AS TO THE ADMISSIBILITY OF
Application No. 26259/95
by Kerstin WOLLMAR and Others
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 19 September 1994
by Kerstin Wollmar and Others against Sweden and registered on
20 January 1995 under file No. 26259/95;
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 first applicant is a teacher born in 1943 and residing at
Falköping. The other applicants are her son K, a cook born in 1967 and
residing at Tidaholm, and her daughters A, a student born in 1973 and
residing at Falköping, and D, born in 1982 and presently residing at
Skara. They are all Swedish citizens.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 18 November 1991 the first applicant attended a school
conference at Tidaholm, where she was living at the time.
The same day, the Social Council (Socialnämnden) of Tidaholm
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 D into public care on a provisional
basis. She was placed at the Children's Psychiatric Clinic (Barn- och
ungdomspsykiatriska enheten) at Skövde. The Social Council's decision
was put before the County Administrative Court (Länsrätten) of the
County of Skaraborg which, on 22 November 1991, set aside the decision,
finding that it was not supported by sufficient reasons.
On 23 November 1991 the first applicant came to the clinic to
take her daughter home. This was allegedly refused by the personnel.
Instead, the first applicant was put under sedation and taken into
compulsory psychiatric care pursuant to the Act on Institutional
Psychiatric Care in Certain Cases (Lagen om beredande av sluten
psykiatrisk vård i vissa fall, 1966:293).
On 28 November 1991 the Social Council again decided
provisionally to take D into care. This decision was confirmed by the
County Administrative Court on 2 December. She was placed at a
children's home at Skara.
The Social Council later applied to the Court for a care order
concerning D 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.
After having held a hearing in the case, the Court, by judgment
of 11 February 1992, granted the application and ordered that D be
taken into public care. It considered that her development was delayed
and that she was in need of special assistance. It further found that
it had for many years been impossible to give D the necessary
assistance due to her mother's conflicts with the personnel at D's day-
care centre and school, social welfare officers and medical services
personnel. The Court also took into account that the first applicant
had been in bad health for some time and was undergoing psychiatric
treatment. It concluded that there was a clear risk of impairment of
D's development due to insufficient care.
The first applicant later requested that the public care be
terminated. Her request was rejected by the Social Council on 13 August
1992. She appealed to the County Administrative Court.
After another hearing, the Court, on 3 September 1992, decided
that D should remain in care. It reiterated that D was in need of
special assistance and paid particular attention to the testimony of
the chief physician at the psychiatric clinic where the first applicant
had been treated until 1 June 1992, from 5 February on a voluntary
basis. The physician had stated before the Court that the first
applicant suffered from a personality disorder and was in need of
psychotherapy for five or ten years. As she did not accept the help she
had been offered for herself and D, the physician found that she was
not able to take care of her daughter.
No appeals were made against the judgments of 11 February and
3 September 1992.
A further request for termination of the public care of D was
rejected by the Social Council on 4 March 1993. Following the first
applicant's appeal against this decision, the County Administrative
Court held a further hearing, during which it heard the first applicant
and her counsel, D's counsel, representatives of the Social Council and
an employee at the children's home. It also heard B.H., a psychologist
who, after having met the first applicant and D on several occasions,
concluded that D had a learning disability and a disturbed development
and that it was too early to say whether the public care could be
terminated.
The Court also had at its disposal two medical certificates
issued by M.H., a chief physician specialising in psychiatry who had
treated the first applicant in December 1991 and since 1 October 1992.
In the first certificate dated 25 February 1993, M.H. stated that the
first applicant was recovering and that there were no obstacles to
returning D to her. However, according to the later certificate dated
10 June 1993, she had been under institutional care during the period
9 March - 4 June 1993 as she was suffering from an affected psychosis
in a manic phase and a personality disorder of a borderline nature. She
would be in need of medication and conversational therapy for a long
period of time and was, according to M.H., not wholly capable of having
the full responsibility for her daughter.
By judgment of 16 November 1993, the Court rejected the appeal.
It found that D had developed favourably at the children's home and
that the first applicant had recovered enough to be discharged from
psychiatric care and resume work. It noted, however, their continued
problems and concluded that the first applicant was not yet able to
take care of her daughter.
The first applicant appealed to the Administrative Court of
Appeal (Kammarrätten) of Jönköping. It held a hearing and heard the
same persons as the County Administrative Court. It also heard M.H.,
who found that it was not possible for D to move back home as her
mother's health was not stable enough. B.H. stated that there was a
risk that D would not be sufficiently cared for if the public care was
terminated.
On 10 February 1994 the appellate court, reaching the same
conclusions as the County Administrative Court, rejected the appeal.
On 14 April 1994 the Supreme Administrative Court (Regerings-
rätten) refused leave to appeal.
The applicants allege that the Social Council has subsequently
decided to refuse the first applicant access to D and to reject a
further request for termination of care. Apparently, these cases are
pending before the County Administrative Court. The applicants further
allege that, according to a decision taken by an employee at the
children's home, the first applicant is not allowed to talk to D on the
phone.
COMPLAINTS
1. Invoking Article 8 of the Convention, the applicants complain of
the public care of D and the restrictions on access.
2. K and A complain, under Article 6 of the Convention, that they
have not been able to bring before a court the questions of the public
care of D and their access to D.
3. The first applicant contends that the real reason for taking her
daughter into care on 18 November 1991 was to prevent her from
presenting, at the school conference she was attending the same day,
certain ideas which were apparently disliked by the school authorities
at Tidaholm. In this respect, she invokes Article 10 of the Convention.
4. The first applicant complains, under Articles 3 and 5 of the
Convention, that she was put under sedation and taken into compulsory
psychiatric care on 23 November 1991 without being mentally ill.
Moreover, being under sedation, she was allegedly prevented from
appealing against the decision to take her into care in violation of
Article 6 of the Convention. In this connection, all applicants further
complain, under Article 8 of the Convention, that the first applicant
was separated from her family.
5. The first applicant further complains on her own behalf and on
behalf of D that, on 23 November 1991, the personnel at the Children's
Psychiatric Clinic refused to let her take her daughter home. She
claims that she could not appeal against this refusal and invokes
Articles 6 and 13 of the Convention.
6. The first applicant maintains that she is not allowed to talk to
D on the phone according to a decision of an employee at the children's
home. Allegedly, there is no possibility to appeal against this
decision. She claims that this constitutes violations of her rights
under Articles 6, 8, 10 and 13 of the Convention and D's rights under
Articles 6, 10 and 13.
THE LAW
1. The applicants complain of the public care of D and the
restrictions on access. They invoke 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 Commission first recalls that, pursuant to Article 26
(Art. 26) of the Convention, it "may only deal with the matter after
all domestic remedies have been exhausted". No appeals were made
against the County Administrative Court's judgments of 11 February and
3 September 1992. The Social Council's decision on access, taken
subsequent to the Supreme Administrative Court's decision of 14 April
1994, is apparently pending before the County Administrative Court.
Thus, the Commission may only examine the Social Council's decision of
4 March 1993 not to terminate the public care of D and the subsequent
court judgments.
The Commission finds that the refusal to terminate the care of
D interfered with the applicants' 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 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 D, 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 D.
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 and the Administrative Court of Appeal, in their
respective judgments of 16 November 1993 and 10 February 1994, found
that, due to the first applicant's and D's continued problems, the
first applicant was not yet able to take care of her daughter. The
Commission also notes the statements made before the appellate court
by M.H. and B.H., according to whom D could not return home as the
first applicant's health was not stable enough and as there was a risk
that D would not get sufficient care.
The Commission further recalls that the County Administrative
Court and the Administrative Court of Appeal, before giving their
judgments, had held hearings at which they heard, in addition to M.H.
and B.H., the first applicant and her counsel, D's counsel,
representatives of the Social Council and an employee at the children's
home. 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
refusal to terminate the care of D was supported by relevant and
sufficient reasons and that, having regard to their margin of
appreciation, the Swedish authorities were entitled to think that it
was necessary for D to remain in 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 this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. K and A complain about lack of access to court as regards the
questions of the public care of D and their access to D. They invoke
Article 6 (Art. 6) of the Convention, which in its relevant parts reads
as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing by [a] ...
tribunal ..."
The Commission recalls that in order for Article 6 para. 1
(Art. 6-1) to apply to the proceedings in question it must first be
ascertained whether there was a dispute over a "right" which can be
said, at least on arguable grounds, to be recognised under domestic law
(cf., e.g., Eur. Court H.R., W v. the United Kingdom judgment of
8 July 1987, Series A no. 121-A, p. 32-33, para. 73).
The Commission further recalls that, under Swedish law, the
rights over a child, including the right to bring legal proceedings on
behalf of the child, are normally vested in its parents or custodians.
Moreover, siblings have no right under the law to have access to each
other (cf. No. 21827/93, Eriksson and Alanko v. Sweden, Dec. 30.11.94,
unpublished). K and A are not custodians of D. Thus, they cannot claim
on any arguable ground that they have a right under domestic law.
Article 6 (Art. 6) therefore does not apply to the present complaint
(cf. No. 12763/87, Lawlor v. the United Kingdom, Dec. 14.7.88,
D.R. 57 p. 216).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The first applicant contends, under Article 10 (Art. 10) of the
Convention, that D was taken into care so as to prevent the first
applicant from presenting certain ideas at a school conference.
The Commission, however, is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of the Article invoked as, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter ... within a period of
six months from the date on which the final decision was taken". Where
no domestic remedy is available, the six months period runs from the
date of the act which is itself alleged to be in violation of the
Convention (cf., e.g., No. 10389/83, Johnson v. the United Kingdom,
Dec. 17.7.86, D.R. 47 p. 72).
The Commission observes that the conference and the provisional
taking of D into public care occurred on 18 November 1991. The present
application was introduced on 19 September 1994, which is more than six
months later.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
4. The applicants claim that the sedation of the first applicant and
the taking of her into compulsory psychiatric care violated Articles
3, 5, 6 and 8 (Art. 3, 5, 6, 8) of the Convention.
The Commission observes that the compulsory psychiatric care of
the first applicant was terminated on 5 February 1992.
It follows that this part of the application has also been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
5. Under Articles 6 and 13 (Art. 6, 13) of the Convention, the first
applicant further complains on her own behalf and on behalf of D that
she could not appeal against the refusal of the personnel at the
Children's Psychiatric Clinic to let her take her daughter home.
The Commission observes that the decision against which the first
applicant wished to appeal was taken on 23 November 1991.
It follows that this part of the application has also been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
6. The first applicant complains, under Articles 6, 8, 10 and 13
(Art. 6, 8, 10, 13) of the Convention on her own behalf and under
Articles 6, 10 and 13 (Art. 6, 10, 13) on behalf of D that she is not
allowed to talk to D on the phone and that there is no possibility to
appeal against this decision.
The Commission, recalling that proceedings concerning the first
applicant's access to D are apparently pending in the County
Administrative Court, considers that the applicants' submissions fail
to substantiate the present complaint.
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.
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