AS TO THE ADMISSIBILITY OF
Application No. 16031/90
by Monika and Peter TENNENBAUM
against Sweden
The European Commission of Human Rights sitting in private on
3 May 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 December 1989
by Monika and Peter Tennenbaum against Sweden and registered on
22 January 1990 under file No. 16031/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 21 June 1991, the observations in reply submitted by the
applicants on 20 September and 21 October 1991 and the documents
submitted by the respondent Government on 28 January 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties'
submissions and the documentary evidence at the Commission's disposal,
may be summarised as follows.
The applicants are Swedish citizens, born in 1945 and 1948
respectively. They reside at Malmö.
A. The particular facts of the case
The first applicant was born in Sweden. As from 1984 she received
financial support from the social authorities due to illness
(sjukbidrag). In 1988 this was changed into an early retirement pension
(förtidspension). It appears that she has certain problems which have
been described as a strong disturbance in her personality (kraftig
personlighetsstörning) - a borderline type of condition which cannot
be rehabilitated. Since her birth she belonged to the Swedish State
Church, but apparently converted to catholicism in 1980. The applicants
submit that she has now converted to judaism.
The second applicant is of Polish origin. He emigrated from
Poland to Israel in 1967 and acquired Israeli citizenship. He came to
Sweden in 1974 and acquired Swedish citizenship in 1983. Except for
approximately 3 1/2 months in 1975 the second applicant has been
unemployed since he came to Sweden. Like the first applicant he also
receives an early retirement pension due to mental problems and has
been admitted to mental hospitals both in Israel and in Sweden.
According to medical certificates the second applicant cannot be
rehabilitated either, due to his particular mental problems. He has
been described as having extreme difficulties in co-operating with
other people and a tendency to become aggressive (persona patologica
explosiva).
As regards the mental problems the applicants submit that the
conclusions reached are partly based on very old examinations and
partly due to the fact that they knowingly deceived the doctors who had
to decide on whether or not to grant them an early retirement pension
for which reason they actually receive such pensions on incorrect
grounds.
The second applicant's father was a catholic and his mother was
jewish. He was baptised in a catholic church and belonged to it until
he emigrated to Israel. The second applicant submits that due to the
fact that his mother was jewish he has been jewish since birth. When
he came to Sweden in 1974 he referred to his catholic certificate of
baptism, but he belonged to the Mosaic congregation in Malmö from 1976
to 1978 when he reverted to the catholic congregation. The applicants
submit that they officially lived as catholics as a security measure
against anti-semitism. Since August 1987 the second applicant belongs
again to the Mosaic congregation in Malmö.
The applicants met in 1980 and were married the same year. Their
two daughters were born on 5 February 1985 and 18 July 1986
respectively. They christened their children Mary Christine and Ann
Therese in a catholic church in Malmö, also, they submit, as a security
measure against anti-semitism. In 1987, i.e. after their daughters had
been taken into care, the applicants changed their children's first
names into the corresponding jewish names, Miriam and Hannah.
When the applicants married in 1980 it appears that they lived
at Halmstad. It also appears that they had considerable housing
problems and that the social authorities made several attempts to solve
them. The offers made by the authorities were, however, unacceptable
to the applicants who apparently then stayed in different hotels.
In April 1985, following the birth of their daughter Miriam, the
applicants moved to Malmö. As from the end of 1985 they lived in a flat
in Malmö, paid for by the social authorities, but they were forced to
leave in May 1986 which, according to the documents submitted, was
because the second applicant had caused disturbances in the house which
"clearly overstepped the limits for what other occupants ought to
tolerate in a building meant for several families". The applicants were
then offered a house at Bunkeflostrand near Malmö, an offer which,
however, they turned down for which reason they apparently continued
to live in various hotels.
In particular due to the family's living conditions and the
applicants' attitude in this respect the Social District Council of
Malmö (Malmö kommun, sociala distriktsnämnden) on 15 April 1986
initiated an investigation as to Miriam's development. For the same
reasons an investigation was initiated concerning Hannah following her
birth on 18 July 1986. The applicants submit that these investigations
were a form of blackmail, aimed at forcing them to accept the social
authorities' proposals concerning residence.
The housing dispute appears to have culminated on 2 July 1986,
i.e. 16 days before the birth of Hannah, when the applicants asked the
social authorities to take care of Miriam, who was taken into custody
the same day by decision of the Social District Council of Malmö. On
10 July 1986 the County Administrative Court (länsrätten) of the County
of Malmö quashed the decision and the care was terminated.
On 18 July 1986, when Hannah was born, the applicants lived in
a hotel room and they submit that on 3 August 1986 they had to take her
to hospital due to their living conditions combined with an infection
she developed.
On 5 August 1986, the applicants received copies of the reports
prepared on the basis of the social authorities' investigation into the
developments of their daughters and the same day they took Miriam to
the offices of the social authorities. After an exchange of views the
chairman of the Social District Council decided to take both Miriam and
Hannah, who was in hospital, into care on a provisional basis, pursuant
to Section 1, para. 2, sub-section 1 and Section 6 of the 1980 Act with
Special Provisions on the Care of Young Persons (lagen med särskilda
bestämmelser om vård av unga), hereinafter "the 1980 Act". This
decision was brought before the County Administrative Court and counsel
was appointed for the applicants on 11 August 1986. On 15 August 1986
the County Administrative Court confirmed the care decision and it was
subsequently upheld by the Administrative Court of Appeal
(kammarrätten) of Gothenburg on 25 September 1986. In the meantime, on
15 August 1986, the applicants had left Sweden and moved to Israel. The
children remained in Sweden. Miriam was placed in a children's home
whereas Hannah was placed in a foster home.
On 20 August 1986 the Social District Council decided that the
children's address should not be disclosed to the applicants (Section
16, sub-section 2, of the 1980 Act). Furthermore the Social District
Council applied to the County Administrative Court for the taking into
care of the applicants' two daughters pursuant to Section 1, para. 2,
sub-section 1 of the 1980 Act.
While the case was pending before the County Administrative Court
the applicants submitted requests, either directly or through their
appointed counsel, that the children be placed with a jewish family,
if possible English-speaking, stressing their wish to have the children
brought up in accordance with jewish traditions.
On 6 October 1986, the Social District Council decided to contact
the jewish congregation in Malmö to investigate the possibilities of
meeting the parents' wishes regarding placement of the children.
Contact was made with the Rabbi who considered, however, that it would
be extremely difficult to find a jewish family which would be willing
to bring up the children.
On 27 November 1986, the Rabbi informed the authorities that he
considered it impossible to find a jewish family in southern Sweden who
would be able to bring up the children in the jewish faith. He also
noted that there was a more orthodox attitude in southern Sweden than
in other parts of the country. He proposed, however, that the Institute
for Jewish Education and Culture in Lund should be contacted.
In the meantime, on 7 November 1986, the applicants had returned
from Israel and were accordingly able to participate in the hearing
held in the County Administrative Court on 11, 12 and 16 December 1986
concerning the question of public care. The Social District Council
maintained its position but stated in respect of Miriam that, as her
address had become known to the applicants, there was no longer any
need for a decision to keep it secret. The applicants, who were present
at the hearing and assisted by officially appointed counsel under the
1972 Legal Aid Act (rättshjälpslagen), inter alia alleged that the
investigation was incorrect and false, and that there was no relevant
ground for taking the children into care. The children were represented
by officially appointed counsel under the Legal Aid Act.
During the proceedings, which were held in camera, the Court had
at its disposal several written statements. The Chief Doctor Ö.J., the
Deputy Chief Doctor P.V. and the manageress of Enebackens Children's
Home B.A. were heard. Furthermore, the applicants were heard as well
as two doctors and 14 witnesses, among others trained nurses and social
welfare officers called by the applicants. The applicants requested
that further witnesses be heard and more written statements be brought
before the Court. Their request was rejected by the Court, which
considered this to be superfluous and no further investigation to be
necessary in order to decide the case.
In its judgment of 27 January 1987 the Court stated inter alia
the following:
(translation)
"No remarks have been made in the case in respect of the
personal physical care of [Miriam]. According to the
statements of the witnesses, Monika Tennenbaum has shown an
understanding of the needs of children. However,
concerning the conditions of [Miriam], it appears that the
parents have let interests other than the care of her
dominate the life of the family. The family has moved
frequently during the last years. The Social Councils of
Halmstad and Malmö have made several attempts to solve the
housing problems of the family, without any success. Peter
Tennenbaum has emphasised his methods of deceiving and
manipulating different authorities in order to obtain above
all financial but also other advantages. It appears that
this has not improved the social situation of the family,
or prevented the family from getting into social and
financial distress. Regularly, the parents have spent all
their money and repeatedly they have put themselves in
situations of need in their daily way of life. At the same
time they have, with the financial aid from relatives, made
trips abroad which, according to Peter Tennenbaum, have
cost tens of thousands of Swedish crowns. It must be
considered that the spouses Tennenbaum were evicted because
of their behaviour as tenants in spite of strong social
reasons to prolong their lease, and that, by maintaining
their own claims, they have not been able to accept the
proposals of the Social Councils for assistance to find
suitable housing. In view of what has been established it
must be considered that the spouses through their own
behaviour caused the family's homelessness.
From P.V.'s written and oral statements at the hearing and
B.A.'s testimony it must be concluded that [Miriam] shows
signs of damage in respect of her mental and social
progress. P.V. has expressly stated that the insecure
housing conditions and the separation from the parents
following the taking into care on a provisional basis
between 2 and 10 July 1986 as well as the taking into care
now to be considered, are not a sufficient explanation for
her condition.
The statements of the witnesses and the investigation show
that the reasons for [Miriam's] behaviour should be found
in her parents' emotional relationship to her and not, as
stated by her parents, in her physical environment. Even if
Monika Tennenbaum has shown a certain understanding of the
children's needs, she has not been able to defend her views
against Peter Tennenbaum and to influence the family's
situation.
It is clear in this case that the spouses Tennenbaum lacked
the will and capacity to provide for [Miriam's] primary
needs of a permanent place to live, emotional contact,
security and care and that this has impaired [Miriam's]
development. The birth of [Hannah] has not brought about
any changes in the parents' attitude to the needs of
children in this respect. Therefore, it must be considered
that the conditions of the parents also endanger [Hannah's]
development."
As regards keeping the children's address secret to the
applicants the Court stated inter alia:
(translation)
" The Social District Council has emphasised that it is
desirable that the parents meet both children and has also
made offers to this effect. However, the parents have
rejected this for reasons of principle. According to the
Court's assessment, there are reasons to presume that Peter
Tennenbaum would interfere in the care of [Hannah] so that
the foster parents would be prevented from giving [Hannah]
the care she needs. In this matter Monika Tennenbaum is not
regarded as capable of influencing the behaviour of Peter
Tennenbaum. It must therefore be considered that the Social
District Council had relevant reasons for its decision."
The County Administrative Court decided that Miriam and Hannah
be taken into care under Section 1, para. 1 and para. 2, sub-section
1, of the 1980 Act and that the decision should have immediate effect.
It also upheld the decision to keep Hannah's address secret whereas it
was not found necessary to decide on the question of secrecy in respect
of Miriam's address, as it was known to the applicants.
Following the County Administrative Court's above judgment of
27 January 1987, the social authorities approached the Institute for
Jewish Education and Culture in Lund, which had contacts with families
where one member of the family was of jewish origin. It turned out,
however, that while there were indeed families who might possibly be
interested in adoption, none could be found who would be willing to
accept a foster home arrangement.
The Social District Council then decided that a meeting should
be arranged between the responsible personnel and the Rabbi in order
to discuss the matter further. This meeting took place on 13 February
1987, following which the Social District Council considered that there
was no justification for continuing to look for a jewish foster home,
since such a home was apparently very hard to find. Continuing the
search would thus mean that the placement of the children would be
considerably delayed and, furthermore, if the search would prove to be
successful, the children might have to be placed far away from the
parents.
On 21 April 1987, the result of the Social District Council's
investigation regarding the children's placement was formally
communicated to the applicants, who were invited to submit orally to
the Council their views on the investigation. Following that, the
Council decided on 6 May 1987 to place Miriam and Hannah together in
a protestant foster home and to keep the children's new address secret
from the applicants for the time being. On 1 June 1987 they appealed
against this to the County Administrative Court which upheld the
decision in a judgment of 10 July 1987.
On 2 February and 27 July 1987 respectively, the applicants
appealed to the Administrative Court of Appeal against the judgments
of the County Administrative Court of 27 January 1987 (question of
taking into care) and of 10 July 1987 (question of placement).
As indicated above, the applicants returned from Israel on
7 November 1986. They were provided with a one-room flat but submit
that this was part of the social authorities' policy towards them in
order to make them divorce. They also submit that the social
authorities made them understand that by divorcing the first applicant
had a chance of getting the children back.
In 1987 the applicants divorced. Whereas the second applicant
stayed in the one-room flat, the first applicant was provided with
another flat. They submit, however, that the social authorities did not
accept this pro forma divorce for which reason the second applicant in
August 1988 married a woman from Poland thereby enabling her to come
to Sweden. A son was born out of this marriage in 1989.
In the meantime the proceedings in the Administrative Court of
Appeal continued. As regards the taking into care of the applicants'
two daughters the social authorities were requested, on 17 February
1987, to submit their observations on the appeal. These observations
were submitted on 23 March 1987. Certain problems as to the applicants'
representation arose. Eventually on 26 May 1987 the Court appointed a
new counsel for the applicants. However, on 9 June 1987 the first
applicant requested to have her own counsel who was then appointed on
29 June 1987. On 12 August 1987, the Court suggested 19-21 October 1987
as preliminary dates for the hearing, dates which were subsequently
vacated as the first applicant's counsel was unable to appear. Further
problems with the applicants' representation appeared, but whereas the
Court refused to replace the first applicant's counsel the Court
appointed a new counsel for the second applicant on 19 February 1988.
On 1 July 1988 the second applicant's counsel requested that the
hearing be postponed until January 1989. On 20 September 1988 the Court
accordingly notified the parties that the hearing would take place from
17 to 19 January 1989.
As regards the proceedings concerning the placement in the foster
home the social authorities were requested, on 29 July 1987, to submit
their observations on the appeal. These observations were submitted on
14 August 1987. From 17 August until 11 September 1987 the file
remained with the Parliamentary Ombudsman. From 23 March until
2 September 1988 a number of written submissions were exchanged between
the parties through the Court. On 28 October 1988, the Court decided
to include the placement question for consideration during the hearing
concerning the public care issue scheduled for 17-19 January 1989.
Accordingly the Administrative Court of Appeal held a public
hearing on both issues from 17 to 19 January 1989.
The applicants were present and both were assisted by officially
appointed counsel under the Legal Aid Act. The children were
represented by counsel as in the lower court. The Administrative Court
of Appeal had at its disposal the case-file including written
statements of Chief Doctor K.S., Authorised Psychologist G.S., Deputy
Chief Doctor P.V. and Psychologist S.S. A total of 12 witnesses were
heard, including K.S., P.V. and S.S. It appears that the Court decided
not to hear a number of other witnesses requested by the second
applicant.
In its judgment of 13 February 1989 the Administrative Court of
Appeal stated inter alia:
(translation)
"All in all the Court finds that at the time of the care
order in August 1986 Monika Tennenbaum and Peter Tennenbaum
lacked the ability to take care of Miriam and Hannah to
such an extent that the children's health and development
were in danger.
However, the Court must determine whether such a danger
still exists. It is to be noted that Monika Tennenbaum and
Peter Tennenbaum are now divorced and that their housing
problems have found a reasonably acceptable solution. They
have declared that the children would live with Monika, in
her flat containing two rooms and a kitchen, and that she
would take care of them with considerable assistance from
Peter. They intend to emigrate to Israel as soon as
possible.
As established by the investigation, Monika Tennenbaum's
and Peter Tennenbaum's inability to provide safe and
harmonious conditions for their children while they are
growing up constitutes a great danger to the children's
health and development. The determining factor in this
respect is hardly how the housing problems are solved, but
rather the general attitude, shown by the parents, in
questions concerning their children. The investigation in
this matter does not indicate any changes worth mentioning
on the part of Monika Tennenbaum and Peter Tennenbaum. On
the contrary, it is remarkable that they have not had any
contact at all with their children since the taking into
care, even considering the fact that a meeting must be
arranged on the conditions of the social authorities. The
conclusion of the Court is therefore that there still is a
need to provide care for the children outside their home.
Clearly, the conditions to provide the necessary care
voluntarily are not at hand.
Consequently, the Court finds, like the County
Administrative Court, that Miriam and Hannah must be
provided care pursuant to the 1980 Act of Special
Provisions on the Care of Young Persons.
...
Monika Tennenbaum and Peter Tennenbaum have submitted
several letters to the Court concerning ethical, cultural
and religious questions, which are all of importance in the
matter of choosing a suitable foster home. In the light of
the fact that on the side of the father, the children are
to be regarded as jewesses, that the father has a Polish-
jewish culture and belongs to the jewish church at Malmö
and that the mother is converting to judaism, it is their
clear opinion that the foster home should be jewish with
Polish as its home language. Monika Tennenbaum and Peter
Tennenbaum have further alleged that the Social District
Council has not done enough to find a suitable foster home.
...
The Social District Council has in this matter pointed out
the following. The foster home for Miriam and Hannah has
been selected according to current routines at the family
care section (familjevårdssektionen). This means
advertising, meetings with foster parents and co-operation
with other Social District Councils. At the beginning
purposeful attempts were made to find a jewish home
according to the parents' wish. The Social District Council
inter alia contacted the Rabbi in Malmö. In his opinion the
children are not jewish, because their mother is not a
jewess. The parents' religious affiliation can be described
as confusing ... The request for a Polish-speaking foster
home was lodged for the first time after the children had
been placed in the foster home. The search was limited to
the southern part of Sweden in order to give the parents a
realistic possibility of meeting the children, in
accordance with the so-called principle of nearness
(närhetsprincipen).
...
The plan for the care includes placing the children in a
foster home. Thus, it has been the Social District
Council's duty to find one suitable foster home for both of
them, without any unnecessary waste of time. The Social
District Council made some efforts to find a foster home
corresponding to Monika Tennenbaum's and Peter Tennenbaum's
wishes. Considering what was known about the children's
needs at the time, the Court finds that no well-founded
criticism can be made of the Social District Council's
decision of 6 May 1987 to place the children in the foster
home in question.
...
According to the Social District Council the main reason
for keeping the address of the children secret is that
otherwise Monika Tennenbaum and Peter Tennenbaum would
interfere with the care in a way which would make it
impossible for the foster home to give the children the
necessary care. The Court shares the opinion of the Social
District Council that the children's address should not be
disclosed to the parents. In this regard there is reason to
emphasise that such a decision does not deprive the parents
of the possibility of meeting their children."
On 20 February 1989, the applicants appealed against this
judgment to the Supreme Administrative Court (Regeringsrätten) which,
by decision of 30 June 1989, refused to grant leave to appeal.
As indicated above, the first applicant was at that moment living
alone whereas the second applicant had married another woman with whom
he had a child. In the summer of 1990, however, he divorced her and
returned to the first applicant. They submit that they were
subsequently, on 26 September 1990, evicted from their apartment and
considered themselves homeless in Sweden from that date onwards.
Later in the autumn of 1990 they decided to move to Berlin where,
however, they could only live as tourists, three months at a time. In
December 1990 they therefore moved to Poland and considered staying
there. However, the conditions in Poland were such that the first
applicant could not adapt to them for which reason they returned to
Malmö in April 1991. On 4 May 1991 they re-married. It appears that
they lived in various hotels in Malmö and, subsequently, in Copenhagen.
On 1 December 1992 the applicants returned to Malmö where the social
authorities have provided them with an apartment. They have only met
their children once since 1986, as a matter of principle, they refuse
to meet the children in "a neutral place" outside the foster home.
B. Relevant domestic law
A. Care decisions
The basic rules on public responsibility for young persons are
laid down in the Social Services Act 1980 (socialtjänstlagen 1980:620).
This Act contains provisions regarding supportive and preventive
measures taken with the approval of the individuals concerned. At the
relevant time of the present case, where parents did not give their
consent to the necessary measures, compulsory care could be ordered
under the 1980 Act containing Special Provisions on the Care of Young
Persons. The 1980 Act was replaced by new legislation in 1990.
Section 1 of the 1980 Act read:
(translation):
"Care is to be provided pursuant to this Act for persons under
eighteen years of age if it may be presumed that the necessary
care cannot be given to the young person with the consent of the
person or persons having custody of him and, in the case of a
young person aged fifteen or more, with the consent of the young
person.
Care is to be provided for a young person if
1. lack of care for him or any other condition in the home
entails a danger to his health or development, or
2. the young person is seriously endangering his health or
development by abuse of habit-forming substances, criminal
activity or any other comparable behaviour. ..."
It is primarily the responsibility of municipalities to promote
a positive development for the young. For this purpose each
municipality has a Social Council, composed of lay members assisted by
a staff of professional social workers, which operates under the
supervision and control of the County Administrative Board
(länsstyrelsen) and the National Board of Health and Welfare
(socialstyrelsen).
The 1980 Act specified that, if the Social Council deemed it
necessary to take a child into care, the Council had to apply to the
County Administrative Court for a decision to this effect (Section 2).
B. Implementation of care decisions
Once a decision on public care has been taken, the Social Council
executes the decision, takes care of the practical details regarding
the placement of the child and decides what education and other
treatment he should be given etc. (sections 11-16).
Pursuant to section 11 of the 1980 Act,
(translation):
"... the Social Council shall decide how care is to be arranged
for the young person concerned and where he is to reside during
the period of care.
The Social Council may consent to the young person residing in
his own home if this may be presumed to be the most appropriate
way of arranging care, but care pursuant to this Act is always
to commence away from the young person's home.
The Social Council or the person charged with care of the young
person by the Council shall keep the young person under
surveillance and make such decisions concerning his personal
conditions as are necessary for the discharge of care."
With regard to the nature of the functions entrusted to the
Social Council under the 1980 Act, the following is stated in the
preparatory work to this Act, as reproduced in the Government Bill
(1979/80: 1, Part A, pp. 596-597):
"After a decision on public care has been taken the Social
Council exercises parental responsibility alongside with the
parents or in their place. It should assume such parental
authority and responsibility as is necessary to implement the
care measures. Thus, like the parents, the Council may take the
necessary measures to prevent the young person from harming
himself or others ... [or] from running away [and] ... may also
take decisions ... concerning [his] private affairs. This may
include matters relating to medical care or treatment, permission
for the young person to travel or to take up employment.
According to the principles which govern the cooperation between
the social welfare authorities and the individuals [concerned]
on the implementation of public care measures, the Council should
consult the parents in such matters, if the circumstances so
allow. Therefore, the fact that the Council has taken over the
responsibility for the care of the young person must not result
in the parents being deprived of all influence. The parents and
the young person himself should as far as possible take part in
making the care arrangements. Thus, it is only in so far as it
is necessary for the implementation of public care measures that
the Council, through the decision of the County Administrative
Court, takes over the parental responsibility of the person."
C. Provisions related to the length of proceedings
Basic provisions concerning the proceedings to be followed in,
inter alia, county administrative courts, administrative courts of
appeal and the Supreme Administrative Court are contained in the 1971
Act on Administrative Procedure (förvaltningsprocesslag 1971:291).
There is no provision in the Act laying down time-limits within which
cases brought before the courts are to be decided.
It is generally considered to be the courts' duty to ensure that
adequate progress is made in cases pending before them, an obligation
which, on 1 January 1988, was explicitly laid down for the ordinary
courts through an amendment to the Code of Judicial Procedure
(rättegångsbalken).
The proceedings complained of in the present case concerned the
taking into care of children under the 1980 Act and issues related to
the taking into care. Section 9 of that Act read at the relevant time
as follows:
(translation):
"Cases concerning care pursuant to this Act are to be dealt with
promptly.
If the young person is in custody, the County Administrative
Court is to hold hearings in the case within two weeks of the day
on which the application for care was received. The Court may
prolong this period if such prolongation is necessitated by
further investigation or any other special circumstance."
COMPLAINTS
The applicants complain of the fact that their children were
taken into care. They maintain that there was no pertinent reason for
taking such a step and consider this to be in violation of their right
to respect for their family life. They invoke in this respect Articles
3 and 8 of the Convention.
The applicants also complain that the placement of their children
in a protestant foster home violates their rights under Article 9 of
the Convention and Article 2 of Protocol No. 1 to the Convention in
that their right to ensure their children's education and teaching in
conformity with their own religion and philosophical conviction has
been disregarded.
Under Articles 12 and 14 of the Convention the applicants
complain that the taking into care of their children prevented them
from founding a family and from living in accordance with their
religion and philosophy.
They furthermore complain, under Article 6 of the Convention,
that their case was not heard by an impartial tribunal, that the court
hearings were not public, that the witnesses proposed by them were not
heard, that the Administrative Court of Appeal did not investigate the
case promptly and that the case was not determined within a reasonable
time.
Finally, they complain, under Article 13 of the Convention, of
the lack of an effective remedy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 December 1989 and registered
on 22 January 1990.
On 8 April 1991 the Commission decided to bring the application
to the notice of the respondent Government inviting them to submit
written observations on admissibility and merits of certain parts of
the application.
The Government's observations were submitted on 27 June 1991 and
the applicants' observations in reply were submitted on 20 September
and 21 October 1991.
Legal aid was granted to the applicants on 12 July 1991.
On 8 July 1992 the Commission decided to adjourn the case in
order to obtain further documentary evidence.
On 28 January 1993 the Government submitted such documentary
evidence.
THE LAW
1. The applicants complain that their right to respect for their
family life has been interfered with in a manner unjustifiable under
Article 8 para. 2 (Art. 8-2) of the Convention. In particular they have
pointed out that the social authorities' handling of their case was
improper and that the care order concerning their daughters was issued
without it having been established that there was a need to do so. The
applicants refer in this respect also to Article 3 (Art. 3) of the
Convention.
The Commission finds it appropriate first to examine the
applicants' complaint under Article 8 (Art. 8) of the Convention which
reads:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health and morals, or for the protection of the
rights and freedoms of others."
The Commission finds that the taking into care of the applicants'
children interfered with their right to respect for their 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 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 finds that the
relevant provisions in Swedish law satisfy the requirements as to the
quality of the law (cf. Eur. Court H.R., Olsson judgment of 24 March
1988, Series A no. 130, pp. 30-31, paras. 60-63). Furthermore, the
issue of care was examined by the competent administrative courts up
to the Supreme Administrative Court which refused to grant leave to
appeal, and there is nothing to suggest that the decisions taken by the
courts in the present case were contrary to Swedish law.
The Commission also 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 expression "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others" (cf. also above-mentioned Olsson judgment, p.
31, paras. 64-65).
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the children.
According to the established case-law of the Commission and the
European Court of Human Rights, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued. In
determining whether an interference is "necessary in a democratic
society", the Commission furthermore has to take into account that a
margin of appreciation is left to the Contracting States (cf. above-
mentioned Olsson judgment, pp. 31-32, para. 67). That does not mean,
however, that the Commission's review is limited to ascertaining
whether the respondent State has exercised its discretion reasonably,
carefully and in good faith. Furthermore, it cannot confine itself to
considering the relevant decisions in isolation but must look at them
in the light of the case as a whole. It must determine whether the
reasons adduced to justify the interference at issue are "relevant and
sufficient" (cf. Olsson judgment, p. 32, para. 68).
In the present case, the Commission recalls that the applicants
allege that the care order was based on irrelevant circumstances.
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 applicants were
present at both hearings and were assisted by counsel. Before these
courts, the applicants had the possibility of presenting the views
which in their opinion would be decisive for the outcome of the case.
Having regard to these facts, the Commission finds that, in so far as
certain procedural requirements are implicit in Article 8 (Art. 8),
these requirements were satisfied since the applicants were involved
in the decision-making process to a degree sufficient to provide them
with the requisite protection of their interests.
As regards the actual care order, the Commission recalls the
judgments of the County Administrative Court and the Administrative
Court of Appeal of 27 January 1987 and 13 February 1989 respectively.
The courts established that the family's social and financial distress
was self-inflicted, that Miriam showed signs of damage in respect of
her mental and social progress and that her parents impaired her
development due to their lack of will and capacity to provide for her
primary needs of a permanent place to live, emotional contact, security
and care. Such conditions were also found to endanger Hannah's
development.
These conditions are clearly relevant to a decision to take a
child into care. Furthermore, the Commission recalls that prior to the
taking into care of the children the social authorities had been
involved for a considerable length of time in supporting the applicants
and had initiated an investigation as to Miriam's development after her
birth. It cannot therefore be said that the authorities intervened
without adequate knowledge of the background.
The Commission also recalls that the judgment of the
Administrative Court of Appeal not only considered whether relevant and
sufficient reasons were at hand when the children were taken into care,
but also found that the subsequent developments and investigations
showed that such reasons still existed when judgment was pronounced.
In the light of this the Commission finds that the decision to
take the applicants' daughters into care 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 is was necessary to take the children 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 interest of the children.
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. In so far as the applicants rely on Article 3 (Art. 3) of the
Convention in respect of the taking into care of their children the
Commission finds that the examination of the case does not disclose any
appearance of a violation of this provision. It follows that this part
of the application is also manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants complain next that the placement of their children
in a protestant foster home violates their right to ensure their
children's education and teaching in conformity with their own religion
and philosophical conviction. They invoke Article 9 (Art. 9) of the
Convention and Article 2 of Protocol No. 1 (P1-2) to the Convention.
The Commission recalls that, although the right of the parents
to ensure their children's education and teaching in conformity with
their own convictions, is not removed as a result of a care order, such
an order temporarily transfers certain parental rights to the
authorities for which reason it is inevitable that the contents of the
parents' rights must be reduced. However, the authorities must have due
regard to the parents' wishes and, although these do not have an
absolute right, the authorities were obliged, in the present case, to
take the applicants' wish to have their children placed in a jewish
foster home into account (cf. Olsson v. Sweden, Comm. Report 2.12.86,
para. 183, Eur. Court H.R., ibid. p. 63).
In the present case certain questions have been raised by the
respondent Government as to the religious convictions of the
applicants. The Commission does not find it necessary to examine this
issue because the applicants' complaints are in any event manifestly
ill-founded for the following reasons.
The Commission recalls that under Swedish law the authorities
exercise parental responsibility alongside the parents, or in their
place, and parents should be consulted in matters concerning the child.
In the present case the Commission finds it established that the social
authorities took note of the applicants' wish for a jewish foster home
and contacted various organisations and persons in order to comply with
it and to find a suitable solution. The applicants were kept informed
of the investigations and were invited to submit their views thereon.
Accordingly, the social authorities clearly explored the possibilities
of placing the children in a jewish foster home but their endeavours
failed because of other considerations, such as the difficulty to find,
without any unnecessary waste of time, a home not so far from the
parents as to prevent their having a realistic possibility of meeting
their children. In respect of the latter the Commission also notes that
the applicants have apparently not found it necessary to take an active
part in ensuring that their children's education would be in conformity
with their own convictions as they have refused to accept the access
offers made by the authorities.
In these circumstances the Commission finds that the examination
of the complaint concerning the placement in a protestant foster home
does not disclose any appearance of a violation of Article 9 (Art. 9)
of the Convention or of Article 2 of Protocol No. 1 (P1-2) to the
Convention. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Finally, in respect of the consequences of the taking into care
of their children, the applicants invoke Articles 12 and 14
(Art. 12, 14) of the Convention complaining that this prevented them
from founding a family and from living in accordance with their
religion and philosophy.
The Commission has already found above that the interference with
the applicants' family life was justified under paragraph 2 of Article
8 (Art. 8-2) of the Convention. Even assuming that this interference
affected their right to found a family within the meaning of Article
12 (Art. 12) of the Convention, this complaint is inadmissible for the
same reasons as stated above. Furthermore, the application, as
submitted, does not disclose any substantiated allegations which could
justify a further examination of the complaint submitted under Article
14 (Art. 14) of the Convention.
This part of the application is accordingly also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5.a. Under Article 6 (Art. 6) of the Convention the applicants
complain of a number of procedural shortcomings in respect of the court
hearings involved. They maintain that the case was not heard in public
by an impartial tribunal, that all the witnesses proposed by them were
not heard, that the Administrative Court of Appeal did not investigate
the case properly and that the case was not determined within a
reasonable time.
Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:
"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. Judgment shall be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interest of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice."
The Commission notes that the care issue was determined first,
on a preliminary basis, by two different courts and subsequently by
three different courts. In these proceedings the applicants were
assisted by counsel. As already stated above, the Commission finds that
the applicants were involved in the decision-making process to a degree
sufficient to provide them with the requisite protection of their
interests. The Commission has found no substantiation of the allegation
that the case was not determined by an impartial tribunal but, whereas
the hearing in the Administrative Court of Appeal was public, it is
true that the hearing in the County Administrative Court was closed to
the public. However, having regard to the subject matter of the case
as it was before the domestic courts, the Commission finds that this
was in accordance with Article 6 para. 1 (Art. 6-1), second sentence,
which inter alia allows for the exclusion of the public where the
interests of juveniles or the protection of the private life of the
parties so require.
It is also true that the courts refused to hear certain witnesses
suggested by the applicants. However, Article 6 (Art. 6) of the
Convention does not guarantee parties to the proceedings in question
an unlimited right to have witnesses heard. Article 6 (Art. 6) permits
the courts to reject proposed evidence which they consider to be
irrelevant or unnecessary. This is what happened in the present case
and the Commission has not found any indication which could lead it to
concluding that this was done in an unfair or arbitrary manner.
Having regard to this and considering the domestic judicial
proceedings as a whole, the Commission finds no material to support the
conclusion that they were not fair or that the Swedish courts failed
to make due and proper enquiries.
5.b. In respect of Article 6 (Art. 6) of the Convention the applicants
also complain that their case was not determined within a reasonable
time. The Commission recalls that the applicants' children were taken
into care on 5 August 1986 by the social authorities and an application
for public care under the 1980 Act was lodged with the County
Administrative Court on 20 August 1986. On 30 June 1989 the Supreme
Administrative Court refused leave to appeal. It follows that these
proceedings lasted approximately two years and eleven months. The
proceedings concerning the foster home placement commenced on 6 May
1987 and ended with the decision of the Supreme Administrative Court
on 30 June 1989, lasting approximately two years and two months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with reference to the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (see Eur. Court H.R., Vernillo
judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).
The Government submit, which is contested by the applicants, that
the proceedings were somewhat complex and that, in assessing the
reasonableness of their length, emphasis should be placed on the
importance of what was at stake. They furthermore maintain that any
delay was attributable to the applicants.
The Commission recalls that the proceedings in the County
Administrative Court lasted from 20 August 1986 to 27 January 1987
(care) and from 1 June to 10 July 1987 (placement). The proceedings in
the Administrative Court of Appeal lasted from 2 February 1987 to
13 February 1989 (care) and from 27 July 1987 to 13 February 1989
(placement). Finally, the proceedings in the Supreme Administrative
Court lasted from 20 February to 30 June 1989 (both issues). The
Commission considers that the duration of the proceedings in the County
Administrative Court and in the Supreme Administrative Court do not
give rise to any objection.
The proceedings in the Administrative Court of Appeal lasted
approximately two years as regards the issue of care and it was joined
with the issue of placement. The Commission is of the opinion that the
issues at stake in the present case required by their very nature to
be dealt with expeditiously. However, it recalls that during the period
in question the applicants asked on several occasions for a replacement
of their court appointed counsel which, as it turned out, caused
considerable delays. Not only was the hearing, scheduled as early as
October 1987, vacated but it was furthermore on counsel's request that
the hearing was subsequently postponed from July 1988 to January 1989.
In these circumstances the Commission finds that the applicants
prolonged the proceedings in the Administrative Court of Appeal.
The Commission furthermore notes that, as indicated above, the
Administrative Court of Appeal not only examined the appropriateness
of the care and placement of the applicants' children at the time when
these measures were implemented but also examined whether, at the time
of the judgment pronounced, such measures were still necessary on the
basis of the continuing developments in the case. Having regard to all
these circumstances and to the fact that the proceedings comprised
three court levels, the Commission finds that the total period of time
was not so long as to warrant the conclusion that it was excessive.
It follows that the applicants' complaints, as submitted under
Article 6 (Art. 6) of the Convention, are manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
6. Finally, the applicants complain of the lack of a remedy in
respect of the complaints submitted. They refer in this respect to
Article 13 (Art. 13) of the Convention.
The Commission recalls that Article 13 (Art. 13) has been
interpreted by the European Court of Human Rights as requiring a remedy
in domestic law only in respect of grievances which can be regarded as
"arguable" in terms of the Convention (cf. for example Eur. Court H.R.,
Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23,
para. 52).
However, having regard to its above conclusions in respect of the
Convention complaints submitted, the Commission also considers that the
applicants do not have any "arguable claims" of a violation of the
provisions invoked for these complaints. Furthermore, the Commission
recalls that the domestic courts considered all complaints which the
applicants have submitted to the Commission. In these circumstances it
finds no appearance of a violation of Article 13 (Art. 13) of the
Convention.
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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy