AS TO THE ADMISSIBILITY OF
Application No. 14061/88
by Yvonne and Ioannis ZISOPOULOS
against Sweden
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 10 July 1988
by Yvonne and Ioannis ZISOPOULOS against Sweden and registered
on 26 July 1988 under file No. 14061/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows:
The applicants, Mr. Ioannis and Mrs. Yvonne Zisopoulos, who
are husband and wife, were born in 1947 and 1952 respectively. They
are Swedish citizens and live at Spånga in Sweden. By profession,
the husband is a shop manager and the wife is a cleaner. Before the
Commission the applicants are represented by Mr. Lennart Möller, a
lawyer practising in Stockholm.
The applicants have a son, Konstantin, born in 1984.
On 5 July 1984, the day after Konstantin was born, the Eastern
Social District Council (östra sociala distriktsnämnden) of the
municipality of Solna took Konstantin into immediate care 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 1980
Act"). Konstantin was placed in the Klingsta children's home.
On 30 July 1984, on the basis of a report on social and
medical investigations, the District Council filed a request with the
County Administrative Court (länsrätten) of Stockholm that the
applicant's son be taken into care pursuant to Section 1 para. 2 (1)
of the 1980 Act. On 20 August 1984 the County Administrative Court
ordered that the son be taken into care under the 1980 Act.
The applicants appealed to the Administrative Court of Appeal
(kammarrätten) of Stockholm. On 26 February 1985 the Administrative
Court of Appeal confirmed the judgment of the County Administrative
Court.
The applicants appealed to the Supreme Administrative Court
(regeringsrätten), which refused leave to appeal on 7 July 1985.
In September 1985 Konstantin was placed in the foster home of
Mr. and Mrs. Agermo in the Stockholm area, where he is still staying.
In the meantime on 30 April 1985, the Social Council decided
pursuant to Section 16 (1) of the 1980 Act to restrict the applicants'
access to their son to once a month and once at Christmas and Easter
and on the son's birthday and name-day. The applicants appealed to the
County Administrative Court which, on 20 July 1985, confirmed the
restrictions.
Following a request of 11 February 1986 by the applicants for
the termination of the care of their son, it was decided that the
applicants should participate in an investigation at the Child
Psychiatric Ward at the Karolinska Hospital, where the relations
between the parents and their son should be observed. It was also
decided that the National Board of Health and Social Welfare
(socialstyrelsen) should be consulted.
The applicants thus stayed with their son daily from
7 May to 3 June 1986 at the Child Psychiatric Ward of the hospital.
On 16 January 1987 the Social Council rejected the request for
termination of the care on the ground that the applicants' psychological
condition constituted a danger to their son's health and development.
The decision was based mainly on the medical report obtained from the
Child Psychiatric Ward and the statement from the National Board of
Health and Social Welfare, which both concluded that the parents were
still unable to respond to the child's emotional needs and to satisfy
his demand for security.
The applicants appealed to the County Administrative Court.
They applied for the termination of the care; in the alternative they
demanded that access to their son be extended. Having been considered
schizophrenic, the applicants raised the question whether a schizophrenic
person is generally unable to take care of a child. The Court held
hearings on 26 and 27 May and on 22 June 1987 at which the applicants
were present and assisted by counsel under the Legal Aid Act
(rättshjälpslagen). The son was represented by officially appointed
counsel. At the request of the applicants, Dr. D., a psychologist who
since November 1984 had been in continuous contact with the applicants,
gave evidence, as did some other witnesses. Chief doctor G.B. at the
Child Psychiatric Ward was heard as a witness. The nurse K.H. and the
welfare officer H.K., both of whom were members of the team observing
the family during the investigation at the Child Psychiatric Ward, were
heard as witnesses. During the hearings various written opinions from
the medical files were examined.
In its judgment of 20 July 1987, the County Administrative
Court rejected the appeal. It stated inter alia:
"The investigation indicates that Ioannis' as well as
Yvonne's health is better or in any case more stable than
earlier. The Court can therefore no longer maintain that it
is the parents' illnesses or what remains thereof that cause
their ability or inability to satisfy Konstantin's needs,
which it is now the task for the Court to examine.
...
As regards Ioannis' and Yvonne's ability to take care of
Konstantin, the examination indicates the following. Both
parents have difficulties to satisfy Konstantin's emotional
needs. As to their practical ability, when taking care of
Konstantin, Yvonne proves to be awkward and Ioannis is not
interested in helping her with the practical problems that the
care situation demands, except for shorter periods when
elements of pleasure and play characterise the situation. The
parents' undeveloped emotional relation does not allow them to
realise and satisfy their own needs, which in itself makes the
situation more complicated.
Having regard to this the Court finds that Ioannis and
Yvonne (cannot be regarded as) able to take care of
Konstantin or to give him the security which is required
of them for terminating the public care..."
As to the applicants' question whether a schizophrenic person
is generally unsuitable to care for children, the Court replied as
follows:
"The Court always examines each case on the basis of the
facts in the particular case. The Court's experience is
that schizophrenia is always a serious element of risk when
it comes to satisfying another person's needs, in particular
emotional needs. In any case when the individual has an
attack of his sickness he is normally unable to cope with
his own and others' practical needs. In practice the
decisive factors in the individual case are the parent
constellation and what other close human contacts the sick
parent has."
The applicants appealed to the Administrative Court of Appeal
in Stockholm which, on 10 November 1987, held a hearing at which the
applicants were present and were assisted by a lawyer under the Legal
Aid Act. The child was represented by officially appointed counsel.
In a judgment of 4 December 1987 the Administrative Court of Appeal
confirmed the judgment of the County Administrative Court. The Court
shared the County Administrative Court's assessment that the
applicants' psychological illness, although the parents still suffered
from a lingering psychological weakness, in itself no longer prevented
lifting the public care.
The Administrative Court of Appeal found however that the
result of the investigation and other facts of the case, submitted to
the County Administrative Court and being decisive for its judgment,
were not entirely conclusive. In making an overall assessment the
Court stated:
"The acute deficient conditions in the home environment,
which were at the basis of the decision on public care
of the child under the 1980 Act, cannot be considered as
continuing. Having regard to the general consideration
accounted for above and with particular regard to the result
of the investigation carried out at the Child Psychiatric
Ward, the Administrative Court of Appeal finds that it is
still not possible to transfer to the parents the
responsibility for the care of their son. The care under
the 1980 Act shall therefore continue."
The Court also considered that an extended right of access
could probably involve a more mutual contact between the parents and
Konstantin which could be to Konstantin's advantage in his further
development.
Two lay assessors dissented. They considered that the care
order should be lifted.
The applicants appealed to the Supreme Administrative Court
(regeringsrätten) which, on 29 January 1988, refused leave to appeal.
COMPLAINTS
1. The applicants complain that Konstantin's separation from his
natural parents and his home without any justifiable reason violates
Article 8 of the Convention.
2. The applicants further allege that the background of one of
the applicants - his specific culture and way of life as a Greek
immigrant - may explain the above encroachment on the applicants'
rights. In their view this is an interference with their rights under
Article 8 of the Convention which is not based on objective grounds
but on the national origin of one of the applicants and hence
constitutes a violation of Article 14 of the Convention.
THE LAW
1. The applicants allege a violation of Article 8 (Art. 8) of the
Convention on the ground that their son is kept in public care without
sufficient reasons.
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 Commission recalls that the mutual enjoyment by parent and
child of each other's company constitutes a fundamental element of
family life. Furthermore, the natural family relationship is not
terminated by reason of the fact that the child is taken into public
care (see the W. v. the United Kingdom judgment of 8 July 1987,
Series A no. 121, p. 27, para. 59). It follows that the measure at
issue, i.e. the decision not to terminate the care, amounted to
an interference with the applicants' right to respect for their family
life as protected 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.
It is established that the relevant provisions of the 1980 Act
with Special Provisions on the Care of Young Persons satisfy the
requirement of the quality of the law inherent in the notion of "law"
(cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130,
pp. 30-31, paras. 60-63). The Commission finds no elements in the
present case which suggest that the refusal to terminate the care was
contrary to Swedish law. In these circumstances the Commission is
satisfied that the interference was taken "in accordance with the law"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission further considers that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2), namely the
interests of the child, which falls under the expressions "for the
protection of health and morals" and "for the protection of the
rights and freedoms of others".
It remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the case-law the notion of necessity implies that
the interference corresponds to a pressing social need. A margin of
appreciation is left to the Contracting States. However, the
Convention organs' review is not limited to ascertaining whether a
respondent State has exercised its discretion reasonably, carefully
and in good faith. 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. above-mentioned Olsson judgment, pp. 31-32, paras. 67-68).
In the present case, the applicants allege that the refusal to
terminate the care of the child was based on insufficient reasons.
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 assisted by a lawyer on
these occasions. The Courts heard several persons, including the head
of the Child Psychiatric Ward, where the applicants and their child
had been observed. Also the nurse and the welfare officer belonging
to the team at the Child Psychiatric Ward were heard. Reports
compiled by the social administration and medical files and reports
compiled by the Child Psychiatric Ward were available to the courts.
These reports were in turn supported by a number of persons well
acquainted with the case. Before the courts the applicants had the
possibility of presenting any argument or document, which in their
opinion could be relevant. Having regard to these facts the
Commission finds that, insofar 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.
However the refusal to terminate the care of the child must
also be supported by sufficiently sound and weighty considerations
since such a decision is 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 given can be considered
"relevant and sufficient" for the purposes of Article 8, the
Commission must further examine the reasons adduced by the courts
and the evidence that was available to them.
As regards the reasons for the refusal to terminate the care of
the child, the Commission notes the findings of the courts as quoted
above. The Administrative Court of Appeal found that, although the
applicants still suffered from a lingering psychological weakness, this
was not in itself sufficient for continuing the care. The Court
nevertheless found that at the relevant time it was not yet possible to
lift the care order. This finding was based, in particular, on the
results of the investigation carried out at the Child Psychiatric Ward.
The Commission further recalls that the refusal to terminate care was
based on a report compiled by the social administration, including the
medical report compiled by the Child Psychiatric Ward, where the family
had stayed for investigation. These reports were in turn supported by
statements from persons well acquainted with the case, including a
chief doctor, a nurse and a welfare officer. Above all, the County
Administrative Court's judgment, as well as that of the Administrative
Court of Appeal, were founded not only on written material but also on
hearings in the presence of the applicants.
In this context, the Commission observes that in general it is
justifiable not to terminate public care unless the improvement in the
circumstances that occasioned it appears with reasonable certainty to
be stable; it would clearly be contrary to the interests of the child
concerned to be restored to his parents, only to be taken into care
again shortly afterwards (cf. above-mentioned Olsson judgment, p. 35,
para. 76 in fine).
In the light of the foregoing the Commission finds that the
Swedish authorities had "sufficent" reason for thinking that it was
necessary for the care decision to remain in force.
Accordingly the Commission finds that the refusal to terminate
the care 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 manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
2. The applicants further complain that the first applicant has
been discriminated against on account of his national origin. They
allege a breach of Article 14 (Art. 14) of the Convention, which prohibits
discrimination on the grounds of sex, race, colour, language, religion,
political or other opinion, national or social origin, association with
a national minority, property, birth or other status, in relation to
the enjoyment of the rights and freedoms set forth in the Convention.
However, the Commission finds nothing in the case file to
substantiate this allegation.
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
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy