AS TO THE ADMISSIBILITY OF
Application No. 26076/94
by Tuula TIID
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 January 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 October 1994
by Tuula TIID against Sweden and registered on 21 December 1994 under
file No. 26076/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1960, is a tram driver.
She resides at Gothenburg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 7 December 1993 the Social District Council (Stadsdelsnämnden;
hereafter "the Council") of Bergsjön, Gothenburg, decided, pursuant to
Section 6 of the Act with Special Provisions on the Care of Young
Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52),
immediately to take the applicant's children, A-L, born in 1981, and
M, born in 1984, into public care on a provisional basis. The children
were the same day placed at a children's home at Kungälv, in the
vicinity of Gothenburg.
The Council's decision was later brought before the County
Administrative Court (Länsrätten) at Gothenburg, which appointed
counsel for the applicant and her husband - the children's father - as
well as for the children. On 20 December 1993 the Court confirmed the
Council's decision.
The Council later applied to the Court for a care order
concerning the children under Section 1, subsection 2 and Section 2 of
the above-mentioned Act. These provisions state that compulsory care
is to be provided if there is a clear risk of impairment of the health
and development of a person under 18 years of age due to ill-treatment,
exploitation, lack of care or any other condition in the home and if
the necessary care cannot be provided with the consent of the young
person's custodian.
The County Administrative Court held a hearing at which the
parents, their counsel, the children's counsel, representatives of the
Council and a social expert (socialkonsulent) from the County
Administrative Board (Länsstyrelsen) were heard. The Court also heard
a witness requested by the parents. It further heard the chief
physician who had conducted a psychiatric examination of the children.
Moreover, the Court had at its disposal the Council's investigation of
the case, which contained statements by teachers, the children's
contact family (kontaktfamilj), a Children's Psychiatric Clinic and a
Child Welfare Centre.
The Council stated, inter alia, that it had been noted at the
children's school that they had great problems in their relationships
with other people and serious learning difficulties. Allegedly, the
applicant had ill-treated the children. There were also suspicions of
incest in the family, although the police investigation had been
closed. The parents had, on several occasions, been offered assistance
by the social authorities, but had declined. Allegedly, it was not
possible to come to any agreements with the parents.
The parents maintained, inter alia, that it was better for the
children to live with them than at the children's home. The children
needed help with their homework, but required no further support. The
parents were, however, willing to accept certain forms of assistance
from the social authorities. They contested that any ill-treatment or
incest had occurred in their home.
The children's counsel and the social expert supported the
Council's application. The chief physician stated that the parents were
unable to understand their children's problems. He considered that the
care proposed by the Council satisfied the needs of the whole family,
especially the children's special needs.
By judgment of 15 February 1994, the County Administrative Court
granted the application and ordered that the children be taken into
public care. The Court considered that the children needed extensive
support which the parents could not provide, as they lacked the
necessary ability and understanding. The Court further found that the
children had already been harmed by the insufficient care provided by
their parents and noted that the parents had not consented to the care
proposed by the Council.
The parents appealed to the Administrative Court of Appeal
(Kammarrätten) of Gothenburg. The appellate court held a hearing and
heard the same persons as the County Administrative Court except for
the social expert and the witness. In addition to what they had
previously stated, the parents agreed that the children were in need
of extensive supportive measures. They maintained, however, that the
children should live at home with their parents. The chief physician
stated, inter alia, that the children had developed favourably at the
children's home and that this confirmed the appropriateness of placing
them there.
On 28 April 1994 the Administrative Court of Appeal, agreeing
with the findings of the County Administrative Court, rejected the
appeal.
On 26 July 1994 the Supreme Administrative Court (Regerings-
rätten) refused leave to appeal.
COMPLAINTS
The applicant complains of the public care of her children. She
does not invoke any Articles of the Convention.
THE LAW
The applicant's complaint concerns the public care of her
children. The Commission considers that it falls to be considered under
Article 8 (Art. 8) of the Convention, which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health and morals, or for the protection of the rights and
freedoms of others."
The applicant maintains that she and her husband are able to take
care of their children and that the children want to come home. She
states that since 1 February 1995 the children are placed in separate
families. The parents are allowed to visit them twice a month and phone
them twice a week.
The Commission finds that the taking into public care of the
applicant's children interfered with her right to respect for her
family life as ensured by Article 8 para. 1 (Art. 8-1) of the
Convention. It must therefore be examined whether this interference was
justified under the terms of Article 8 para. 2 (Art. 8-2). In this
respect, the Commission recalls that three conditions must be
satisfied: the interference must be "in accordance with the law", it
must pursue one or more of the legitimate aims enumerated in para. 2
and it must be "necessary in a democratic society" for that or those
aims.
As regards the first condition, the Commission finds that the
relevant decisions were in conformity with Swedish law, namely
Section 1, subsection 2 and Section 2 of the Act with Special
Provisions on the Care of Young Persons.
The Commission further finds that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests
of the children, which in this case fall under the expressions "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others".
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the children.
According to the established case-law of the Commission and the
European Court of Human Rights, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued. In
determining whether an interference is "necessary in a democratic
society", the Commission furthermore has to take into account that a
margin of appreciation is left to the Contracting States. However, the
Commission's review is not limited to ascertaining whether the
respondent State has exercised its discretion reasonably, carefully and
in good faith. Furthermore, it cannot confine itself to considering the
relevant decisions in isolation but must look at them in the light of
the case as a whole. It must determine whether the reasons adduced to
justify the interference at issue are "relevant and sufficient"
(cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A
no. 130, pp. 31-32, paras. 67-68).
In the present case, the Commission recalls that the County
Administrative Court, in its judgment of 15 February 1994, found that
the children needed extensive support which their parents could not
provide, as they lacked the necessary ability and understanding, and
that the children had already been harmed by the insufficient care
provided by the parents.
The Commission further recalls that the County Administrative
Court and the Administrative Court of Appeal, before giving their
judgments, had held hearings at which the parents, their counsel, the
children's counsel, representatives of the Council, a social expert and
the chief physician who had examined the children had been heard. In
addition, the courts had regard to written submissions. Thus, the
courts cannot be said to have intervened without adequate knowledge of
the case.
In the light of the foregoing the Commission finds that the
taking into care of the children was supported by relevant and
sufficient reasons and that, having regard to their margin of
appreciation, the Swedish authorities were reasonably entitled to think
that it was necessary to take the children into care. Accordingly, the
Commission concludes that the relevant decisions can reasonably be
regarded as "necessary in a democratic society" within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy