents and she said that

she wanted to limit her contact with them and get emancipated from

them.  When she talked about her parents this was done in a very

aggressive way.  The applicant did not manage to provide good care for

her child during the first days of her stay, neither regarding

practical things nor regarding her psychological needs.  She was

anxious to hold her child and to place her at the nursing-table.  She

did not dare to be left alone with her child, not even for a short

while, and she could not let her child stay with her during nights.

The applicant for no apparent reasons oscillated between different

moods.  This manifested itself in that she ate her food too rapidly,

that for no reason she burst out laughing for long periods, that she

walked around for hours, and that she talked to herself.  On one

occasion the applicant had an emotional outburst and she screamed

again and again "I am so angry, I am so angry" waving her fists close

to the face of one of the members of the staff who carried the

applicant's child in her arms.  Very quickly her mood changed and she

became regretful.  After some time the applicant learned certain

practical things like changing nappies, but she was not at all able to

see or interpret the child's signals.  This led to her carrying out

practical things when there was no need for it.  For example when the

child cried because it was hungry the applicant intended to give her a

bath, and when she was asleep the applicant wanted to change her

nappies.  On many occasions the applicant expressed her great need to

sleep.  She said to members of the staff: "you have got to take care

of (my child), otherwise I will become mentally ill".  The applicant

could not talk to her child, she only repeated certain sentences

straight out into the air.

 

        In the memorandum the following was stated by way of

conclusion:

 

        "We find the situation very serious since the applicant's

        disability could have serious consequences for (the child).

        Her most fundamental needs of security, close contact,

        continuity and immediate satisfaction, will not be met.

        We think that there is a big risk that (the child's) future

 

        will be endangered if her fundamental needs are not met

        without delay in a calm and stable environment where she

        will be able to make contacts with a small number of people."

 

        In the light of the above the County Administrative Court

upheld the decision of the Social District Council to take the

applicant's child into care on a provisional basis on 16 April 1985.

This decision was subsequently upheld by the Administrative Court of

Appeal (kammarrätten) of Stockholm on 30 April 1985.

 

II.     On 29 April 1985 the Social District Council decided to apply

to the County Administrative Court for the taking into care of the

applicant's daughter.  The Court held a hearing in the case on 7 May

1985 during which the Social District Council argued that the written

material in the case showed that the applicant's mental problems were

of such a character that she could not give her daughter the necessary

care.  The applicant, who was present at the hearing and assisted by

counsel, maintained, however, that no facts, conflicts or problems

were at hand, which could substantiate the Social District Council's

allegations.

 

        The County Administrative Court heard as witnesses the

deputy director of the institution where the applicant had been

staying after her daughter's birth, as well as Dr.  OB, who had been

the applicant's psychiatrist from January 1983 to December 1984.  The

Court also heard several other persons, including the applicant's

mother and the man who had been indicated as being the father of the

child.

 

        The Social District Council submitted the following documents

to the Court:  a memorandum dated 24 April 1985, a new report of the

Social Services Administration dated 18 April 1985 and a medical

certificate, and a supplement to it, both signed by Dr.  OB on

18 April 1985.

 

        The medical certificate which does not contain any final

opinion on the care issue stated inter alia that the applicant,

because of her complex relation to her parents, lacked personal

maturity.  She handled stress by denying the problems and by trying to

make reality look better.  These factors led to very great

difficulties in taking care of a child.  Her defence mechanisms were

particularly active because of the pressure she had experienced after

giving birth to the child.  In the supplementary certificate, Dr.  OB

stated that the applicant's mental health had clearly improved during

the last two years and that the pressure and attention she was exposed

to after the child was born would have been hard for anybody to bear.

It was noted that this did not lead to a breakthrough of a psychosis.

The original plan for the applicant and her child was to place both of

them in a supportive environment.  Dr.  OB could not see any absolute

reason not to try this plan by placing the applicant and her child in

a foster family.  Such a placement should be combined with appropriate

psychiatric contacts.

 

        It was noted in the record of the hearing that the members of

the Court before the hearing had studied the written material available.

 

        On 10 May 1985 the County Administrative Court decided in

favour of the Social District Council's application, with two of the

lay members of the Court dissenting.  The Court stated the following:

 

        "It appears from the investigation that (the applicant), on

        several occasions in the years 1978 - 1982, has been admitted

        to Långbro hospital due to psychotic problems. (The applicant)

        has then, from January 1983 to April 1985, had regular contacts

        with a psychiatrist. (The applicant) receives, since May 1984,

        a 50 % sickness allowance.

 

        In this case it is undisputed that (the applicant) cannot

        alone take care of (her daughter).  The question in the case

        is therefore rather whether or not (the applicant), as she

        wants, together with her parents and with certain aid from

        the Social Council, can satisfy (her daughter's) need of care.

 

        In this case both written and oral statements, the latter

        during the hearing in the County Administrative Court, have

        been made concerning (the applicant's) ability to cope with

        the demands of motherhood and how she actually managed to

        satisfy these demands after giving birth at the Söder hospital

        and during the subsequent stay at Eurenii Minne.  According to

        these statements (the applicant) has lacked the ability to

        satisfy many of the demands on her.  According to the expert

        opinion which has been submitted, (the applicant) does not

        reach a level which is acceptable to (her daughter), and for

        that reason not even a family home placement can be considered.

 

        (The applicant) on her part has maintained that she, together

        with her parents and with the aid of the Social Council, would

        be able herself to take care of (her daughter). (The applicant)

        has also referred to the initial plan which inter alia included

        an examination of the possibility of placing mother and child

        with a family.  This plan has not been followed up.  The resources

        of the Social Services Act (socialtjänstlagen) have not,

        therefore,been exhausted. (The applicant) considers that the care

        necessary for (her daughter) can be guaranteed without

        resorting to a decision taken pursuant to the Act with Special

        Provisions on the Care of Young Persons.

 

        When balancing all the elements in the case the County

        Administrative Court finds - even having regard to the

        circumstances mentioned by (the applicant) - that the

        conditions in the home are such as to constitute a danger

        for (the daughter's) health and development.  For these

        reasons, and since necessary care cannot be provided for

        under other Acts, the application shall be granted.

 

        Decision

 

        The County Administrative Court decides, while granting the

        application of the Social District Council, that (the daughter)

        shall be taken into care under Section 1 second paragraph 1

        of the Act with Special Provisions on the Care of Young Persons.

 

        This decision has immediate effect."

 

        The two dissenting lay members stated as follows:

 

        "In this case it is undisputed that (the applicant) cannot

        alone take care of (her daughter).  The question in the case

        is therefore rather whether or not (the applicant), as she

        wants, together with her parents and with certain aid from

        the Social District Council, can satisfy (her daughter's)

        need of care.

 

        The investigation made in the case does not supply a basis for

        any safe evaluation of how the placement of (the applicant)

        and (her daughter) in (the applicant's) parental home would

        develop, nor does the investigation at all give a basis for an

        evaluation of the alternative, namely that (the applicant) and

        (her daughter) would be placed in a family home.

 

        Having regard to the fact that (the applicant) does not intend

        to take care of (her daughter) alone, any danger for (the

        daughter's) health which might exist does not appear to be

        very acute.

 

        The application for the taking into care is therefore not

        granted."

 

        The applicant appealed, through her counsel, to the

Administrative Court of Appeal of Stockholm.  The Court held a hearing

in the case on 7 November 1985, where the applicant was present and

assisted by her counsel.  Eight witnesses were heard, among them

Dr.  OB, Dr.  RS, who is the former Head of the Psychiatric Clinic at

the Söder hospital, the applicant's parents, the man with whom the

applicant was then cohabiting and the deputy director of the institution

where the applicant had been staying after the birth of her daughter.

 

        In support of the applicant's appeal a medical certificate

issued by Dr.  RS on 26 August 1985 was submitted.  After having

examined the files of the social case leading to the taking into care

of the applicant's daughter, including the medical certificates as

well as the reports prepared by the Social Services Administration,

and after having met the applicant on a couple of occasions, Dr.  RS in

this certificate stated inter alia that no psychotic symptoms could be

observed by him as concerned the applicant, nor any signs which with

certainty could be classified as defects following a psychosis.  The

applicant was a special person and her tendency towards mental

insufficiency with streaks of anguish and personal insecurity had in

spite of her good sides not allowed anything but a modest social and

personal adaptation.  Nothing supported the fundamental hypothesis

governing "the observation" of the applicant, i.e. that she was a

woman suffering from a psychosis and that her child therefore should

be protected from her influence.

 

        In his report Dr.  RS furthermore noted that the applicant, who

on previous occasions had turned to the medical service for help and

support in her new situation as a single mother, turned to the social

service to get support.  She apparently wanted to come to a home for

unmarried mothers to get help and support after the birth of the

child.  She could not have imagined that as a result she would be

placed in an institution specialising in care and examination of

mothers with social and mental problems.  The applicant had, obviously

under the threat of otherwise immediately losing her child, accepted

 

a humiliating observation during her stay at the institution.  The

kind of observation she had been exposed to was doubtful.  The

stereotyped "psychological" opinions that had been expressed about the

applicant's ability to "feel the needs of the child" and to "see and

interpret the signals of the child" were not convincing and no great

importance could be attached to them.  The documents of the case did

not prove that the applicant through her mental character or condition

would endanger the mental health of her child.  At this stage it was

too early to determine if she was in need of support from outside her

family in order to take care of the child.

 

        Dr.  RS also referred to an examination of the applicant made

by Dr. ÅH from the psychiatric clinic of the Söder hospital subsequent

to an aggressive outburst of the applicant at the hospital.  After

having examined the applicant Dr. ÅH noted inter alia the following:

 

        "As appears from the note of admission the patient is in

        contact with the psychiatric clinic of Enskede, and the contact

        seems to be working well.  She has great confidence in Dr.  OB

        and considers that he should be brought into the discussion if

        there is an attempt to stop her from moving home to her fiancé,

        the father of her child.  She has previously wanted to go to

        a home for mothers with small children, but has reconsidered

        the matter.  What happened today at the ward was that the

        patient got angry with staff of the ward who wanted to force

        her into a home.  Mental status: Lucid.  Well-oriented.  Calm

        and collected.  Good formal and emotional contact.  Assessment:

        Previously mentally ill woman who today for understandable

        reasons showed anger and aggressiveness.  Not psychotic or in

        need of psychopharmacologic drugs."

 

        It was noted in the records of the hearing that the members

of the Court had studied the written material before the hearing.

 

        In a judgment of 28 November 1985 the Administrative Court of

Appeal confirmed the decision of the County Administrative Court.

In its judgment it stated as follows:

 

        "According to Section 1 second paragraph 1 of the Act with

        Special Provisions on the Care of Young Persons, a person who

        is under 18 years of age must be provided with care under the

        Act, if it may be presumed that the necessary care cannot be

        given to the young person with the consent of his guardians.

        Care is to be provided for the young person if the lack of

        care for him or any other condition in the home entails a

        danger to his health or development.

 

        (The applicant) has not consented to the taking into care

        according to the said Act.

 

        From the investigation in the case and from what was stated

        during the oral hearing before the Administrative Court of

        Appeal the following main elements appear.  (The daughter)

        was placed in a foster home on 18 June 1985.  The stay there

        has been favourable for her and she is, as regards her

        physical and mental status, normally developed.  (The

        applicant) has visited the foster home four times.  A further

        four visits were planned.  Of these, three were cancelled by

        (the applicant).  (The applicant) has had telephone contact

        with the foster home approximately once a week.  Since the

        beginning of September (the applicant) has broken her

        relationship with (her daughter's) father and moved back to

        live with her parents.  Her intention is to take care of (her

        daughter), during the first year with the help of her parents.

 

        The Administrative Court of Appeal shares the evaluation of

        the County Administrative Court that the conditions in the

        home, at the time when the County Administrative Court took

        the decision, were such that a danger existed for the health

        and development of (the daughter).

 

        What appeared during the oral hearing before the

        Administrative Court of Appeal supports the view that the

        conditions in (the applicant's) home are still such that they

        entail a danger to (the daughter's) health or development.

        The conditions for care under the Act with Special Provisions

        on the Care of Young Persons are accordingly fulfilled."

 

        The applicant appealed against this judgment to the Supreme

Administrative Court (regeringsrätten) which, by decision of

28 January 1986, refused to grant leave to appeal.

 

        As mentioned in the above judgment the applicant's child was

placed in a foster home at Vattholma outside Uppsala on 18 June 1985.

She is still at the same foster home.

 

III.    By letter of 23 June 1986 the applicant submitted a motion to

the Supreme Administrative Court for a re-hearing.  She stated inter

alia that the Courts had violated the European Convention on Human

Rights.  She submitted a medical certificate of 21 May 1986 signed by

Dr.  PF-F.  After having examined the same written material on the

applicant as was examined by Dr.  RS and after having seen the

applicant on eight occasions, each time for an hour and a half during

a period of two months, Dr.  PF-F stated inter alia the following in

his certificate:

 

        "(The applicant) has on the occasions when I have seen her

        shown no signs whatsoever of mental illness nor of the kind

        of mental abnormality that could be placed on the same level

        as illness. (The applicant) has shown a normal intellectual

        capacity and even an emotional development that can be said

        to be completely normal.  She has not shown any signs

        whatsoever of a psychosis or of rests of a psychosis, no

        defect condition and no symptoms that would classify her

        condition as neurotic or as some kind of character-

        disturbance of her personality.  (The applicant) has a very

        realistic idea of her situation and a completely adequate

        and reality-oriented judgment.  (The applicant) does not

        find herself in a borderline situation and there are no

        signs of any latent mental illness or of any abnormality

        that could be supposed to become manifest.

 

        Accordingly there are no signs whatsoever pointing in the

        direction of inability or even danger in connection with

        her taking care of her daughter. (The applicant) is fully

        capable both mentally and socially to take complete care

        of her daughter. (The applicant) has also the full

        support of her parents to whom she has got a very good

        relationship and of her fiancé, in order to manage all

        practical and social problems connected with her

        care of her child.  I therefore very firmly regard the

        fact that (the applicant) has not got her daughter in her

        care as being completely unjustified, both medically and

        humanly completely unreasonable, and I suggest that (the

        applicant) should immediately be given full custody of

        her daughter."

 

        The Supreme Administrative Court dismissed the motion on

24 July 1986.

 

        When addressing her motion for a re-hearing to the Supreme

Administrative Court, the applicant also sent a request to the Social

District Council of the City of Stockholm, requesting that the public

care of her daughter should cease immediately and that the applicant,

while the matter was examined, should have an extended right to see

the child.

 

        On 18 December 1986 the Social District Council rejected the

request.  The applicant was permitted to visit her daughter at the

foster home once a month as previously.

 

        The applicant appealed against this decision to the County

Administrative Court and a new medical certificate issued by Dr.  RS on

23 August 1987 was submitted by the applicant in support of her

appeal.  However, on 1 September 1987 the applicant withdrew her

appeal.  In the letter by which she withdrew her appeal the applicant

stated that she had decided, after considering the matter with her

family, that her child should remain with the foster family.  On

3 September 1987 the County Administrative Court struck the case off

its list of cases.

 

        On 3 December 1987 the applicant gave birth to her second

child.  At her request the child has been placed with foster parents

since 18 December 1987.

 

B.      Applicable domestic law and practice

 

        As of January 1982 the basic rules on the responsibility of

the authorities for the young are laid down in the Social Services Act

(socialtjänstlagen).  This Act contains provisions regarding

supportive and preventive measures, which are taken with the consent

and approval of the individuals concerned.

 

        The 1980 Act with Special Provisions on the Care of Young

Persons (lagen med särskilda bestämmelser om vård av unga (the 1980

Act)) is concerned only with cases where the parents have refused to

give their consent to the necessary care.  The two sections of this Act

which provide the prerequisites for taking children into care and for

making such decisions on a provisional basis immediately, i.e.

Sections 1 and 6, read as follows:

 

        Section 1

 

        "Care is to be provided pursuant to this Act for persons

        under 18 if it may be presumed that the necessary care

        cannot be given to a young person with the consent of the

        person or persons having custody of him and, in the case

        of a young person aged 15 or over, if a similar presumption

        can be made concerning his own consent.

 

        Care is to be provided for a young person if

 

        1.  his health or development is endangered by lack of care

        or other conditions in his home, or

 

        2.  the young person seriously endangers his health or

        development by abuse of habit-forming agents, criminal

        activity or any other comparable behaviour.

 

        Care pursuant to sub-section 2 paragraph 2 may also be

        provided for a person aged 18 or over but under 20, if such

        care is more appropriate than other care in view of the

        young person's needs and general personal circumstances."

 

        Section 6

 

        "The social welfare committee may order a young person under

        20 years of age to be taken into care immediately if the young

        person probably needs to be provided with care under this Act

        and a court decision concerning care cannot be awaited owing

        to the risk to the young person's health or development or

        because the continuing inquiry can be seriously impeded or

        further measures prevented.

 

        If a decision by the social welfare committee concerning

        taking into care cannot be awaited, an order may be made by

        the chairman of the committee or by another member appointed

        by the committee.  The order thus made must be reported at

        the next meeting of the committee.

 

        After the social welfare committee has applied for care

        pursuant to the Act, the court may also make an order for

        the immediate taking of the young person into care."

 

        The competence provided for the social welfare committee

according to this Act can also be exercised by one of the Social

Councils of the municipality.

 

        The following is an extract from the preparatory works of the

1980 Act as reproduced in NJA II 1980 (Nytt Juridiskt Arkiv, "Reports

on Legislation"):

 

        "With particular regard to the issue of care without consent

        the Parliamentary Committee stated:

 

        An important point of departure for the reform of the social

        services is that salient features in the handling of individual

        cases should be respect for liberty and the right of the

        individual to decide about his own life.  The aim of the social

        services should be to co-operate with the client as far as

        possible, in order to make him take part in decisions as to

        the planning of treatment and make him co-operate actively

        in carrying it out.  The social services should offer help

        and support, but not take over the individual's responsibility

        for his own life.  Personal initiative and responsibility

        must be made part of care and treatment.  Thus the social

        services may work more actively in a preventive way, and

        the opportunity to achieve more long-lasting results will

        be improved.

 

        This fundamental principle of the new legislation has been

        laid down in Section 9 of the bill on the new Social Services

        Act, which stipulates that the measures taken by the Social

        Council in regard to any individual person should be conceived

        and carried out in co-operation with the person concerned.

        Consequently all powers of the social services to use coercive

        measures on adults have been abolished.  It is true that

        regarding young people and children the possibility of

        providing care outside their home contrary to the wishes of

        the young person or his parents is retained.  In this field

        too, the reform means, however, that the right of the

        individual to be a party to those decisions that concern his

        own fate is more strongly stressed.  The individual should

        be able to turn to the social services confidently and ask

        for help, without risking undesired effects in the form of

        various coercive measures.

 

        At the same time there is unanimity in considering that in

        certain cases society must be able to use coercive measures

        against an individual, whenever this is needed to avoid an

        immediate risk to the life or health of somebody."

 

        (Extract from the Government Bill as regards Section 1:)

 

        "The second paragraph, point 1, indicates that one ground for

        measures on the part of society is that lack of care for a

        young person in his home or some other situation in his home

        constitutes a danger to his health or development.  This rule

        refers to situations where the young person does not get

        sufficient care in his home or is exposed to treatment in his

        home that means danger to his mental or physical health or to

        his social development.  By the word home is to be understood

        the home of the parents, as well as any other home where the

        young person is residing permanently.  Under this description

        come, inter alia, cases where the young person is subject to

        maltreatment in his home.  Even a slight degree of maltreatment

        must be supposed to cause danger to the health or development

        of the young person.  If in such a case the parents oppose

        such measures as the Social Council may consider necessary to

        assure the protection of the young person, application of the

        law may come into focus.  In case there has been maltreatment

        of a more serious kind, the young person should as a matter

        of course be provided with care outside his home, at least

        for some time.

 

        As with the 1960 Act, this provision may also be applied in

        those instances where the parents intend to place the young

        person in an environment that will endanger his health or

        his development, or where they do not prevent him from being

        in such an environment.

 

        This Section thus embraces all those situations where the

        child is being exposed to physical maltreatment or negligent

        care.  This legislation may also be applicable if parents

        endanger the mental health of a child by their personal

        characteristics.  If the child's mental health or

        development is being endangered because of parental behaviour,

        for instance, by way of continuously recurring scenes at

        home owing to abuse of alcohol or narcotics or because of

        the mental abnormality or state of the parents, it should

        be possible to provide care for the child under this Act."

 

        A Social Council (socialnämnd) decides on child care matters.

If the Social Council considers that a certain action is necessary, it

has to apply to the County Administrative Court for a decision.  The

Council or the Chairman of the Council may as a provisional measure in

urgent cases place a child in care.  Such an action must be submitted

to the County Administrative Court within a week and the Court must

take a decision in the matter within a week after the case has been

referred to it.

 

        The County Administrative Court must hold a hearing if a

party so requests.  Parents, witnesses and experts are present at the

hearing.  The parents and the child are each represented by legal

counsel.  The Social Council must present the entire contents of its

investigation (including medical and other reports) and a plan for the

treatment of the child.

 

        An appeal lies from the decision of the Regional

Administrative Court to the Administrative Court of Appeal and a

further appeal to the Supreme Administrative Court is possible.  The

Supreme Administrative Court will only examine the merits of the case

if it first grants leave to appeal.

 

COMPLAINTS

 

        The applicant invokes Articles 6 and 8 of the Convention.

 

        Under Article 6 she maintains that the tribunals deciding in

her case were not impartial.  The doctors, who expressed a view as to

her capacity as guardian, did so not on the basis of scientific

methods but on the basis of a bureaucratic pattern which is not

founded on any objective analysis of the facts.  The courts have long

been subjected to this pattern and cannot therefore offer the parties

an impartial procedure.

 

        Under Article 8 the applicant maintains that her right to

respect for her private and family life was interfered with in a

manner not justifiable under Article 8 para. 2 of the Convention.  She

maintains that she was indeed in a position to take proper care of her

child and that the courts failed in their duty to establish in a

proper way through the production and evaluation of separate expert

opinions that there was a necessity to take her child into care.  The

applicant further maintains that Swedish law does not satisfy the

substantial requirements as to the quality of the law since it is too

vague and without any indication as to the scope of the discretion

conferred upon the authorities.

 

PROCEEDINGS BEFORE THE COMMISSION

 

        The application was introduced on 24 June 1986 and registered

on 15 July 1986.

 

        On 11 December 1986 the Commission decided to invite the

Government to submit written observations on the admissibility and

merits of the application as regards the taking into care of the

applicant's child (Article 8 of the Convention).

 

        The Government's observations were dated 18 March 1987 and the

applicant's observations in reply were dated 7 May 1987.

 

        On 15 May 1987 the Commission granted legal aid to the applicant.

 

        On 10 November 1987 the Commission decided to adjourn the

examination of the case pending the outcome of the Olsson case brought

before the European Court of Human Rights.  The Court pronounced its

judgment in this case on 24 March 1988 (Eur.  Court H.R., Series A no.

130).

 

        On 6 July 1988 the Commission decided to invite the parties to

appear before it at a hearing on the admissibility and merits of the

application.

 

        At the hearing, which was held on 5 October 1988, the parties

were represented as follows:

 

The Government

 

Mr.  Hans Corell, Ministry of Foreign Affairs, agent

Mr.  Carl-Henrik Ehrenkrona, Ministry of Foreign Affairs, adviser

Mrs.  Christina Bergenstrand, Ministry of Health and Social Affairs, adviser

 

The Applicant

 

Mr.  Lennart Hane, counsel for the applicant

Mrs.  Gunilla Hane, assistant

 

 

SUBMISSIONS OF THE PARTIES

 

A.  The Government

 

       As to the admissibility

 

        As appears from the statement of facts, the applicant appealed

on 23 June 1986 to the Supreme Administrative Court at the same time

as she introduced new proceedings with the Social District Council by

claiming that the taking into care of the child should cease.  The

Supreme Administrative Court has rejected her application.  Her

application to the Social District Council was also rejected.  The

applicant appealed against the Council's decision to the County

Administrative Court but withdrew her appeal on 1 September 1987.  It

follows, as far as this last application is concerned, that the

domestic remedies have not been exhausted.  The issue that should be

examined by the Commission thus concerns only two matters, i.e.

whether the decision of 2 April 1985 to take the child into care on a

provisional basis, which was upheld by the County Administrative

Court and the Administrative Court of Appeal, has violated the

applicant's rights pursuant to Article 8 of the Convention, and

whether the judgment of 10 May 1985 entailed any such violation.

 

        Regarding the last mentioned decisions the Government have no

objection as to the admissibility, neither as far as the six months'

rule of Article 26 is concerned, nor regarding the exhaustion of

domestic remedies.  With reference to the observations concerning the

merits of the case the Government, however, maintain that the

application should be declared inadmissible for being manifestly

ill-founded.

 

       As to the merits

 

        The applicant alleges that the taking into care of her child

has interfered with her private and family life and that this

interference has not been justified under Article 8 para. 2 of the

Convention.  She maintains that she is indeed in a position to take

proper care of her child and that her parents, and the man with whom

she is now cohabiting, could be of great help in doing this.  She

alleges that she has not been given a fair chance to take care of her

child herself.  The courts, she maintains, have failed in their duty

to establish in a proper way that there was a necessity to take her

child into care.

 

        The Government admit that the decision to take the applicant's

child into care and to place it in a foster-home constitutes an

interference with her right to respect for her private and family

life.  The issue to be examined is therefore limited to the question

whether this interference can be considered justified under the terms

of Article 8 para. 2.

 

        In order to be justified under Article 8 para. 2 an

interference must satisfy certain conditions:  it must be in

accordance with law, it must pursue one or more of the legitimate aims

enumerated in the provision, and it must be necessary in a democratic

society for that or those legitimate aims.

 

        In accordance with law

 

        The 1980 Act provides the prerequisites for taking a child

into care.  The Commission has found in another case that these

provisions "although to some extent vague cannot be considered as not

satisfying the requirements as to the quality of the law" (Olsson

v.  Sweden, Comm.  Report 2.12.1986, para. 139).

 

        The applicant has in the present case criticised the reasons

given by the courts and the alleged lack of reasons, but she appears

not to have alleged that the decisions taken are incompatible with

Swedish legislation.  Nevertheless the Government wish to emphasise

that the decisions of the courts are in full accord with the

legislation.

 

        The Government are of the opinion that the interference that

has taken place has been in accordance with the law also within the

meaning of the Convention.

 

        The aim of the interference

 

        It appears from the legislation itself that the aim of such

measures that have been taken in this case is to protect children from

living under conditions which endanger their health or their development.

This is clearly a legitimate reason for interference according to

Article 8 para. 2 which falls under the expressions "for the

protection of health and morals" and "for the protection of the rights

and freedoms of others".

 

        The necessity of the interference

 

        It remains to be examined whether the measures taken were

necessary within the meaning of the Convention.

 

        The Government here wish to recall what the Commission has

stated in its Report in the above mentioned Olsson case.  It is not

the Commission's task to make a fresh examination of all the facts

and evidence of a case brought before the Commission in the same way

as may be done by a domestic court.  Thus, it is not the task of the

Commission to establish whether the decisions of the domestic courts

have been correct within the limits set for their examination.  The

Commission's task is only to review, under Article 8, the decisions of

these domestic courts with a view to establishing, in this case,

mainly whether the taking of the applicant's child into public care

was necessary within the meaning of the Convention.  This evidently

involves an examination of the facts and evidence on which the courts

have based their judgments.

 

        However, according to the Government's opinion, such an

examination should not result in a finding that any misjudgment in

this regard, that may be discovered when examining a case, constitutes

a violation of the Convention.  In a case like the present one an area

must be provided within which no violation can be considered to have

occurred even if the courts' decisions can be questioned or even

considered wrong, provided that there are fair reasons for the

conclusion at which the courts have arrived.  Otherwise the procedure

according to the Convention will constitute an extra level of

jurisdiction with a function very similar to an extra level within the

State concerned.  This leads to the conclusion that the Commission's

examination should be limited mainly to establishing that the

decisions taken by the domestic courts have not been based on

irrelevant circumstances, unacceptable criteria or standards or on

other reasons which cannot be considered fair.

 

        In view of this the Government wish to submit the following

as far as the present case is concerned.

 

        It is evident that, when deciding upon a case like the present

one, the courts have to rely upon certificates and evidence given by

doctors, psychologists and social workers.  This is what has been done

in the applicant's case.

 

        When the chairman's decision to take the child into care

immediately was confirmed by the Social District Council, the Council

had access to the report prepared by the Social Services

Administration and to the medical certificate attached.

 

        When the County Administrative Court should decide upon the

decision taken by the chairman, which had been submitted to the Court

for examination, the Court had access also to the memorandum from the

Eurenii Minne.  The picture given in the documents already mentioned

was confirmed and even fortified in that memorandum.  No other facts

were presented before the Administrative Court of Appeal when it

examined the case on 30 April 1985.

 

        The circumstances had not changed when the hearing was held

before the County Administrative Court on 7 May 1985.  The Court

heard witnesses, among others Dr.  OB who had signed the certificate

attached to the memorandum, which the Social District Council had

submitted to the Court a few days before the hearing.

 

        The judgment of the Court is available to the Commission.  As

has been said two of the laymen participating in the judgment were of

a different opinion and wanted to reject the application of the Social

District Council.  This indicates that the case involved a difficult

assessment, and one must conclude that the decision was taken after

careful considerations.

 

        The Administrative Court of Appeal upheld the judgment of the

County Administrative Court.  Also the Administrative Court of

Appeal heard witnesses, among others Dr.  RS, who signed the

certificate which the applicant submitted to that Court.  As appears

from the judgment, the Court did not find that the situation had

changed since the County Administrative Court pronounced its

judgment.

 

        In this case it could be argued that the reasons given by the

courts for their conclusion could be more detailed, analysing the

evidence, certificates and memoranda submitted by the parties.  A

closer examination of the circumstances of the case explains, however,

quite clearly the stand which the courts have taken when applying the

law.  But this is not the main question for an examination under

the Convention.  With reference to what the Government have submitted

in this regard it should be stressed that the circumstances of the

case are relevent as a basis for an examination, the standards

according to which the case has been examined are acceptable and

the examination as a whole must be considered fair.

 

        The courts examined the material and found it necessary

to take the child into care.  The Government maintain that this

interference with the applicant's private and family life was

necessary also within the meaning of the Convention.  The Government,

however, wish to emphasise that the material on which the courts

based their decisions did not include the medical certificate of

21 May 1986 signed by Dr.  PF-F.

 

        The Government thus maintain that there is no violation of

the Convention and that the applicant's complaints in this regard are

manifestly ill-founded.

 

 

B.  The applicant

 

       As to the admissibility

 

        The applicant submits that the allegation of non-exhaustion

is essentially misleading.  If a child in Sweden on an ever so unjust

or unreasonable basis has been taken into care, the parents cannot

refer to any rights when it comes to getting the child back.  They can

all the time, in repeated court proceedings, request to have their

child returned to them but, since there are no legal rules or criteria

stating when the care should be discontinued, the requests to the

courts are almost parodic, not to say misleading.  The Swedish courts

are, as concerns compulsory care decisions, not independent organs but

totally dependent on the social welfare authorities and above all on

the experts these authorities turn to.

 

        As to the merits

 

        Article 6 of the Convention

 

        The applicant maintains that there is in most child care

cases - including this one - an insufficient basis for the provisional

care decision of the chairman of the Social District Council.  The

courts have only the vague generalisations of the social welfare

officers to rely on and in principle they practically always uphold

the unfortunate decision of the chairman.  This is not without

interest since it is an expression of the fact that at least the

County Administrative Courts are not to be considered as courts but

as executive organs completely in the hands of the bureaucracy.  This

appears from the fact that, independently of a strong argumentation

and a strong documentation, it has as far as known never occurred that

a County Administrative Court has quashed a provisional care

decision.

 

        The administrative courts in Sweden have in child care cases

been left with no sphere of independence in relation to the

bureaucracy.  They are completely dependent on the opinions of the

experts no matter how trivial and irrelevant.

 

        The procedure in the administrative courts is in principle not

oral, though the courts in child care cases are obliged to hold a

hearing.  The essential part of the handling of a case consists of the

judges reading the documents submitted by the parties.  This was done

in the present case according to the records of the hearing.

 

        Looking at the formulation of the expert reports it is clear

that these reports are nothing but party petitions finished off with

conclusions, not giving the facts, but simply the judgments the court

hopefully would adopt as its own opinions.  As the documents submitted

by the authorities are automatically given the most credit it is

evident that the applicant already from the start had a disadvantageous

position.  It is the opinion of the applicant that a large part of the

hostile statements about her should have been rejected by the courts,

or at least not accepted in writing, in the form of compiled hearsay

evidence.  No ordinary court in Sweden would accept written statements

from experts as proof.  In the present case the Administrative Court

of Appeal heard several witnesses, but counsel is not allowed to

cross-examine a witness in that court, not even a so-called hostile

witness.  The concept of a "due process" pre-supposes that a

confrontation of witnesses can be made in court.

 

        Article 8 of the Convention

 

        In accordance with law

 

        It could of course be maintained, as the Government do, that

the decisions of the courts in the present case are in accordance with

the law.  This is, however, due only to the fact that the legislation

in question is not only vague, but actually completely without content

and in total lack of such criteria as it must contain as a minimum in

order to constitute a law.  The substantial requirement as to the

quality of the law, i.e. that the law is compatible with the rule of

law and, as a minimum protection for human rights, gives at least some

guidance, direction and thus foreseeability, is not fulfilled in the

present case.

 

        The aim of the interference

 

        The fact that the Government are referring to the criteria "for

the protection of health and morals" and "for the protection of rights

and freedoms of others" of Article 8, is a cynical and revealing

expression of the prevailing idea in Sweden as concerns child care,

which is that an outsider just as well as a parent can satisfy a

child's needs.  The presumption is that the children and the parents

have opposite interests and each parent who is examined must accept

being compared to an abstract ideal parent.  No proof has actually

been submitted in the present case in support of the allegation that

the applicant would not be able to give her child the care it needs.

 

        The necessity of the interference

 

        When ascertaining whether there has been a violation of the

applicant's right to respect for her family life the Commission does

not have to re-examine the facts that formed the basis for the care

decision.  The Commission merely has to examine whether the

interference was at all based on facts.  It is natural that the

Commission considers it hard to re-examine what at first sight might

seem to be an assessment of evidence made by two courts.  The applicant

is of the opinion that the vague formulation of the Swedish

legislation, the practice of the courts to express the reasons for

their judgments in as vague terms as the law and the procedure of the

courts in these cases, which in principle is not oral, justify that

the Commission does not accept the conclusions of the courts in this

case.  Should the Commission thereby become some kind of extra legal

instance it is exclusively the regrettable result of the fact that the

Swedish courts are not independent of the bureaucracy's demands for

power and authority.

 

        The decision to take the applicant's daughter into care was

based on irrelevant and unacceptable abstract circumstances which

should not have been tolerated by the courts.  It was not a question

of minor misjudgments by the courts, but of a total denial of the

applicant's right to her child, due to corrupt amateur-psychology

which gave the bureaucracy unlimited power over the children.

 

        There was no necessity to interfere with the applicant's right

to respect for her family life.  The applicant and her family - i.e.

her parents, who must be considered to be her closest family and whose

rights could also be said to have been violated - were fully capable

of taking care of her daughter, without any need for help from or

intervention by the authorities.

 

        A reason for the applicant's trouble with the social welfare

authorities could have been that she is a single mother.  Prejudice in

Sweden against single parents still exists.  Even if it could be

argued that a foster home in a certain case could satisfy the needs of

a child better than a single parent, this cannot justify an

interference with the parent's right to take care of and educate the

child.  An interference can be justified only if there is an apparent

risk for the child's well-being.  The existence of such a risk has not

been substantiated in the present case.

 

        The Swedish authorities have pointed out, as an aggravating

circumstance as concerns the applicant's possibilities to take care of

her child, that she had problems with her mental health.  In this

respect it is important to remember that the medical service in Sweden

has led to an increased use of health care, including mental health

care, which could be compared to the situation in the U.S., where it

seems as if a lot of people go to a psychiatrist, although they only

suffer from minor mental problems.  Swedish mental health care was

during the larger part of the seventies more humanly benevolent than

correctly diagnosing.  The effect was that people suffering from

different degrees of stress asked for help at psychiatric clinics

though they really did not need it.

 

        According to the medical certificates issued by Dr.  RS and

Dr.  PF-F the previous psychiatric diagnoses of the applicant's

condition have been incorrect and furthermore she has the capacity to

take care of her daughter.  According to Dr. ÅH's report the applicant

was lucid, well-oriented and calm, non-psychotic and with good

formal and emotional contact.  The report further indicates a sound

reaction by a woman who just had her first baby.

 

        As concerns the certificate issued by Dr.  OB it is noted that

he was of the opinion that the applicant during the last years had

learned to handle her problems and to take her medicine.  He also

stated that the pregnancy passed normally and that the applicant felt

harmonious.

 

        When the applicant was persuaded by the social welfare

authorities and the hospital staff to accept going to the Eurenii

Minne institution she was also under the pressure of the child's

father, a brutal person with a strong and unfortunate influence over

her, who hoped for a possibility to get the child out of the way.  The

applicant has no contact with him anymore.  Both in front of the

social welfare authorities and the County Administrative Court, BS

appeared as the father of the child, but now denies the paternity.

 

        The applicant's aggressive behaviour was a desperate protest

against the plans to take her daughter into care.  It was a natural

reaction of panic as the plans of the authorities became more and more

obvious to her.  To maintain normal behaviour in her situation and to

seem to feel well mentally calls for an abnormal power to dissimulate.

Had the applicant possessed such a power that might have been a reason

to take her child into care.

 

        The inadequacy of the Swedish system of taking children into

care is shown by the fact that certificates and evidence from doctors

are put on an equal level with statements from psychologists and social

workers.  Compared to the memorandum, signed by the less educated

staff of the Eurenii Minne, the certificates issued by Dr. ÅH and Dr.

RS were not considered to be of great weight.  As concerns the aspect

of assessment of evidence it would be interesting to know the exact

importance attached to the statement of the staff of the Eurenii

Minne.  It should not be accepted that uneducated personnel is

instructed to assess a person's abilities as a parent.

 

        It is natural for a woman who has just had her first baby

to ask questions and to want support during the first weeks after the

childbirth.  It should be noticed that according to the amateur-

psychology applied the applicant was not allowed to show her anxiety

when living under the threat that her child might be taken away from

her.  In making the rude remark that there were moments when there was

a good possibility of talking things over with the applicant the

persons applying amateur-psychology suggest that she is mentally

defective, when in fact she has not only got a higher school

certificate but has also with success pursued academic language

studies.

 

        When the applicant arrived at the Eurenii Minne institution

she did not know that the social welfare officers had decided that the

purpose of her stay there was to find out what future support she

might need and if she had the ability to "relate emotionally to her

daughter and to adequately satisfy the child's basic needs".

 

        The prevailing idea in Sweden as concerns child care is, as

mentioned above, that an outsider just as well as a parent can satisfy

a child's needs.  The needs to be satisfied according to this theory

are the fundamental needs of security, close contact, continuity and

immediate satisfaction.  In this respect it is considered to be

important that the parent can understand the child's signals.  Except

for quite obvious signals that anyone easily could observe it has not

been made clear what is meant by these signals.  The staff of the

Eurenii Minne concluded their opinion of the applicant's abilities as

a parent by stating that she was incapable of satisfying the above

mentioned needs and that her daughter's future might be endangered

because of this.  The applicant has furthermore been accused of having

difficulties in understanding her child's needs and its signals, in

remembering to watch over it in an adequate way and in remembering to

satisfy the child's needs first and then her own.

 

        The applicant repudiates these accusations.  She is not and

never has been incapable of understanding her daughter's needs and

signals nor of satisfying them.  In so far as the needs in question

are abstractions she does not understand them, nor does she consider

that they could affect her daughter's future development, or that they

are in any way substantiated.

 

        The applicant spent a lot of time with her daughter at the

institution and they both felt well together.  She was not on any

occasion given a reprimand or told what she did wrong and what she

should do instead.  She naturally would have had no difficulties in

taking concrete measures.  As has been said in the above mentioned

certificates and reports she has very good theoretical knowledge of

child care.  Considering the relatively simple character of such

knowledge she would of course not have any problems when turning

theory into practice, for example in determining the hours for and

the quantities of her child's meals.

 

        The applicant admits that she felt completely exhausted the

first week at the Eurenii Minne.  The reason for this was probably the

pressure she was exposed to and the result of it was that she found

it difficult to take care of her daughter at night.  It is also true

that on her own initiative she started taking tranquillising drugs

with the effect that she felt very tired for a couple of days and

slept a lot.  She could change her daughter's nappies without problems

and feed her as well.

 

        The applicant has a restless nature and always eats rather

rapidly.  It is an enormous exaggeration, however, when it is said

that she wandered about restlessly for hours at the Eurenii Minne.

She did not oscillate from being mentally detached to being exhilarated.

She once got very upset with a member of the staff who constantly

followed her to watch the expression of her face.  She felt provoked

and humiliated.

 

        The Government have submitted that the situation, as concerns

the necessity to take the applicant's daughter into care, might have

changed since the judgments of the County Administrative Court and

the Administrative Court of Appeal were delivered.  The question in

this case is not whether the situation has changed, but according to

what values and scales of value the applicant's abilities as a mother

should have been assessed.  Dr.  RS' thorough examination of the

applicant and his testimony provided the Administrative Court of

Appeal with new values and scales of value, which it chose not to

account for.  The Government's submission can be seen as an admission

of considerable deficiencies in the judgments.

 

        The Government have also submitted that the expert opinion

issued by Dr.  PF-F could be of importance only as far as it indicates

that the circumstances have changed since the judgments of the courts

were delivered and that it is the task of the courts in the pending

proceedings to decide if this is the case.  In fact the expert opinion

shows that Articles 6 and 8 of the Convention have been and still are

violated by the Swedish Government.  Dr.  PF-F dissociates himself from

the amateur-psychology applied in the present case and from the

prevailing ideas in Sweden as concerns child care.  He raises the

examination of the case to an honest scientific level and it is no

surprise that his conclusions are in strong contrast to those of the

bureaucrats.  His investigation and his conclusions clearly show a

violation of the applicant's human rights.

 

 

THE LAW

 

1.      The applicant has complained of a violation of Article 6 (Art.

6) of the Convention.  The relevant part of the first paragraph of

this provision reads:

 

        "In the determination of his civil rights and obligations or

        of any criminal charge against him, everyone is entitled to

        a fair and public hearing within a reasonable time by an

        independent and impartial tribunal established by law..."

 

        The applicant maintains that the tribunals deciding in her

case were not impartial.  The doctors, who expressed a view as to her

capacity as a guardian, did so not on the basis of scientific methods

but on the basis of a bureaucratic pattern which is not founded on any

objective analysis of the facts.  The courts have long been subjected

to this pattern and cannot therefore offer the parties an impartial

procedure.

 

        With regard to the judicial decisions of which the applicant

complains the Commission recalls that, in accordance with Article 19 of

the Convention, its only task is to ensure the observance of the

obligations undertaken by the parties in the Convention.  It is not

competent to deal with an application alleging that errors of law or

fact have been committed by domestic courts, except where it considers

that such errors might have involved a possible violation of any of

the rights or freedoms set out in the Convention (see e.g.  No. 458/59,

Dec. 29.3.60, Yearbook 3 pp. 222, 236 ; No. 5258/71, Dec. 8.2.73,

Collection 43 pp. 71, 77 ; No. 7987/77, Dec. 13.12.79, D.R. 18

pp. 31, 45).

 

        In this respect the Commission first notes that the

applicant's case was dealt with by three different courts, i.e. the

County Administrative Court, the Administrative Court of Appeal and

the Supreme Administrative Court.  The applicant has in no way

substantiated her allegation that these courts lacked impartiality.

 

        As regards the procedure before these courts, the Commission

notes that hearings were held before the County Administrative Court

and the Administrative Court of Appeal.  During these hearings the

applicant was assisted by counsel, and several witnesses and other

persons were heard, including experts who had issued medical

certificates.  There is no indication that the applicant was prevented

from presenting her arguments and views to the courts or that the

procedure was in any other respect unfair.

 

        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 has furthermore complained that her right to

respect for her private and family life has been interfered with in a

manner not justifiable under Article 8 para. 2 (Art. 27-2) of the

Convention.  She maintains that she was indeed in a position to take

proper care of her child and that the courts had in no way established

that there was a necessity to take her child into care.  The applicant

further maintains that Swedish law does not satisfy the substantial

requirements as to the quality of the law since it is too vague and

without any indication as to the scope of the discretion conferred

upon the authorities.

 

        Article 8 (Art. 8) of the Convention 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 Government contend that the issue to be determined by the

Commission in this case concerns only the proceedings which led to the

taking into care of the applicant's child and that in this respect the

decisions taken in the applicant's case are fully in conformity with

the requirements of Article 8 (Art. 8) of the Convention.  As regards

the issues relating to the subsequent proceedings which were withdrawn

by the applicant on 1 September 1987, the Government maintain that the

complaint should be rejected under Article 26 (Art. 26) of the

Convention for non-exhaustion of the domestic remedies.

 

        The Commission recalls that the applicant's child was taken

into care on a provisional basis by the competent authorities on

2 April 1985 and that the final decision regarding the provisional care

order was given by the Administrative Court of Appeal on 30 April 1985

(see THE FACTS above under I).

 

        The proceedings concerning the taking into care of the child

on a non-provisional basis commenced on 29 April 1985 and ended on

28 January 1986 when the Supreme Administrative Court refused to grant

leave to appeal (see THE FACTS above under II).

 

        Subsequently, and parallel to the application lodged with the

Commission, the applicant submitted a request to the Social District

Council on 23 June 1986 in order to obtain a termination of the care

order and new medical evidence was obtained for this purpose.  These

proceedings were however, terminated on 3 September 1987 when the

County Administrative Court, on the applicant's request, struck the

case off the list of cases (see THE FACTS above under III).  The

Commission finds that these proceedings fall outside the scope of the

present application and cannot be taken into account by the Commission

in its examination of whether the taking into care of the applicant's

child interfered with her rights under Article 8 (Art. 8) of the

Convention in an unjustifiable manner.

 

        When considering the applicant's complaint in the light of the

above considerations the Commission finds that the taking of the

applicant's child into care interfered with the applicant's right to

respect for her family life as ensured by Article 8 para. 1 (Art. 6-1)

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

paragraph 2 of Article 8 (Art. 8-2) and it must be "necessary in a

democratic society" for that or those legitimate aims.

 

        As regards the first condition the Commission recalls its

opinion in the case of Olsson v.  Sweden (Olsson v.  Sweden, Comm.

Report 2.12.1986, para. 139) where it found that the text of the

relevant provisions in the Swedish Acts, among them Section 1 para. 1

of the 1980 Act with Special Provisions on the Care of Young Persons

which is of relevance in this case, although vague, could not be

considered as not satisfying the requirements as to the quality of the

law.  This opinion was shared in substance by the European Court of

Human Rights (Olsson judgment of 24 March 1988, Series A No. 130,

para. 62).  Furthermore in the opinion of the Commission there is

nothing to suggest that the decisions taken by the courts in the

present case were contrary to Swedish law.  The issue of taking the

child into care was examined by the competent administrative courts up

to the Supreme Administrative Court, which refused to grant leave to

appeal.

 

        The Commission is furthermore of the opinion that the

interference had a legitimate aim under Article 8 para. 2 (Art. 8-2),

namely the interest of the child, which in this case falls under the

expressions "for the protection of health or morals" and "for the

protection of the rights and freedoms of others".

 

        In these circumstances, the Commission finds that the decision

to take the applicant's child into care was taken "in accordance with the

law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention and that it had a legitimate aim.

 

        It thus remains to be determined whether the interference was

"necessary in a democratic society" in the interest of the child.

 

        According to the established case-law of 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 (cf. above-mentioned Olsson judgment,

para. 67).

 

        However, the Convention organs' review is not limited to

ascertaining whether a respondent State has exercised its discretion

reasonably, carefully and in good faith, and they cannot confine

themselves to considering the relevant decisions in isolation but must

look at them in the light of the case as a whole.  They must determine

whether the reasons adduced to justify the interference at issue are

"relevant and sufficient" (cf.  Olsson judgment, para. 68).

 

        Turning to the facts of the present case, the Commission

recalls that the applicant has alleged that the decision to take her

child into care was based on irrelevant circumstances and that her

abilities as a mother were assessed according to unacceptable criteria.

 

        Before considering the substance of this issue, the Commission

recalls that both the County Administrative Court and the

Administrative Court of Appeal held oral hearings.  The applicant was

present at both hearings and was assisted by a lawyer on these

occasions.  The County Administrative Court heard as witnesses the

deputy director of the institution where the applicant had been

staying after her daughter's birth as well as Dr.  OB.  The Court also

heard several other persons, including the applicant's mother and the

man claimed to be the father of the child.  The Administrative Court

of Appeal heard eight witnesses, including Dr.  OB, Dr.  RS, the

applicant's parents, the man with whom the applicant was then

cohabiting and the deputy director of the Eurenii Minne Institution.

Having regard to these facts as well as to the reasons stated above in

relation to Article 6 (Art. 6) of the Convention, the Commission finds

that insofar as certain procedural requirements are implicit in

Article 8 (Art. 8), these requirements were satisfied, since the

applicant was involved in the decision-making process to a degree

sufficient to provide her with the requisite protection of her

interests.

 

        As regards the taking into care the Commission recalls the

judgment of the County Administrative Court of 10 May 1985 from

which it appears that it was undisputed that the applicant could not

alone take care of her daughter.  There was substantial evidence about

the difficulties in this regard and the Court considered that the

conditions in the home were such as to constitute a danger for the

child's health and development.

 

        These reasons are clearly "relevant" to a decision to take the

child into care and in its judgment of 28 November 1985 the

Administrative Court of Appeal upheld the opinion of the County

Administrative Court that the conditions in the home were such as to

endanger the health and development of the child.

 

        However, a decision to take a child into care must be

supported by sufficiently sound and weighty considerations since such

a decision is in any case a serious interference with the right

protected under Article 8 para. 1 (Art. 8-1).  In order to determine

whether in the present case the reasons can be considered "sufficient"

for the purposes of Article 8 (Art. 8), the Commission must further

examine the evidence that was available to the courts.

 

        In this respect the Commission recalls that a number of

reports and certificates issued inter alia by the social authorities

and by doctors were available to the courts when they considered the

care issue.  Of particular interest is the certificate of 18 April

1985 by Dr.  OB, who had been the applicant's psychiatrist from January

1983 to December 1984.  This certificate is detailed and balanced but

does not contain any final opinion on the care issue.  It does,

however, refer to the applicant's "very great difficulties in taking

care of her child".  In the supplementary certificate of the same

date, Dr.  OB states that despite the difficulties it would not be

impossible to place the applicant and her child together in a foster

family.  In the proceedings before the Administrative Court of Appeal a

certificate issued by Dr.  RS on 26 August 1985, which is also

extensive and balanced, ends with the conclusion that there was no

evidence that the applicant would endanger her child's mental health.

Furthermore, a memorandum from the Eurenii Minne Institution, signed

by the deputy director of that institution and submitted to the County

Administrative Court, as well as a report from the Social Welfare

Authorities, indicating that it would endanger the welfare of the

child if she was to live with the applicant, were also considered by

the courts.

 

        It should be noted that the medical certificate issued by Dr.

PF-F on 21 May 1986 gives a favourable view on the applicant's

capability of taking care of her daughter, but it could not be

considered by the courts since it was issued after the proceedings

which are relevant in the present case had been terminated.  It cannot

therefore be taken into account in the Commission's examination as to

whether the courts, by their judgments, interfered with the

applicant's right to respect for her family life in an unjustifiable

manner.

 

        The Commission also notes that the courts' judgments were not

founded only on the above documentation but that the courts, on the

basis of the hearings held before them, had the benefit of their own

impressions of the persons involved.

 

        Finally the Commission also attaches some importance to the

fact that the applicant has subsequently accepted that her daughter

should remain in the foster home and that she has even voluntarily

placed her second child with foster parents.

 

        Although the opinions of experts and witnesses varied to some

extent, the Commission finds that the decision to take the applicant's

child 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 the applicant's child

into care.  Accordingly the Commission concludes that this decision

can be regarded as "necessary in a democratic society" within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention in the

interests of the child.

 

        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.

 

 

        For these reasons, the Commission

 

 

        DECLARES THE APPLICATION INADMISSIBLE

 

 

 

Deputy Secretary to the Commission     Acting President of the Commission

 

 

 

            (J. RAYMOND)                       (J.A. FROWEIN)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Full & Egal Universal Law Academy