Hudoc reference
REF00000333 Document type Judgment (Merits and just satisfaction) Title CASE OF MARGARETA AND ROGER ANDERSSON Application number 00012963/87 Date 25/02/1992 Respondent Sweden Conclusion Violation of Art. 8 ; Pecuniary damage - claim rejected ; Non-pecuniary damage - financial award ; Costs and expenses award - Convention proceedings Published in A226-A Keywords Respect for family life ; Respect for correspondence ; Interference ; Prescribed by law ; Protection of health ; Protection of morals ; Protection of the rights and freedoms of others ; Necessary in a democratic society ; Effective remedy ; Just satisfaction
EUROPEAN COURT OF HUMAN RIGHTS
In the case of Margareta and Roger Andersson v. Sweden*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr F. Gölcüklü,
Mr J. Pinheiro Farinha,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mr J. De Meyer,
Mr F. Bigi,
Mr G. Lagergren, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 August 1991 and
20 January 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 61/1990/252/323. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") and by the Government of the
Kingdom of Sweden ("the Government") on 14 and 17 December 1990
respectively, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 12963/87) against
Sweden lodged with the Commission under Article 25 (art. 25) by
Mrs Margareta Andersson and her son Roger Andersson, who are Swedish
nationals, on 13 February 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Sweden recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).
The object of the request and of the Government's application was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Article 8
(art. 8) of the Convention and also, in the case of the request,
Article 13 (art. 13).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that
they wished to take part in the proceedings and designated the
lawyer who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mrs E. Palm, the elected judge of Swedish nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). However, on 8 January 1991 Mrs Palm
had withdrawn from consideration of the case pursuant to Rule 24 para. 2
and by letter of 22 February the Agent of the Government notified
the Registrar of the appointment of Mr Gunnar Lagergren, former
member of the Court, as an ad hoc judge (Article 43 of the
Convention and Rule 23) (art. 43). On 21 February, in the presence
of the Registrar, the President drew by lot the names of the other
seven members, namely Mr J. Cremona, Mr F. Gölcüklü, Mr J. Pinheiro
Farinha, Mr A. Spielmann, Mr J. De Meyer, Mr I. Foighel and
Mr F. Bigi (Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43). Subsequently, Mr Foighel, who was unable to attend, was
replaced by Mr L.-E. Pettiti, substitute judge (Rule 22 para. 1 and
Rule 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the lawyer for the
applicants on the organisation of the procedure (Rules 37 para. 1
and 38).
5. Thereafter, in accordance with the President's orders and
directions, the Registrar received from the applicants and the
Government, on various dates between 15 March and 26 August 1991,
their respective observations, the applicants' claims under
Article 50 (art. 50) of the Convention and a number of documents.
In a letter of 30 May, the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
On 4 July and 5 August 1991 the Commission filed a number of
documents which the Registrar sought from it on the President's
instructions.
6. As further directed by the President, the hearing took place
in public in the Human Rights Building, Strasbourg, on
26 August 1991. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr C.H. Ehrenkrona, Legal Adviser,
Ministry for Foreign Affairs, Agent,
Mr R. Gustafsson, Legal Adviser,
Ministry of Health and Social Affairs,Adviser;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicants
Mrs S. Westerberg, lawyer, Counsel,
Mrs B. Hellwig, Adviser.
The Court heard addresses by Mr Ehrenkrona for the
Government, by Mr Danelius for the Commission and by Mrs Westerberg
for the applicants as well as their replies to questions put by the
Court and by some of its members individually.
7. On 5 and 13 September 1991, respectively, the registry
received further replies in writing from the applicants and the
Government to questions put at the hearing.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
8. Mrs Margareta Andersson and her son Roger Andersson were born
in 1951 and 1974 respectively and are both Swedish citizens. They
resided first at Växjö but in 1985 they moved to Nybro.
9. On 5 June 1985 the Chairman of the Social Committee no. 1 of
the Social Council (socialnämndens socialutskott I) of Växjö decided
that Roger should be immediately taken into public care on a
provisional basis under section 6 of the 1980 Act containing Special
Provisions on the Care of Young Persons (lagen 1980:621 med
särskilda bestämmelser om vård av unga - "the 1980 Act"). The
purpose of this decision was to enable an investigation into his
situation by the Children's and Juveniles' Psychiatric Clinic ("the
Clinic") at Växjö. The decision was based on a social welfare
officer's report of the same date which noted inter alia the
following. When Roger started school in 1981 it had been observed
that he was lacking in social adaptation and maturity, he was
behaving in a very shy, inhibited and insecure manner. The social
welfare authorities at Växjö had then made several suggestions to
help Roger which Margareta Andersson rejected. As from
December 1984 Roger stopped attending school regularly. He and his
mother later moved to an address unknown to the social welfare
authorities which the latter managed to trace (at Nybro) after an
investigation. The report concluded that since Roger's health and
development were seriously disturbed in connection with his mother's
behaviour, it was likely that he had been treated in a mentally
harmful manner for a considerable period of time. In view of the
fact that his health and development were increasingly in danger and
that Margareta Andersson would obstruct the investigation, the need
for public care was urgent.
10. On 11 June 1985 the social welfare authorities decided to
prohibit contacts between the applicants, pending a decision of the
County Administrative Court (länsrätten) at Växjö on the care issue.
They permitted however some contacts by telephone. The prohibition
was to be reviewed as soon as it was deemed not to be harmful to
Roger to have contact with his mother.
11. On 14 June 1985 the County Administrative Court, in two
decisions, confirmed the interim care order and upheld the
prohibition of access. The Deputy Chief Doctor of the Clinic, who
was heard as an expert witness, had stated inter alia that it was
necessary to control Margareta Andersson's contact with Roger; it
would be "too dramatic for Roger if she were allowed to visit him".
Margareta Andersson could not cope with being separated from her
son; she in fact needed assistance just as much as he did. It
should not be for him to take care of her. Prohibition of access
was therefore necessary for as long as Margareta Andersson was in
such a bad condition.
Margareta Andersson unsuccessfully challenged these decisions
before the Administrative Court of Appeal (kammarrätten) in
Jönköping. The Supreme Administrative Court (regeringsrätten)
refused leave to appeal on 26 July 1985.
12. The Social Council applied to the County Administrative Court
for a care order under the first sub-paragraph to the second
paragraph of section 1 of the 1980 Act. After holding a hearing,
the court granted the application on 17 July 1985 on, inter alia,
the following grounds:
"From the investigation in the case it does not appear that
there is any reason to criticise the manner in which
Margareta Andersson manages her home. In so far as can be
ascertained, the material conditions [there] are
satisfactory. However, the investigation shows that the
situation in the home is likely to jeopardise a young
person's emotional and social development. Before the County
Administrative Court, Margareta Andersson has expressed the
view that the information contained in the Social Council's
application is essentially incorrect. In the light of the
proceedings in this case, Margareta Andersson must thereby be
considered to confirm the allegation that she is unable to
understand Roger's situation. It has clearly appeared from
Roger's behaviour that his social and emotional development
is deranged. It is therefore essential for Roger to receive
assistance and support to overcome his problems. In view of
Margareta Andersson's attitude, it is not likely that the
necessary measures can be taken by herself or with her
approval. The task of rehabilitating Roger must therefore be
entrusted to the social welfare authorities. The Social
Council's application shall therefore be granted."
13. As decided by the Chairman of the Social Committee (see
paragraph 9 above), Roger was placed at the Växjö Clinic on
5 June 1985. But, on 15 July he ran away and joined his mother. On
26 August she reached an agreement with the Social Council by virtue
of which the public care of Roger continued, after a brief period in
the Clinic, in their home at Nybro.
14. As from March 1986, Roger stopped attending school. The
Chairman of the Social Committee consequently had him returned to
the Clinic on 29 April with a view to placing him in a foster home.
However, on 13 May Roger again ran away from the Clinic and stayed
with his mother, until the police took him back on 5 August 1986.
15. In the meantime, on 22 May 1986, the Social Council decided
to place Roger in a foster home. Margareta Andersson appealed
against the decision to the County Administrative Court, which held
a hearing at which she was present and assisted by counsel and Roger
was represented by official counsel (offentligt biträde). It
rejected the appeal on 19 August. Her further appeal to the
Administrative Court of Appeal was dismissed on 17 October. On
19 December 1986 the Supreme Administrative Court refused leave to
appeal.
While these proceedings were in progress, Roger was
transferred on 23 August to a foster home - with Mr Meijer and
Mrs Höjsholt - at Glimåkra, situated approximately 120 kilometres
from Nybro. Except for two periods of hospitalisation, he stayed
there until the public care order was terminated on 27 April 1988
(see paragraph 45 below). He was taken to hospital, firstly, from
3 to 25 February 1987, for treatment of diabetes; and later, from
26 February to 3 May 1988, because he had taken an overdose of
insulin. Since the latter date he has been living with his mother
at Nybro.
B. Limitations on access
1. Decisions relating to prohibitions of access
16. On 6 August 1986 the Assistant District Chief of the social
welfare authorities at Växjö decided:
"Since it is considered necessary in order to achieve the
purposes of the care order, the undersigned officer in
charge, having been duly authorised by the Social Council and
pending the Social Committee's meeting, has decided that
prohibition of access (umgängesförbud) between [the
applicants] under section 16 (1) of the 1980 Act shall apply
as from today and until further notice.
The decision shall be reviewed as soon as personal contact
between the mother and the child is no longer considered to
be harmful to the child."
17. Subsequently, in his report of 15 August 1986 to the Social
Council, the social welfare officer responsible for the case
explained the reasons for the above-mentioned decision and
recommended that the prohibition of access be continued as part
of a care-plan for Roger. He relied mainly on the following
considerations:
(a) Margareta Andersson had been involved with Roger's
escaping twice from the Clinic. Moreover, she had expressed an
intention of moving to an address unknown to the public authorities
or to leave the country, in order to avoid "persecution".
(b) Margareta Andersson had exerted a negative influence on
Roger during her visits at the Clinic; on some occasions her
behaviour had been so inappropriate that officials of the Clinic had
turned her away.
(c) While Roger stayed at the Clinic, it proved impossible to
induce Margareta Andersson to adopt any form of co-operation.
Whilst she had been refused contact with Roger, she had nevertheless
hidden money and messages inciting him to escape in clothes and toys
which she had brought for him to the Clinic.
(d) Staff members of the section at the Clinic which treated
Roger had observed that he had behaved in a "very suspicious but
calm" manner and that he had become more attached to the staff. He
had seemed to handle the situation better than his mother and had
not requested to call her by telephone.
(e) In order to achieve the purposes of the care, it was
necessary to temporarily prevent Margareta Andersson from having
"any form of contact with Roger".
18. According to the report, the decision of 6 August 1986 was
conveyed verbally to Margareta Andersson on 8 August.
19. On 21 August 1986 the Social Committee endorsed the proposed
care-plan, including the prohibition of access. As stated in its
decision:
"[a] prohibition of access is to apply between ...
Margareta Andersson and Roger Andersson, in accordance with
section 16 (1) [of the 1980 Act], until further notice and
awaiting that suitable access could be arranged without
involving harm to the child."
According to the Social Council's submissions during the
ensuing domestic court proceedings (see paragraphs 34-35 below), the
prohibition covered not only meetings but also telephone
communications and correspondence between the applicants.
2. Meetings
20. On authorisation by the social welfare authorities,
Margareta Andersson and Roger met on 5 October and 30 December 1986
at the home of the Helgesson family at Sibbhult, situated near
Glimåkra. A meeting planned for 3 December did not take place
because Margareta Andersson would not accept the conditions for the
meeting.
Mr and Mrs Helgesson had, as explained by the social welfare
officer in a report to the Social Council of 30 March 1987, been
appointed as support foster parents. They were entrusted with the
task of arranging in their home meetings between the applicants, in
order to facilitate contacts between them without causing disruption
to Roger's relationship with his foster home. The meetings were
attended by the Helgesson couple, the foster father - Mr Meijer -
and one or two social workers. They each lasted approximately two
hours. Shortly after the first meeting Roger attempted to escape
from the foster home.
21. A new meeting was planned at the beginning of February 1987,
but it had to be cancelled as Roger was hospitalised for treatment
of diabetes (from 3 to 25 February 1987). The Government submitted
that, during his hospitalisation, special efforts were made to have
Margareta Andersson visit him at the hospital, but it was impossible
to agree on the terms of such visits as she insisted on seeing him
on her own. However, on 19 February 1987 she went to visit Roger.
On this occasion she had a violent row with the foster father who,
against her wishes, had come to attend the visit which ended by him
forcing her to leave the hospital ward. According to the
Government, the incident occurred because Margareta Andersson had
not informed the hospital, the social welfare authorities or the
foster father of her visit and had tried to take Roger with her.
In the applicants' submission, the social welfare authorities had
authorised her to visit Roger on that day. Margareta Andersson and
her representative had made the hospital aware that, since his
situation was far better there than in the foster home, she wished
him to stay. Accordingly, there was never any danger that she would
take him away from the hospital.
22. Margareta Andersson filed a complaint with the police against
the foster father, alleging various acts of assault. The public
prosecutor decided after a preliminary investigation not to pursue
the matter. This decision was subsequently upheld on appeal to the
Director of the Malmö Public Prosecution Authority.
23. Further meetings took place at the Helgesson home on 24 June,
13 July and possibly 20 August 1987. Unlike the previous meetings,
these were attended by Mr and Mrs Helgesson only, as decided by the
County Administrative Court in a judgment of 1 June 1987 (see
paragraph 39 below). According to the Government, a meeting was
also held on 5 August 1987, but the applicants contested this.
24. Margareta Andersson declined to accept proposals by
Mrs Wintler, a social worker appointed by the social welfare
authorities to assist her, on 2 and 24 April, 25 June and
26 October 1987 to take part in the planning of any future meetings
with Roger but expressed her wish to be reunited with him.
25. Subsequently, on 28 November 1987 Roger and Margareta
Andersson met in her own home, in the presence of Mr and
Mrs Helgesson and Mrs Wintler. The Government claimed that such
meetings were also held on 20 December 1987 and on 9 and
30 January 1988, which was denied by the applicants.
26. On 5 February 1988 the Social Committee decided that meetings
be held on a monthly basis until May that year in Margareta
Andersson's home and that, in between, additional meetings be
organised in the Helgesson home (see paragraph 43 below). As
later ruled by the County Administrative Court in a judgment of
17 February, the latter meetings were to be arranged at least twice
a month (see paragraph 44 below).
27. However, on 26 February 1988 Roger was taken to hospital
where he stayed until 3 May (see paragraph 15 above). During this
period his mother was permitted to visit him and, also, to stay
overnight at the hospital. Altogether, she spent approximately two
weeks there.
3. Telephone communications and correspondence
28. According to a memorandum by the Assistant District Chief,
dated 4 March 1987, the prohibition of access between the applicants
was implemented in the following way until further notice:
"The prohibition covers telephone communications and
correspondence. Margareta has the possibility at certain
times of the week to have telephone contacts with Roger's
doctor and with Mrs Helgesson. She also has telephone
contact with [the foster father]. Letters from Margareta to
Roger shall first be scrutinised by [the foster father]."
29. The applicants submitted that Margareta Andersson addressed
about two letters per month to Roger in the foster home but he did
not receive these, apparently because they had been stopped by the
foster father. Moreover, while Roger was in hospital in February
1987, she sent him several letters which he did not receive either,
as they had been stopped by the hospital's personnel and transmitted
to the foster father.
30. The Government, for their part, asserted that, as far as they
were able to establish, only two undated letters from his mother had
been stopped, both probably written in February 1987. One letter
said that she had been talking about the case in a radio programme
and had been refused to contact him by telephone. It also invited
him to inform the doctor at the hospital that he was dissatisfied
with the foster family, with a view to getting assistance from the
doctor. Another letter informed him of the date of the radio
programme and of her new lawyer, who would do everything she could
to get him back home. It moreover asked Roger to write to her about
his conditions at Glimåkra.
31. The Government handed these letters over to the applicants'
representative during the hearing on 26 August 1991. They submitted
that the social welfare authorities had not been able, until late
April 1991, to retrieve the letters which had been stopped.
32. In addition, it appears from the case-file that the foster
father had prohibited Roger to call or write to Margareta Andersson
and had taken certain preventive measures to this effect. Roger
had, nevertheless, sent two letters without permission to his mother
during the autumn of 1986.
33. On 5 February 1988 the Social Committee decided to revoke the
prohibition of correspondence between the applicants and,
furthermore, to allow them to communicate by telephone on condition
that it occurred on Roger's own initiative (see paragraph 43 below).
C. First set of proceedings challenging the limitations
on access
34. Margareta Andersson appealed against the decision of
21 August 1986 (see paragraph 19 above) to the County Administrative
Court, requesting, firstly, that the prohibition of access be
revoked and, secondly, that she be granted a right to talk to Roger
on the telephone. After holding a hearing on 11 September 1986 at
which Margareta Andersson was present and assisted by counsel, the
court, by judgment of 12 September 1986, dismissed the latter
request as being inadmissible and rejected the former on the merits.
It stated:
"Margareta Andersson has asserted inter alia the following:
The prohibition of access decided by the Social Committee
goes beyond what is necessary to implement the care order.
This decision was taken before Roger was transferred to
Glimåkra. The fact that Roger is now living at Glimåkra
constitutes a change of circumstances. There is no
indication that [Margareta Andersson] would now exert a
negative influence on Roger. She has not interfered with the
present care and has not tried to sabotage the measures now
taken. The resentment which she has displayed is rooted in
the fact that she does not understand why care measures had
to be taken. It is true that the bags with clothes which she
brought to Roger when he stayed at the ... Clinic contained
money and a card with a message that she would help him to
leave. This does not mean that she encouraged him to run
away. It was her way of telling Roger that she would try to
get him home by appealing against the care decision. Roger
has a lot of difficulties in the foster home at Glimåkra. On
contacting the foster home by telephone she has been informed
that Roger sits alone in his room crying. He wants to go
home. Moreover he is being used as domestic help there. He
has to do washing up and cleaning.
The Social Council has alleged that, in view of what has
happened in the case, it has been necessary to prohibit
access. This includes a prohibition for Margareta Andersson
to speak to Roger on the telephone. The Council has made
great efforts to get closer contact with Margareta Andersson
and to establish a relationship of effective co-operation.
These have not been successful. It does not wish to risk the
failure of the renewed efforts. The ... Clinic has
emphasised that a failure in this respect could entail a
considerable risk to Roger. Statements made by Margareta
Andersson show that she is prepared to take Roger away.
Roger is developing well in the foster home. The Council
aims at improving its co-operation with Margareta Andersson.
Its intention is that at least one month should lapse after
the transfer before any contacts take place between Margareta
Andersson and Roger. If a suitable agreement can be made
with Margareta Andersson, the Council intends to let her see
Roger at the end of September or the beginning of October.
The County Administrative Court makes the following
assessment of the case. The decision to take Roger into
public care under [the 1980 Act] and his transfer to Glimåkra
are based on the fact that Margareta Andersson has been
unable to give Roger the necessary care. On two occasions,
when Roger has been staying at the ... Clinic ..., he has run
away and, with the help of Margareta Andersson, managed to
stay away for long periods of time. During Roger's last stay
at the ... Clinic, Margareta Andersson tried to give him a
message which, in his eyes, must have meant that she would
take him away. In the light of the proceedings and having
regard to the need of continuing, without interruption, the
care that has just started and of preventing Margareta
Andersson from influencing Roger, the County Administrative
Court finds that the Social Committee has good reasons for
its decision to prohibit access. However, the County
Administrative Court considers it appropriate to underline
that if a well-functioning co-operation with Margareta
Andersson can be established, it is important that a meeting
between Margareta Andersson and Roger take place as planned
by the Social Council.
According to Section 20 (3) [presumably (4)] of [the 1980
Act] a decision of the Social Council may be appealed to the
County Administrative Court when the Council has decided
under section 16 on the access to a child. The County
Administrative Court finds that the Social Committee, by
prohibiting telephone contact with Roger, has limited
Margareta Andersson's access according to section 11 of the
Act. According to section 20 of the Act such a decision
cannot be appealed."
35. Margareta Andersson appealed to the Administrative Court of
Appeal which, after a fresh examination of all aspects of the
prohibition in question, rejected the appeal by judgment of
11 November 1986. Its reasons included the following:
"According to section 16 of [the 1980 Act], the Social
Council may restrict the guardian's right of access to the
child, when it is necessary in order to implement the care
order. Such a restriction may cover a prohibition of
correspondence or telephone communications between the parent
and the child as well as keeping the place of residence of
the child secret. In applying this provision the right of
access should, as a starting-point, not be restricted more
than is absolutely necessary.
The appealed decision to prohibit access included, according
to the Social Council's statement at the hearing before the
County Administrative Court, a prohibition of correspondence
and telephone communications. The entire decision is based
on section 16 of the Act. The County Administrative Court
should therefore have examined those parts of the decision
which concerned prohibition of correspondence and telephone
communications. Margareta Andersson's appeal should
accordingly be examined with respect to the restriction as a
whole.
...
During the care period the Social Council shall in principle
try to maintain contacts between Roger and Margareta
Andersson, but it can be forced by the circumstances to
restrict contacts under the above-mentioned section of the
Act.
From the documents and from what has transpired in the
proceedings in this case, ... it appears that Margareta
Andersson lacks understanding for Roger's need of care and
that she is opposed to Roger being placed outside her home.
Margareta Andersson has prevented earlier attempts to place
Roger away from home by fetching Roger and by staying with
him in a place unknown to the authorities. In view of what
happened during her last meeting with Roger and of her own
[oral] submissions before the Administrative Court of Appeal,
there is reason to believe that she will not accept that
Roger remain in the foster home.
It is an absolute condition for the success of the care in
the foster home that Roger feels secure when staying there.
The foster parents must furthermore be given the possibility
to deal peacefully with Roger's problems. As soon as
Margareta Andersson is able to accept the care measures taken
and the transfer to the foster home and is able to
participate in the implementation of the care, she should
have the opportunity of seeing Roger. However, Margareta
Andersson has shown that for the time being she is not
prepared to take part in the care measures in this way.
In these circumstances there are good reasons for the
decision of the Social Council to prohibit access, including
the prohibition of correspondence and telephone
communications."
36. On 19 December 1986 the Supreme Administrative Court rejected
Margareta Andersson's application for leave to appeal against the
latter judgment.
D. Second set of proceedings challenging inter alia the
limitations on access
37. On 9 April 1987 the Social Committee rejected requests by
Margareta Andersson for termination of the care order and for repeal
of the prohibition of access. It stated, inter alia, that:
"continued prohibition of access, under section 16 (1) of
[the 1980 Act], shall apply ... until suitable access can be
arranged without harm to the child".
38. On reviewing this decision on 14 May 1987, the Social
Committee further decided:
(a) although the decision of 9 April 1987 could be
interpreted as a total prohibition of access, it only amounted to a
restriction on access;
(b) such restrictions should continue in accordance with
section 16 (1) of the 1980 Act. Every instance of contact between
the applicants should be planned and carried out in consultation
with the social welfare authorities at Växjö, at Mr and
Mrs Helgesson's home and in the foster father's presence.
39. Margareta Andersson appealed to the County Administrative
Court, requesting termination of the care measure and, in the
alternative, revocation of the restrictions on access. The court
held a hearing at which she and her son were each represented by
counsel and evidence was given by the foster father and
Mr Mats Eriksson, a social worker. The latter had been assisting
and supervising the foster home for a period of one month
immediately after Roger's placement there. By judgment of
1 June 1987, the court amended the Social Council's decision of
9 April in such a way that future meetings between the applicants
were to be attended by Mr and Mrs Helgesson only and dismissed the
remainder of the appeal. With regard to the restrictions on access,
it held:
"Concerning the restrictions on the right of access, the
Social Council has stated that there is no restriction as to
how many meetings can be arranged. The restrictions also
include a prohibition of contact by telephone or letters.
According to section 16 of [the 1980 Act] the Social Council
may restrict the guardian's right of access, when this is
necessary in order to achieve the purposes of the care order.
When applying this provision the aim should be not to
restrict the right of access more than is absolutely
necessary.
Margareta Andersson has shown at the hearing before the
County Administrative Court that she does not understand
Roger's need for care. Her only aim is that Roger return
home. Her conduct creates a conflict of loyalties for Roger.
Margareta Andersson's previous actions in connection with
Roger's escapes from the ... Clinic at Växjö, Roger's attempt
to run away after her visit to the foster home, and Roger's
behaviour when she visited the hospital at Kristianstad, show
that restrictions on access are necessary for the successful
care of Roger. The County Administrative Court finds that
the Social Council has good reasons to restrict the right of
access including contact by letters or telephone.
Margareta Andersson has stated that she does not intend to
visit Roger if Henry Meijer [the foster father] is present
during the visits. The County Administrative Court finds it
important that the Social Council's decision be modified so
as to encourage Margareta Andersson to visit Roger. This can
initially only be done if Henry Meijer is not present during
the visits. In order to facilitate the establishing of
contacts no one else appointed by the Social Council should
be present. During the visit, which is to take place in the
Helgesson home, the presence of the Helgesson couple would be
sufficient. No other change should be made in the decision
to place restrictions on access."
40. On appeal, the Administrative Court of Appeal, after holding
a hearing at which Margareta and Roger Andersson were represented in
the same way as before the County Administrative Court and the
former was herself present, upheld the above-mentioned judgment on
10 July 1987. It gave the following reasons for maintaining the
restrictions on access:
"At the hearing it was said that Margareta Andersson had
visited Roger on 24 June [1987] at the Helgesson home at
Sibbhult. The visit - which was the first meeting ... since
February - turned out well. The more precise conditions for
future contacts - as well as future care - depend to a great
extent on Margareta Andersson's attitude and conduct.
The Administrative Court of Appeal considers that further
successful encounters, such as for example at the Helgesson
home, must be established before other kinds of contact can
be allowed."
41. Margareta Andersson subsequently applied for leave to appeal
to the Supreme Administrative Court, but it refused such leave on
20 August 1987.
E. Third set of proceedings challenging inter alia the
limitations on access
42. On 15 December 1987 the Social Committee again dismissed a
request by Margareta Andersson to terminate the care or,
alternatively, to lift the restrictions on access.
43. Later, on 5 February 1988, the Social Committee decided that
monthly meetings be arranged in Margareta Andersson's home, in
addition to meetings in the Helgesson's home. It moreover revoked
the prohibition imposed on correspondence and reduced those on
telephone communications (see paragraphs 26 and 33 above).
44. In a subsequent appeal to the County Administrative Court,
Margareta Andersson requested that the care order be terminated, in
the alternative that it be carried out in her home, in the further
alternative that the restrictions on access be repealed. After
holding a hearing at which each of the applicants were represented
by counsel, the court, in its judgment of 17 February 1988, rejected
the principal claim. As to the two alternative claims it stated:
"The Social Council has not examined Margareta Andersson's
request that the care continue in her home. The County
Administrative Court cannot legally decide where Roger shall
stay. Margareta Andersson's request cannot be examined.
Concerning the issue of restrictions on access the Social
Council has expressed that it intends to assess generously
Margareta Andersson's request to meet Roger at Glimåkra.
Furthermore, the Social Council has stated that the
restrictions do not include a prohibition for Margareta
Andersson and Roger to meet in private, but it does mean that
someone from the Helgesson family must be present in the home
where they meet.
In view of Margareta Andersson's previous actions and her
attitude as concerns the care issue, the County
Administrative Court finds that the restrictions on access
should continue. Such restrictions should be designed so as
not to prevent a successful contact from being established.
The County Administrative Court finds that the restrictions
decided by the Social Committee have been so designed. In
order to avoid any possible uncertainty, the County
Administrative Court considers it appropriate to indicate
that the meetings in the Helgesson home at Glimåkra should
take place at least twice a month. Apart from that, the
County Administrative Court confirms the Social Council's
decision on the right of access. The above shall apply until
the end of the school term in the spring of 1988. Thereafter
a new assessment should be made."
45. Margareta Andersson appealed to the Administrative Court of
Appeal which, on 27 April 1988, ordered termination of the public
care of Roger. It considered that, whilst the main reason for
Roger's previous situation - namely Margareta Andersson's inability
to give him sufficient care and security - still existed, the
purposes of the care order had to a large extent been achieved in
that Roger had gained the ability to have good social relations and
a certain degree of self-esteem. The court noted that Margareta
Andersson's negative attitude towards the social welfare authorities
had rather worsened during the implementation of the care order and
that the likelihood of her continuing to refuse to co-operate with
them and the school was considerable, even if Roger returns to her
home. However, it found that there were reasons to believe that his
return would have a positive impact on his situation, since the kind
of conflicts that arose in connection with the care measures would
be avoided. Moreover, it considered that Roger had become
sufficiently strong and aware of his own situation for him not to be
harmed by a possible lack of care from his mother.
II. RELEVANT DOMESTIC LAW
A. Care decisions
46. 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, when 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 (lagen 1980:621 med
särskilda bestämmelser om vård av unga - "the 1980 Act"). The 1980
Act was replaced by new legislation in 1990 (see paragraphs 65-66
below).
47. Section 1 of the 1980 Act read:
"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 addictive substances, criminal
activity or any other comparable behaviour.
..."
48. 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).
49. The 1980 Act specified that if the Social Council deemed it
necessary to take a child into care, it had to apply to the County
Administrative Court for a decision to this effect (section 2).
B. Implementation of care decisions
1. General
50. Once a decision on public care had been taken, the Social
Council was to execute the decision, take care of the practical
details regarding where to place the child and decide what education
and other treatment he should be given, etc. (sections 11-16).
51. Pursuant to section 11 of the 1980 Act:
"... 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 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
circumstances as are necessary for the discharge of care."
52. 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 responsiblity 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 a job. According to the principles which govern the co-
operation 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
over the young person."
2. Regulation of the right of access
53. Section 15 of the 1980 Act provided for placing restrictions
on the right to correspondence of persons taken into care pursuant
to the second sub-paragraph to the second paragraph of section 1 of
this Act, for such reasons as drug abuse or criminal activities (see
paragraph 47 above). Section 15 read:
"Letters and other mail sent to or received by a person to
whom the provisions of section 13 apply may be subjected to
scrutiny if this is justified by considerations of order in
the home or by the particular circumstances of the young
person concerned. To this end the person in charge of the
care at the home may open and examine mail arriving for or
sent by the young person. If incoming mail contains any
material which the young person is not allowed to possess, it
shall be sequestrated.
Correspondence between the young person and a Swedish
authority or advokat or his official counsel shall be
transmitted without prior scrutiny."
54. Section 16 of the 1980 Act provided:
"If it is necessary in order to achieve the purposes of care
measures taken under this Act, the Social Council may
1. decide how the right of access to the young person shall
be exercised by a parent or other person who has custody of
him, or
2. decide that the young person's place of residence may not
be disclosed to the parent or custodian."
55. The preparatory work to this provision, as reproduced in
Government Bill (1979/80:1, Part A, p. 601), contains the following
statement:
"The Social Council should, when carrying out the care, as
far as possible co-operate with the parents and assist in
maintaining contacts between the parents and the child ... a
care decision should not give rise to other restrictions of
the parents' right of access to the child than those which
are necessary in order to carry out the care. The
circumstances might, however, be such that the parents during
the care period should not meet the child. There might for
example be a risk that the parents interfere with the care
without authorisation. The parents' personal circumstances
might also, for instance by reason of severe abuse [of
alcohol or drugs] or mental illness, be such that they should
not meet the child at all ... . The proposed provisions
concerning restrictions on the right of access should be
applied restrictively. [The Social Council] should, only in
exceptional cases, refuse to disclose the child's place of
residence to the parents."
56. The Standing Social Committee of the Parliament stated in its
report (Statens offentliga utrednigar - "SOU" 1979/80:44, p. 116)
that the Social Council had in principle responsibility for all
decisions concerning visits to the child. This was inherent in its
general powers to decide on the child's conditions during care. It
stated however that parents enjoyed a special right of access to the
child and that it was important that they maintain regular contact.
The Committee added that:
"the circumstances may, however, be such that the
parents during a certain time or until further notice
should not meet the child."
57. According to a guide on the 1980 Act (1981:2, p. 112) issued
by the National Board of Health and Social Welfare, the Social
Council was empowered under section 16 to restrict and terminate
completely the parents' access to the child.
58. There exists to date no judgment by the Supreme
Administrative Court concerning the application of section 16 of the
1980 Act on telephone conversations and correspondence. It has,
however, delivered one judgment in 1971, reported in its yearbook
(Regeringsrättens Årsbok, RÅ 1971,p. 283), relating to the
corresponding provision in the 1960 Child Welfare Act
(barnavårdslagen 1960:97, which was replaced by the 1980 Act). In
this case the Supreme Administrative Court unanimously rejected an
appeal against a prohibition of access for one year covering both
visits and telephone conversations. Appeals to the Supreme
Administrative Court were at the time not subject to leave to appeal
(see paragraph 64 below) and thus the appeal in question was
rejected on the merits. The judgment did not specify the reasons
for this rejection. As explained by the Government, this is in
keeping with the Supreme Administrative Court's practice and means
that the court accepted the reasons and conclusions of the lower
court.
The above-mentioned judgment was briefly reported in the said
yearbook as a so-called notisfall - which designates a category of
decisions which, according to the Government, do not have the
standing of clear precedents but may still have relevance in the
determination of legal issues.
59. The Government have cited to the Court four more cases.
In the first case, the Administrative Court of Appeal in
Sundsvall, by judgment of 5 July 1982, amended a prohibition of
telephone contacts so as to allow a mother to call her daughter
directly once every second week, rather than once a week through a
social welfare officer. The prohibition was applied together with
restrictions on meetings. Neither this judgment nor that of the
lower court specified which provision in the 1980 Act had been
applied.
In the second case, the said Administrative Court of Appeal,
by judgment of 15 June 1987, confirmed, referring to section 16 of
the 1980 Act, a prohibition of a mother to meet her son, for a
period of two years, and to contact him by telephone. There is no
indication that the lawfulness of the prohibition was disputed by
the mother or questioned by the court.
In the third case, the Administrative Court of Appeal in
Stockholm, by judgment of 20 March 1991, upheld measures limiting a
father's contact with his daugher to one telephone conversation
every Sunday between 5 and 6 p.m. On 24 May 1991 the Supreme
Administrative Court dismissed the father's application for leave to
appeal. This case was decided on the basis of section 14 of the
1990 Act, which had replaced section 16 of the 1980 Act (see
paragraphs 65-66 below).
In the fourth case, the County Administrative Court at
Gothenburg, by a judgment of 3 October 1990, rejected, with
reference to section 14 of the 1990 Act, an appeal against
restrictions on a mother's access to and telephone contact with her
son. She was permitted to call him twice a week, not later than
5 p.m. The lawfulness of the restrictions was disputed. However,
the court held that "according to applicable case-law, telephone
contact was considered on an equality with access (`umgänge') under
section 14". This judgment was upheld by the Administrative Court
of Appeal in Gothenburg on 11 January 1991. The Supreme
Administrative Court granted leave to appeal on 23 July 1991 and is
expected to deliver a judgment in the case in the spring of 1992.
60. Since 1972 there has existed in Sweden a computerised data
register, which is accessible to the public, containing information
on judgments of the Supreme Administrative Court and the four
Administrative Courts of Appeal. It includes, inter alia, an
indication of the nature of the case and a brief description of the
issues raised, as well as the names of the court and of the parties
and the date of the judgment. The rules governing the register
have, from time to time, undergone amendments, none of which is
relevant for the present case. Their current version is to be found
in the 1990 Regulations on Registration and Statistics of Cases
before the Supreme Administrative Court, the Supreme Social
Insurance Court and the Administrative Courts of Appeal
(Föreskrifter om dagbokföring och statistikregistrering i mål i
regeringsrätten, försäkringsöverdomstolen och kammarrätterna, DVFS
1990:25, B1), adopted by the National Courts Administration
(domstolsverket) on 11 December 1990, with effect from
1 January 1991.
C. Appeals
61. Decisions of the County Administrative Court that a child be
taken into care under the 1980 Act could have been the subject of an
appeal to the Administrative Court of Appeal and, with leave, to the
Supreme Administrative Court.
62. An appeal lay to the County Administrative Court (and then to
the Administrative Court of Appeal and, with leave, to the Supreme
Administrative Court) against:
(a) refusals by a Social Council to terminate care ordered
under the 1980 Act;
(b) decisions taken by a Social Council under the 1980 Act as
to where the care should commence; to move a child from a home where
he lives; regulating the right of access under section 16; and not
to disclose the child's whereabouts to the parent or the custodian
(section 20 of the 1980 Act).
63. The child was in principle a party to such proceedings, but
had to have attained the age of 15 in order to have the capacity to
conduct proceedings before the courts himself (processbehörighet).
Otherwise this capacity was vested with the child's legal guardian
(SOU 1987:7, pp. 66-70). Pursuant to section 19 of the 1980 Act, a
child below the age of 15 should have been heard if it could have
been useful for the investigation and it was not presumed to be
harmful to him or her.
64. An appeal to the Supreme Administrative Court is subject to
leave to appeal. Such leave is, pursuant to section 36 of the
Administrative Procedure Act 1971 (förvaltningsprocesslagen
1971:291), granted in the following circumstances:
"1. if review by the Supreme Administrative Court is of
importance in providing guidance on the interpretation of the
law; or
2. if there are special reasons which militate for such
review, such as the existence of a ground for reopening of
the proceedings or of a gross oversight or error which has
clearly affected the outcome of the case in the
administrative court of appeal."
D. New legislation
65. As of 1 July 1990 - and therefore after the facts of the
present case - the 1980 Act was replaced by a new Act containing
Special Provisions on the Care of Young Persons 1990 (lagen 1990:52
med särskilda bestämmelser om vård av unga - "the 1990 Act") which
entail certain amendments and additions to the 1980 Act.
66. The provisions of the 1990 Act corresponding to those of the
1980 Act mentioned above are essentially the same. However,
section 14 of the 1990 Act, which replaces section 16 (see
paragraph 54 above) of the 1980 Act, is worded as follows:
"The Social Council is responsible for accommodating as far
as possible the young person's needs of contact with his
parents or any person who has custody of him.
If it is necessary in order to achieve the purposes of care
measures taken under this Act, the Social Council may
1. decide how the right of access to the young person shall
be exercised by a parent or other person who has custody of
him, or
2. decide that the young person's place of residence may not
be disclosed to the parent or custodian.
The Social Council shall reconsider at least once every three
months whether such decision as referred to in the second
paragraph continues to be needed."
PROCEEDINGS BEFORE THE COMMISSION
67. In their application of 13 February 1987 to the Commission
(no. 12963/87), Margareta and Roger Andersson raised a number of
complaints relating to the taking of Roger into public care, the
maintenance in force of the care order, his placement in a foster
home and the restrictions imposed on their access to each other,
including communications by correspondence and telephone. They
alleged breaches of Article 8 (art. 8) of the Convention. They also
complained about the absence of an effective remedy within the
meaning of Article 13 (art. 13) with regard to the restrictions on
access. Roger, in addition, invoked Articles 2, 3, 4, 9 and 10
(art. 2, art. 3, art. 4, art. 9, art. 10) and claimed that, contrary
to Article 25 (art. 25) of the Convention, the exercise of his right
to petition to the Commission had been hindered.
68. On 10 October 1989 the Commission declared admissible the
complaints relating to the prohibition of access, including
communications by correspondence and telephone (Article 8) (art. 8)
and the absence of an effective remedy (Article 13) (art. 13), but
decided to take no action with respect to the complaints under
Article 25 (art. 25) and to declare all other complaints
inadmissible.
In its report adopted on 3 October 1990 (Article 31)
(art. 31), the Commission expressed the opinion that there had been
a violation of Article 8 (art. 8) (unanimously), but no violation of
Article 13 (art. 13) with regard to Margareta Andersson
(unanimously), or with regard to Roger Andersson (by ten votes to
two). The full text of the Commission's opinion and the dissenting
opinion contained in the report is reproduced as an annex to the
present judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 226-A
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
69. At the hearing on 26 August 1991, the Government confirmed
the final submission in their memorial inviting the Court to find
"that there has been no violation of the Convention in the present
case".
AS TO THE LAW
I. SCOPE OF THE CASE
70. At the Court's hearing, the applicants raised a variety of
matters regarding inter alia the Swedish educational system, Roger's
school problems and the situation in the foster home. However, the
case, as delimited by the Commission's decision on admissibility,
concerns only their complaints against the restrictions on access to
each other, including communication by correspondence and telephone,
during the period from 6 August 1986 to 27 April 1988, and the
absence of an effective remedy in respect of those restrictions.
II. ALLEGED VIOLATIONS OF ARTICLE 8 (art. 8)
A. Introduction
71. Margareta and Roger Andersson alleged that the restrictions
on access, including restrictions on communication by correspondence
and telephone, had given rise to violations of 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 or morals, or for the
protection of the rights and freedoms of others."
This allegation was contested by the Government, but was
accepted by the Commission.
72. The mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life, and the
natural family relationship is not terminated by reason of the fact
that the child is taken into public care (see, as the most recent
authority, the Eriksson v. Sweden judgment of 22 June 1989, Series A
no. 156, p. 24, para. 58). Moreover, telephone conversations between
family members are covered by the notions of "family life" and
"correspondence" within the meaning of Article 8 (art. 8) (see the
Klass and Others v. the Federal Republic of Germany judgment of
6 September 1978, Series A no. 28, p. 21, para. 41, and the Kruslin v.
France judgment of 24 April 1990, Series A no. 176-A, p. 20, para. 26).
It follows - and this was not contested by the Government - that the
measures at issue amounted to interferences with the applicants'
right to respect for their family life and correspondence.
73. Such interferences constitute a violation of Article 8
(art. 8) unless they were "in accordance with the law", had an aim
or aims that is or are legitimate under Article 8 para. 2 (art. 8-2) and
were "necessary in a democratic society" for the aforesaid aim or
aims (see the above-mentioned Eriksson judgment, Series A no. 156,
p. 24, para. 58).
B. "In accordance with the law"
74. The applicants contended that the limitations placed on
access were not "in accordance with the law". The Government
contested this claim, whereas the Commission agreed in so far as it
concerned the restrictions imposed on telephone communications and
correspondence.
75. The Court recalls that the expression "in accordance with the
law", within the meaning of Article 8 para. 2 (art. 8-2), requires
firstly that the impugned measures should have a basis in domestic
law. It also refers to the quality of the law in question,
requiring that it be accessible to the persons concerned and
formulated with sufficient precision to enable them - if need be,
with appropriate advice - to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may
entail. A law which confers a discretion is not in itself
inconsistent with this requirement, provided that the scope of the
discretion and the manner of its exercise are indicated with
sufficient clarity, having regard to the legitimate aim in question,
to give the individual adequate protection against arbitrary
interference (see, amongst many other authorities, the above-
mentioned Kruslin judgment, Series A no. 176-A, pp. 20-23, paras. 27, 29
and 30).
76. The dispute in the present case concerns the question whether
the limitations on access, including communication by telephone and
correspondence, had a basis in Swedish law and were foreseeable.
1. Limitations on meetings
77. The applicants pointed out that they had been authorised to
meet only a few times during the period between August 1986 and
May 1987 and that the social welfare authorities had been given too
wide a discretion in this respect which they had exercised
arbitrarily. Even after the Social Committee's decision of
14 May 1987 (see paragraph 38 above), it had been unclear when and
how meetings were to be arranged. They claimed that this amounted
to a total prohibition of access, which lasted for almost one year
and which was both contrary to Swedish law and unforeseeable.
78. The Court observes that, as stated in the social welfare
authorities' decisions of 6 and 21 August 1986, a prohibition of
access was to apply until further notice and until "suitable access
could be arranged without involving harm to the child" (see
paragraphs 16 and 19 above). The applicants were allowed to meet on
5 October 1986. Subsequent to this, several meetings were held
throughout the care period. Admittedly the meetings took place with
a certain irregularity and often after lengthy intervals. However,
this is at least partly attributable to Margareta Andersson's
unwillingness to accept the terms for meetings or to take part in
their planning as proposed by the social welfare authorities (see
paragraphs 20, 21 and 24 above). The Court therefore shares the
view of the Government and the Commission that a total prohibition
of access was only in force for a period of approximately two
months, from 6 August 1986, when the Assistant District Chief
decided to prohibit access, until 5 October 1986, when the first
meeting was held between the applicants (see paragraphs 16 and 20
above).
79. Although the wording of section 16(1) may suggest that the
Social Council was empowered to regulate, but not to prohibit,
access, it was clearly stated in the preparatory work to this
provision that a prohibition of access could, if required by the
circumstances, be imposed for a certain period or until further
notice (see paragraph 56 above). Moreover, it follows from
decisions of Swedish administrative courts that a temporary
prohibition of access could be based on section 16 (see
paragraphs 34, 58 and 59 above). Such a prohibition could,
according to this provision, be imposed only to the extent that it
was necessary in order to fulfil the object of the care measures.
Furthermore, as expressed in the relevant preparatory work,
limitations on access under section 16 should be applied
restrictively and the Social Council should as far as possible co-
operate with the parents and assist in maintaining contact between
them and the child (see paragraph 55 above).
2. Limitations on communication by telephone
and correspondence
80. According to both the applicants and the Commission, it was
not clear that the social welfare authorities were permitted under
Swedish law to extend a restriction on access to cover
communications by correspondence and telephone. They pointed out
that the rationale for regulating meetings was different from that
for limiting contacts by telephone or mail. Limitations of this
kind were not expressly provided for by section 16 of the 1980 Act
nor mentioned in the preparatory work to this section. There was no
support in the corresponding rules of the Parental Code for the view
that the expression rätt till umgänge, as understood in Swedish,
referred to contact by mail or telephone. Moreover, whilst
section 15 of the 1980 Act, which was not applicable in the present
case, expressly authorised scrutiny of correspondence, section 16
did not.
81. The Delegate of the Commission did not accept that any
specific conclusion could be drawn from the case-law cited to the
Court by the Government as to whether the limitations on
correspondence and telephone communication had a basis in Swedish
law. First, he recalled that the Supreme Administrative Court's
1971 judgment contained no reasons for its rejection of the appeal
in question; the issue of the legality of the restrictions was not
raised and the court did not even indicate upon which provision the
restrictions were based (see paragraph 58 above). Moreover, the
Supreme Administrative Court's refusals to grant leave to appeal in
the present case did not constitute a legal precedent and did not
contain any reasons (see paragraphs 36 and 41 above). With regard
to the two decisions of the Sundsvall Administrative Court of Appeal
(see paragraph 59 above) the Delegate considered that these were of
little importance as they had not been decided by the highest court
and had not been published. In addition, he referred to a third
decision in which the Sundsvall court in 1983 had relied on
section 11, as opposed to section 16, thereby indicating an
inconsistency in its practice. The limitations, therefore, did not
have a clear basis in Swedish law and were not foreseeable.
82. In the present case, the contested limitations on
communications by correspondence and telephone had on two separate
occasions been upheld by the Administrative Court of Appeal under
section 16 of the 1980 Act. On each occasion, the Supreme
Administrative Court had subsequently refused leave to appeal (see
paragraphs 36, 41 and 64 above).
Furthermore, as appears from its public files, in doing so it
had taken into account its above-mentioned 1971 judgment. By that
judgment, the court rejected an appeal concerning a one-year
prohibition of access and telephone communications between a parent
and a child, after having examined the case on the merits. It
cannot be assumed that in the present case the Supreme
Administrative Court failed to consider whether the prohibition was
lawful. Clearly, that court accepted the lower court's reasoning
and conclusions (see paragraph 58 above).
The cases referred to by the Government, other than the
present instance, all concerned restrictions on access including
telephone communications (see paragraphs 58-59 above). None of
these decisions had set aside such restrictions as being unlawful.
It is true that only some of them pre-dated the judgments in the
instant case but those which followed are in principle capable of
illustrating the previous understanding of the law. All appellate
administrative courts' judgments are computerised in Sweden since
1972 (see paragraph 60 above).
In this regard, it is primarily for the national authorities,
notably the courts, to interpret and apply domestic law (see,
amongst many authorities, the above-mentioned Kruslin judgment,
Series A no. 176-A, pp. 21-22, para. 29).
83. In its report, the Commission further considered that the
"uncertainty" as to the contents of the law was combined with a lack
of clarity as to the scope of the social welfare authorities'
decisions of 6 and 21 August 1986 to prohibit access under
section 16, as these did not specify that the prohibition covered
telephone communications and correspondence (see paragraphs 16 and
19 above). In their view, this lack of clarity persisted during the
subsequent court proceedings, firstly because the County
Administrative Court's judgment had referred to telephone
conversations but had not mentioned correspondence and, secondly,
because this court and the Administrative Court of Appeal had
interpreted the legal situation differently, the former having
relied on section 11, the latter on section 16 (see paragraphs 34-35
above). In the submission of the Delegate, a decision restricting
fundamental rights should, as a minimum requirement, indicate
clearly the extent of the restriction.
84. The Court observes that, in this respect, it should not be
overlooked that the Social Committee's decision of 21 August 1986
was based on the social welfare officer's report of 15 August 1986
(see paragraph 17 above). This report recommended that Margareta
Andersson should be temporarily prevented from having "any form of
contact with Roger". There is little doubt, therefore, that the
prohibition imposed under section 16 was meant to cover not only
visits, but also communications by telephone and correspondence.
This is confirmed by the Social Council's submissions before the
County Administrative Court at its hearing on 11 September 1986 and
by the very words of the Administrative Court of Appeal's judgment
of 11 November 1986 (see paragraphs 34-35 above).
85. In sum, the contested limitations on access, including
communication by telephone and correspondence, were "in accordance
with the law" within the meaning of Article 8 para. 2 (art. 8-2).
C. Legitimate aim
86. The applicants claimed that the restrictions were not aimed
at finding a solution to Roger's school problems or at protecting
his health, but rather at preventing him from telling others about
the "terrible" living conditions in the foster home.
87. In the Court's view, the relevant Swedish law was clearly
aimed at protecting "health or morals" and "the rights and freedoms"
of children. There is nothing to suggest that it was applied for
any other purpose in the present case.
D. "Necessary in a democratic society"
88. The applicants alleged that the measures at issue could not
be regarded as "necessary in a democratic society". They argued
that they had not been allowed to meet often enough and that the few
meetings which were held had been supervised in a manner which
prevented them from enjoying any form of "family life". For the
same reason they criticised the limitations imposed on their right
to communicate with each other by way of telephone and
correspondence. A number of letters addressed to Roger by his
mother had been stopped by hospital personnel and the foster father.
The latter had moreover prevented him from sending letters to his
mother and from using the telephone. These measures, the applicants
contended, had not only been unnecessary for the purposes of Roger's
care but had, in fact, endangered his health. They had resulted in
his having to wait for two months before receiving medical treatment
for his diabetes. Further, as concluded by Dr Åberg in a medical
opinion submitted by the applicants, it was likely that the
emotional stress which Roger had suffered as a result of being
totally separated from his mother had contributed in a tangible and
even decisive way to his falling ill with diabetes.
89. In the Government's submission, the measures were "necessary
in a democratic society".
They relied on the reasons expounded in the above-mentioned
report of 15 August 1986 - which was the basis for the decision of
21 August 1986 to prohibit access - and on the relevant
administrative courts' judgments upholding the measures (see
paragraphs 17, 34-36, 39-41 and 44 above). They also referred to
the reasons for the prohibition of access of June 1985 (see
paragraphs 10-11 above). In addition, the measures fell to be
examined in the light of the justifications for the care order and
its maintenance in force throughout the period in question, since
the Commission had accepted the compatibility of that order with the
Convention and all the subsequent administrative and judicial
decisions concerning the prohibition of access were based
essentially on the same facts (see paragraphs 12, 15, 65 and 66
above).
As a justification for the stopping of letters, they argued
in particular that Margareta Andersson's attitude to the public care
of Roger and the foster home could obstruct the objective of the
care measures, including the efforts to create a trustful
relationship between him and the foster family, since her way of
explaining the situation to Roger worried and upset him. As a
12 year-old, he had no possibility of understanding on whom he could
rely in such a situation.
With regard to the applicants' contention that the measures
in issue had played a role in Roger's falling ill with diabetes, the
Government invoked a medical opinion by the National Board of Health
and Welfare. This concluded that emotional stress may be one out of
many contributing factors to the development of insulin-dependent
diabetes; however the quantitative significance of such stress had
been greatly exaggerated in the medical opinion submitted by the
applicants.
90. The Commission did not express any opinion on the "necessity"
issue, in view of its conclusion that the restrictions on
communication by correspondence and telephone were not "in
accordance with the law".
91. The Court recalls that in cases like the present a parent's
and child's right to respect for family life under Article 8
(art. 8) includes a right to the taking of measures with a view to
their being reunited (see the Olsson v. Sweden judgment of
24 March 1988, Series A no. 130, pp. 36-37, para. 81, and the
above-mentioned Eriksson judgment, Series A no. 156, pp. 26-27,
para. 71).
92. Prior to their decisions of 6 and 21 August 1986 to prohibit
access, the social welfare authorities had failed in their efforts
to implement the care measures both within and outside
Margareta Andersson's home. Shortly after being placed in the
Clinic in June 1985, Roger had escaped with the assistance of his
mother. The social welfare authorities had then consented to
implement the care measures in her home. However, since this had
proved unsuccessful, Roger had been returned to the Clinic with a
view to placement in a foster home. Again with his mother's
involvement, he escaped to join her. The police had brought him
back to the Clinic where he spent a brief period before being
transferred to the foster home. Moreover, it should be noted that
Margareta Andersson had indicated to the social welfare authorities
her intention of moving to an unknown address or of leaving the
country in order to avoid being "persecuted". She had also exerted
a negative influence on Roger during her visits to the Clinic (see
paragraphs 13, 14 and 17 above).
93. The prohibition of access was, as stated in the decisions of
6 and 21 August 1986, to be effected temporarily until access could
be arranged without harm to Roger. Relatively soon, at the latest
on 11 September 1986 (see paragraph 34 above), the Social Council
announced its intention to hold a meeting between the applicants at
the end of September or the beginning of October. In fact it took
place on 5 October. After this meeting Roger attempted to run away
from the foster home.
It is true that subsequent meetings were held with some
irregularity and often at rather long intervals, but this was partly
due to Margareta Andersson's own attitude. It is also true that the
meetings were closely supervised. However, as from June 1987, the
conditions for meetings were somewhat relaxed in this respect and,
in November that year, Roger was permitted to visit Margareta
Andersson in her own home. The Social Committee decided in February
1988 to arrange such visits on a monthly basis and to organise other
meetings in between at the Helgesson home - at least twice a month,
according to a court ruling of 17 February. Since Roger was
hospitalised, they met instead at the hospital where Margareta
Andersson was permitted to stay overnight. She stayed there for
approximately two weeks altogether during the period between
26 February and 3 May 1988 (see paragraphs 20-27 above).
94. Admittedly, the deterioration of Roger's health must, at
least to some extent, have been related to emotional stress.
However, it has not been established that the deterioration was
caused by the various limitations on access.
95. In the circumstances of the case the restrictions on meetings
between the applicants should however be considered in the broader
context of the restrictions on access as a whole. Indeed, besides
the fact that the applicants' right to visits was severely
restricted, they were also prohibited from having any contact by
mail or telephone during the period from 6 August 1986 to
5 February 1988. As of the latter date, the prohibition was
revoked, except that it was for Roger to take the initiative of
telephone communications. In the Court's view the measures relating
to this period were particularly far-reaching. They had to be
supported by strong reasons and to be consistent with the ultimate
aim of reuniting the Andersson family, in order to be justified
under Article 8 para. 2 (art. 8-2).
96. The reasons adduced by the Government are of a general nature
and do not specifically address the necessity of prohibiting contact
by correspondence and telephone. The Court does not doubt that
these reasons were relevant. However, they do not sufficiently show
that it was necessary to deprive the applicants of almost every
means of maintaining contact with each other for a period of
approximately one and a half years. Indeed, it is questionable
whether the measures were compatible with the aim of reuniting the
applicants.
97. Having regard to all the circumstances of the case, the Court
considers that the aggregate of the restrictions imposed by the
social welfare authorities on meetings and communications by
correspondence and telephone between the applicants was
disproportionate to the legitimate aims pursued and, therefore, not
"necessary in a democratic society". There has accordingly been a
breach of Article 8 (art. 8).
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
98. Article 13 (art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity."
Before the Commission, both Margareta and Roger Andersson
submitted that, in breach of this provision, they had no effective
remedy in respect of their claims under Article 8 (art. 8). The
Government contested this view, which the Commission rejected.
99. At the hearing before the Court on 26 August 1991, counsel
for the applicants did not pursue the claim under Article 13
(art. 13) in respect of Margareta Andersson. The Court finds that
it is not necessary to examine this part of the complaint.
100. The lawyer of the applicants submitted that she subscribed to
the opinion of the minority of the Commission concluding that there
was a breach in respect of Roger Andersson.
101. The dispute before the Court thus concerns whether Roger's
legal guardian, Margareta Andersson, had been prevented from
appealing to the Swedish courts on his behalf. It was common ground
that Article 13 (art. 13) did not require that a 12 year-old child
be able to institute and conduct such proceedings on his own; it was
sufficient for the purposes of this provision that a legal
representative was able to do so on the child's behalf. It is not
in dispute that this was possible under Swedish law and that the
official counsel appointed to assist Roger in proceedings concerning
the care measures (see paragraphs 39, 40 and 44 above) had no power
to initiate court proceedings on his behalf.
102. The applicants considered that since Margareta Andersson had
no means of communicating with Roger, she was not in a position to
learn of any possible infringement of his human rights and was
therefore prevented from representing him properly.
103. The Court is not convinced by this argument. It should be
recalled that during the relevant period Roger and his mother met on
a number of occasions (see paragraphs 20-27 above) and were on good
terms. Consequently, it cannot be said that Margareta Andersson was
prevented from appealing on Roger's behalf against the restrictions
on access.
104. There was therefore no violation of Article 13 (art. 13).
IV. APPLICATION OF ARTICLE 50 (art. 50)
105. Article 50 (art. 50) of the Convention reads:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
106. Under this provision Margareta and Roger Andersson sought
first 1,000,000 and 2,000,000 Swedish kronor, respectively. At the
hearing their representative explained that Margareta Andersson's
claim was based on the distress which she had experienced as a
result of her separation from Roger and the restrictions on
contacting him; the main ground for Roger's claim was that he had
contracted diabetes as a consequence of stress caused by the
measures in issue (see paragraph 88 above).
Both the Government and the Delegate of the Commission found
the claims excessive.
107. In the Court's view, as mentioned above, the evidence
submitted does not warrant the conclusion that Roger's illness
resulted from the various restrictions on access (see paragraph 94
above). However, there can be no doubt that the measures found to
be in breach of Article 8 (art. 8) caused the applicants
considerable anxiety and distress.
This being so, the Court awards, on an equitable basis, as
required by Article 50 (art. 50), each applicant the sum of
50,000 kronor.
B. Legal fees and expenses
108. The applicants' original claim for legal fees and expenses,
totalling 325,000 Swedish kronor, included the following items:
(a) 319,800 kronor for 206 hours' work by their lawyer
(at 1,300 kronor per hour) in the proceedings before the Commission
and the Court and for 40 hours' travel - "loss of working time" -
(at the same rate) to appear at two hearings in Strasbourg;
(b) 5,200 kronor to cover the work of a translator checking the
English of their lawyer's oral pleadings before the Court.
However, the applicants' lawyer stated at the hearing that
she had underestimated the time spent on preparing her pleadings
before the Court; the effective working time had in fact been
250 hours. She maintained, nevertheless, that her fees would be
325,000 Swedish kronor.
109. The Government accepted item (b) but made several objections
concerning item (a). They questioned whether the amount of working
time spent was necessary. The hourly rate charged was too high and
should be lower for travelling time than working time. Regard
should also be had to the fact that substantial parts of the
applicants' claims had been declared inadmissible by the Commission.
110. Taking account of the Court's case-law in this field as well
as the relevant legal aid payments made by the Council of Europe,
and making an assessment on an equitable basis, the Court considers
that the applicants are jointly entitled to be reimbursed, for legal
fees and expenses, the sum of 125,000 Swedish kronor.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been a violation
of Article 8 (art. 8);
2. Holds unanimously that it is not necessary to examine the
complaints under Article 13 (art. 13) with regard to
Margareta Andersson;
3. Holds by five votes to four that there has been no violation
of Article 13 (art. 13) with regard to Roger Andersson;
4. Holds unanimously that Sweden is to pay, within three months:
- to each of the applicants 50,000 (fifty thousand) Swedish
kronor for non-pecuniary damage;
- to the applicants jointly 125,000 (one hundred and
twenty-five thousand) Swedish kronor for legal fees and
expenses;
5. Rejects unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
25 February 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr Lagergren;
(b) partly dissenting opinion of Mr De Meyer, joined by
Mr Pinheiro Farinha, Mr Pettiti and Mr Spielmann.
Initialled: R.R.
Initialled: M.A.E.
PARTLY DISSENTING OPINION OF JUDGE LAGERGREN
Whilst otherwise agreeing with the majority of the Court, I
am unable to share its opinion that the temporary restrictions on
access, including telephone communication and correspondence, were
in violation of Article 8 (art. 8).
The difference of opinion separating me from my colleagues
concerns the necessity of the interferences in question and the
margin of appreciation which in this context is to be allowed to the
national authorities.
Judge Macdonald has stated: "The margin of appreciation is at
the heart of virtually all major cases that come before the Court,
whether the judgments refer to it expressly or not." (Ronald St.
John Macdonald: "The margin of appreciation in the jurisprudence of
the European Court of Human Rights", Essays in Honour of Roberto
Ago, III, 1987, at p. 208.)
A decade ago Sir Humphrey Waldock similarly stressed the
significance of the doctrine of the margin of appreciation in his
often cited sentence, that this doctrine "is one of the more
important safeguards developed by the Commission and the Court to
reconcile the effective operation of the Convention with the
sovereign powers and responsibilities of governments in a
democracy." (Human Rights Law Journal 1980, at p. 9). This
endorsement by one of the great jurists of our time of judicial
self-restraint is certainly still valid in the present European
situation.
It is nowadays a well-established view within the Commission
and the Court that the primary responsibility for securing the
rights and freedoms enshrined in the Convention lies with the
individual Contracting States and "that it is in no way the Court's
task to take the place of the competent national courts but rather
to review under [the Convention] the decisions they [deliver] in the
exercise of their power of appreciation" (Handyside v. the United
Kingdom judgment of 7 December 1976, Series A no. 24, pp. 23-24,
para. 50). The Strasbourg institutions have also recognised that, in
principle, the domestic authorities are, by reason of their "direct
and continuous contact with the vital forces of their countries", in
a better position than the international judge to determine whether
the Convention rights or equivalent domestic legal norms have been
overstepped (see, ibid., para. 48).
The full implications of the available margin will be
difficult to draw until a larger and more coherent body of law
emerges. However, a basic formulation is to be found in the case of
Rasmussen v. Denmark: "The scope of the margin of appreciation will
vary according to the circumstances, the subject matter and its
background" (judgment of 28 November 1984, Series A no. 87, p. 15,
para. 40; cf. Macdonald, op. cit., at p. 206).
One crucial difficulty in the present case is the necessity
to make a delicate assessment related to a given moment and in a
national context of complex psychological factors and to arrive at
valid impressions of personalities and human relations. Another
difficulty is to balance conflicting private interests and public
obligations.
Since the rationale for the doctrine of margin of
appreciation is that national authorities are deemed to be in a
better position than the international judge to determine whether
interferences with defined human rights are "strictly required", it
is useful in this case to compare the proceedings before the Swedish
courts and the proceedings before the Strasbourg Court - in the
manner in which they actually occurred.
From the decision of the Chairman of the Social Committee
no. 1 of the Social Council at Växjö on 5 June 1985 until the last
decision maintaining the care order (the County Administrative
Court's judgment of 17 February 1988), the case of Margareta and
Roger Andersson, in a unique sequence of proceedings, came six times
before the County Administrative Court, three times before the
Administrative Court of Appeal and three times before the Supreme
Administrative Court. The representative of the Government stated
at the hearing before the Strasbourg Court that the decisions of the
Swedish courts were unanimous. Oral proceedings were regularly held
before the two instances of first and second degree. On most
occasions, Margareta Andersson was present and examined by the
County Administrative Court and the Administrative Court of Appeal.
She was assisted by counsel under the Legal Aid Act
(rättshjälpslagen), while Roger was represented by official counsel
(offentligt biträde). Social welfare officers represented the
Social Council. Two witnesses testified before the County
Administrative Court, which also heard as expert witness, in two
different proceedings, the Deputy Chief Doctor of the Children's and
Juveniles' Psychiatric Clinic at Växjö.
Margareta Andersson attended the short hearing before the
Strasbourg Court, but she remained silent. Thus, the Court did not
have the benefit of listening directly, as the "principle of
immediacy" requires, to statements by Margareta Andersson herself,
nor did the Court hear statements of social welfare officers or
testimony of witnesses.
In this respect, the representative of the Government stated
before the Court that if the facts upon which the judgments of the
national courts and the decisions of the social authorities were
based and the necessity of the interference were questioned, it was
the Government's view that witnesses should also testify before the
Strasbourg Court. Testimony by the social welfare officers and the
foster parents might be necessary in such a case. It would be a
very serious thing to disregard the decisions in question without
having access to such direct information.
In view of the procedural situation and with regard to the
nature and complexity of the factual issues to be decided in the
present case, the national authorities are, in my opinion, entitled
to a wide margin of appreciation. In this context, reference should
be made to the Brandstetter v. Austria judgment in which the Court
held: "According to [the Court's] case-law, it is, as a rule, for
the national courts to assess the evidence before them" (judgment of
28 August 1991, Series A no. 211, p. 23, para. 52). A similar approach
is to be found in the markt intern Verlag GmbH and Klaus Beermann
judgment: "... the European Court of Human Rights should not
substitute its own evaluation for that of the national courts in the
instant case, where those courts, on reasonable grounds, had
considered the restrictions to be necessary" (judgment of
20 November 1989, Series A no. 165, p. 21, para. 37).
The situation was different in the Olsson case, concerning,
inter alia, the implementation of care decisions in respect of the
three Olsson children. There the crucial point of fact was not
disputed, i.e. that Helena and Thomas were placed at a great
distance from their parents and from Stefan. From these facts the
Court concluded that the very placement of the children adversely
affected the possibility of contacts, in a manner inconsistent with
the ultimate aim of reuniting the Olsson family (Olsson v. Sweden
judgment of 24 March 1988, Series A no. 130, pp. 36-37, para. 81).
The representative of the Government stressed throughout the
Strasbourg proceedings that although the Swedish decisions imposed
prohibitions on access, including contact by telephone and
correspondence, such prohibitions were not as categorical as it may
appear. The social welfare authorities could always "allow visits
or other forms of contacts to the extent it [was] deemed possible
without risking the purpose of the care or without risking harm to
the child's welfare". (See, also, paragraph 44 of the judgment).
Specifically, as to the restrictions on communication by
correspondence and telephone, the following statements by the
representative of the Government before the Commission are of a
certain relevance: "Mrs Andersson always had the possibility of
talking to the foster parents and to the extra foster home and also
to Roger's teacher so as to keep herself informed about Roger's
health and development. She also made use of the possibility and
often talked to the foster parents, as well as the extra foster
parents ... To what extent it has been possible for Roger to
contact his mother by phone is not known for certain to the
Government" (verbatim record of hearing on 10 October 1989, p. 8;
see, also, paragraph 28 of the judgment). Indeed, the effect of the
restrictions on communications in this particular case are difficult
to measure, since there must have been several easy ways of avoiding
such restrictions.
Since the reasons for the care decisions and those for the
restrictions on access, including telephone communication and
correspondence, are to a great extent similar, it should not be
overlooked that the Commission declared the complaints related to
the care decisions inadmissible as being manifestly ill-founded (see
paragraph 90 of the judgment). On the merits of the case, the
Commission never reached any decision on the necessity of the
restrictions on access and on telephone communication and
correspondence.
In the light of the considerations set out above, and since
there is no reason to doubt that the Swedish courts exercised their
discretion carefully and in good faith and on the basis of an
adequate knowledge of the facts, I am not prepared to find that the
temporary restrictions on access, including telephone communication
and correspondence, imposed by the national authorities in their
privileged position, overstepped the limits of what might be deemed
necessary in a democratic society within the meaning of
Article 8 para. 2 (art. 8-2).
I therefore consider that no violation of the requirements of
Article 8 (art. 8) has been established.
PARTLY DISSENTING OPINION OF JUDGE DE MEYER, JOINED BY
JUDGES PINHEIRO FARINHA, PETITTI AND SPIELMANN
(Translation)
In our opinion, the present case gave rise to a breach of
Article 13 (art. 13) of the Convention in respect of Roger
Andersson.
As a result of the prohibition on the applicants from having
access to each other, the child's entitlement to be represented by
his mother could not be effectively used with a view to exercising
the right to a remedy guaranteed by this provision.
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