Hudoc reference REF00000133 Document type Judgment (Merits and just satisfaction) Title OLSSON CASE Application number 00010465/83 Date 24/03/1988 Respondent Sweden Conclusion Preliminary objection rejected (non-exhaustion) ; Violation of Art. 8 ; Non-pecuniary damage - financial award ; Costs and expenses award - domestic proceedings ; Costs and expenses award - Convention proceedings Published in A130 Keywords Exhaustion of domestic remedies ; Respect for family life ; Prescribed by law ; Protection of health ; Protection of morals ; Protection of the rights and freedoms of others ; Necessary in a democratic society ; Inhuman treatment or punishment ; Fair hearing ; Examination of witnesses ; Discrimination ; Right to education ; Just satisfaction
EUROPEAN COURT OF HUMAN RIGHTS
In the Olsson case*,
_______________
* Note by the Registrar: The case is numbered 2/1987/125/176.
The second figure indicates the year in which the case was referred to
the Court and the first figure its place on the list of cases referred
in that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, taking its decision in plenary
session in pursuance of Rule 50 of the Rules of Court and composed of
the following judges:
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mr. Thór Vilhjálmsson,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti,
Mr. B. Walsh,
Sir Vincent Evans,
Mr. R. Macdonald,
Mr. C. Russo,
Mr. R. Bernhardt,
Mr. A. Spielmann,
Mr. J. De Meyer,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar,
Having deliberated in private on 23 September 1987 and
25 February 1988,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 March 1987 and by the
Government of the Kingdom of Sweden ("the Government") on
13 April 1987, within the three-month period laid down by
Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention"). The case originated in an application
(no. 10465/83) against the Kingdom of Sweden lodged with the
Commission on 10 June 1983 under Article 25 (art. 25) by two
Swedish citizens, Mr. Stig and Mrs. Gun Olsson.
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); its
purpose was to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under
Articles 3, 6, 8, 13 and 14 (art. 3, art. 6, art. 8, art. 13, art. 14)
of the Convention and Article 2 of Protocol No. 1 (P1-2). The
Government's application sought the Court's ruling on the
interpretation of Article 8 (art. 8) of the Convention in relation to
those facts.
2. In response to the inquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent them (Rule 30).
3. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. G. Lagergren, the elected judge of Swedish
nationality (Article 43 of the Convention) (art. 43), and
Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)).
On 23 April 1987, the President drew by lot, in the presence of the
Registrar, the names of the five other members, namely
Mr. Thór Vilhjálmsson, Mrs. D. Bindschedler-Robert, Mr. R. Macdonald,
Mr. R. Bernhardt and Mr. J.A. Carrillo Salcedo (Article 43 in fine of
the Convention and Rule 21 § 4) (art. 43).
4. On 25 June 1987, the Chamber decided under Rule 50 to
relinquish jurisdiction forthwith in favour of the plenary Court.
5. Having consulted, through the Registrar, the Agent of the
Government, the Commission's Delegate and the applicants' lawyer
regarding the need for a written procedure, the President of the Court
decided, on 2 July 1987, that it was not necessary for memorials to be
filed (Rule 37 § 1) and directed that the oral proceedings should open
on 21 September 1987 (Rule 38).
6. The hearing was held in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr. H. Corell, Ambassador, Under-Secretary for Legal
and Consular Affairs,
Ministry for Foreign Affairs, Agent,
Mr. K. Rundqvist, Under-Secretary for Legal Affairs,
Ministry of Health and Social Affairs,
Mr. P. Boqvist, Legal Adviser, Ministry for Foreign
Affairs,
Mrs. A.-M. Holmstedt, Legal Adviser, Gothenburg
Municipality, Advisers;
(b) for the Commission
Mrs. G.H. Thune, Delegate;
(c) for the applicants
Mrs. S. Westerberg, lawyer, Counsel.
The Court heard addresses by Mr. Corell for the Government,
by Mrs. Thune for the Commission and by Mrs. Westerberg for the
applicants, as well as their replies to the questions put by the Court
and its President.
7. On 27 July 1987, the applicants had lodged their claims for
just satisfaction under Article 50 (Rule 49), which they supplemented
with further particulars on 19 October. Written comments on those
claims were received from the Government on 7 September and
23 November 1987 and from the Commission on 15 December 1987.
On 3 September and 16 November 1987, the Government, either on their
own initiative or at the Court's request, filed various documents.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. Background
8. The applicants, Mr. Stig and Mrs. Gun Olsson, who are husband
and wife, were born in 1941 and 1944 respectively. They are Swedish
citizens and live in Gothenburg in Sweden. The case concerns three
children of the marriage, namely Stefan, born in June 1971, Helena,
born in December 1976, and Thomas, born in January 1979 (hereinafter
together referred to as "the children"). The applicants and the
children belong to the Church of Sweden; the applicants' membership is
purely nominal, as they describe themselves as atheists.
9. In their youth, both Mr. and Mrs. Olsson had spent some time
at Stretered, a home for the mentally retarded. However, an
examination by a psychologist in 1982 revealed that they then had an
average level of intelligence. Other children of theirs had been in
social care and Stefan has been subject to various forms of special
education since 1975, when he was registered with the Social Welfare
Administration for the Handicapped by reason of his being mentally
retarded.
Prior to the events giving rise to the present case, a number of
different social authorities had been individually involved with the
family; they co-ordinated their activities from 1979 onwards.
Mr. Olsson - who is in receipt of a disability pension - and
Mrs. Olsson were both given certain additional social assistance
between 1971 and 1976. They stated that they lived apart on two
occasions, the first time for three months and the second for eight
months. From May 1977 to December 1979, they were provided with the
support of a home-therapist, and a psychiatric team was in touch with
the family as from 1979. It appears that the applicants had
difficulty in co-operating with the social authorities.
B. Taking of the children into public care and related judicial
proceedings
10. The family's situation was discussed by representatives of the
various social authorities concerned at case conferences held on
26 October 1979, 29 November 1979 and 10 January 1980. The applicants
were present on the last occasion, when different preventive measures
for the children were agreed upon. According to the Government,
nothing came of this agreement because the applicants abandoned it.
On 22 January 1980, Social District Council No. 6 in Gothenburg ("the
Council") decided, pursuant to sections 25(a) and 26(4) of the Child
Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960 Act"; see
paragraphs 35 and 43 below), that the children should be placed under
supervision in view of their parents' inability to satisfy their need
for care and supervision.
11. Further case conferences, at which the applicants were
present, were held on 13 March and 29 May 1980. On 22 August, at
which time the parents were living apart, the Chairman of the Council
decided, pursuant to section 30 of the 1960 Act (see paragraph 43
below), that the children should be provisionally taken into care so
that their situation could be investigated. This decision, which had
been prompted by the fact that Stefan and Helena had been found
cycling around and unable to make their way home, was confirmed
on 26 August by the Council after a meeting on the same day at which
the applicants were present and made oral submissions.
12. On 16 September 1980, the Council decided, at a meeting at
which the applicants were present and had an opportunity to submit
their views, that the children should be taken into care, pursuant to
sections 25(a) and 29 of the 1960 Act (see paragraphs 35 and 43
below). This decision was based, inter alia, on a report compiled by
the social administration and dated 11 September 1980, which was
produced at the meeting. The report reviewed the family history and
background; recorded the applicants' opposition to the children's
being taken into care; concluded that the latter's development was in
danger since they were living in an environment which was
unsatisfactory due to their parents' inability to satisfy their need
for care, stimulation and supervision; noted that preventive measures
had been taken, but with no result; and recommended the taking into
care. Appended to the report were statements from Stefan's former
teacher, from Child Welfare Clinic No. 60 (concerning Helena and
Thomas) and from the home where the children had been placed for
investigation, together with a medical report dated 12 September 1980
and issued by Children's Psychiatric Clinic 2B at a hospital ("Östra
sjukhuset") in Gothenburg. The medical report was signed by chief
doctor Elisabeth Bosaeus, a consultant at the above-mentioned home,
and by Helena Fagerberg-Moss, a psychologist, both of whom were
members of the team that was in touch with the family. It read as
follows (translation from the Swedish):
"The above-mentioned children have been assessed at the children's
psychiatric clinic at Östra sjukhuset on 10 September 1980.
Both parents have been summoned to separate doctor's discussions
but have not appeared. The family has been known at the children's
psychiatric clinic since October 1979, when the social worker
requested observation and an assessment of the development of
Thomas following his admittance to that clinic for pneumonia and an
investigation for urinary infection. After referral from the doctor
responsible, the assessment of Thomas' development was made on
5 October 1979 by a psychologist, Helena Fagerberg-Moss. This
psychologist and welfare officer (kurator) Birgitta Stéen
thereafter participated in conferences at social welfare office
no. 6 on 26 October and 29 November 1979 with all those involved in
the case, concerning the supportive measures the family had
received previously and for the planning of further measures.
Social welfare office conferences, together with the parents, also
took place on 10 January 1980, at which an application for a
day-centre placement for Thomas and Helena was decided upon, and on
13 March and 29 May 1980, at which a holiday in a summer home or
camp was planned for Helena and Stefan. During a home visit
on 25 March 1980, Helena was also the subject of an assessment of
her development by the psychologist Helena Fagerberg-Moss. Thomas
was also the subject of a new assessment of his development on
11 September 1980. During Thomas' stay at the hospital, welfare
officer Birgitta Stéen had contact with the parents. I have taken
note of the investigation report of 18 January 1980, with proposals
concerning supervision, and the report of 26 August 1980, with
proposals concerning a care order. I have also taken note of the
children's medical files. On 10 September 1980, Kerstin Lindsten,
welfare officer at the school for retarded children, provided
certain information by telephone concerning Stefan.
It appears from the medical file that at the age of four months Stefan
was admitted to the Gothenburg children's hospital for assessment of
his development and already at that stage he was found to be
considerably retarded. At the age of six months he was retarded by
two months. During a new test at the age of three years he was found
to be at the developmental level of a 15 to 20 month old child. The
psychologist Barbro Wikman considered him at that time to be passive,
afraid and cautious. He was withdrawn and was most significantly
retarded as regards his linguistic development. He was considered to
be in great need of stimulation and the psychologist questioned
whether there were sufficient opportunities for this in his home
environment. He could not feed himself, could not run properly and he
was not accustomed to playing with other children. According to the
file, the parents were 'not interested in taking him to a special
play-centre'. On 4 May 1976, it was noted that he never had cooked
food, could not construct sentences, did not play outside, cried
easily, could feed himself but did it rarely, and seemed pale and
lethargic. Stefan now attends the third year in a school for the
retarded. It appears that he is one of the weakest pupils. At the
beginning of his time at this school, the home conditions appeared to
be acceptable since the family had a home-therapist. Subsequently,
however, there were alarming reports that Stefan ran around outside
and was often taken care of by the police. He could not control his
urine and bowels, was teased by his friends because he smelled badly,
and he was even undressed by them, according to the school welfare
officer Kerstin Lindsten. Food problems have also occurred, according
to the school nurse. Stefan mostly ate only sandwiches. The boy is
short-sighted and needs to wear glasses, but he does not do so. Since
the parents have also had difficulties in supervising and caring for
Stefan, different ways of placing him have been discussed. A
placement in an educational home appeared to be a good solution, but
the parents withdrew at the last moment. Placement in a foster home
has also been proposed, but the father reacted with depressive
symptoms and kept the boy at home and away from school.
During a medical assessment on 10 September 1980 Stefan gave the
impression of being very retarded in his development but, in
addition, he was cut off in his personal contacts, did not hear
questions, did not treat play material in an adequate manner and
seemed to have a limited concentration and attention span. His
behaviour was clumsy. He could not write his own name and, when
drawing with a pencil, he folded the paper at an angle of 90°. He
did not wear his glasses.
During a development assessment in her home on 25 March 1980,
carried out by Helena Fagerberg-Moss, Helena Olsson attained a
level comparable to that expected of her age. During a visit to the
children's welfare clinic, however, Helena was considered passive,
looked afraid and had an undeveloped use of language. She has been
going to a clinic since September 1979 for stomach problems, but
this has not led to any measure being taken. During an assessment
on 10 September 1980 she was shy when there were several persons in
the same room, did not say anything and behaved as a mother towards
Thomas, giving him toys and embracing him now and then. The same
behaviour has been noted at the children's home.
Thomas' development has been assessed on 5 October 1979 and
11 September 1980 by Helena Fagerberg-Moss. During the first
assessment he was somewhat below the level of development which was
expected and was also somewhat passive and withdrawn in his
contacts. During the second assessment he was seriously quiet,
cautious and his face was without expression. His development was
four to six months behind. His language (at the age of 20 months)
corresponded to a degree of development of a six to eight month old
child. He became clearly stimulated by play and test material and
seemed to have development potential. He gave a clear impression
that he had not received sufficient stimulation at home. In the
medical file it has been noted in August 1979 that the mother's way
of feeding Thomas was clearly abnormal. She held the feeding
bottle at a distance and, even after having been asked to pick him
up, there was no natural close contact. At the children's home it
has been observed that the father still treats Thomas as a baby.
In summary, Stefan, Helena and Thomas are three children whose
parents have been registered as being retarded. The father has
retired early. In addition, the parents' inter-relations are bad.
They have separated for a long period and are now separated again.
The family has moved four times in two and a half years. Stefan
and Thomas show clear signs of backwardness, probably of different
origins. Furthermore, there is a lack of care for the children on
the part of the parents, and the children's behaviour is disturbed.
Stefan has had enuresis and encopresis, feeding difficulties,
social difficulties with other children and has shown vagrancy
tendencies. His special need of clean clothes, glasses (he is
myopic), and extra care and stimulation because of his
backwardness, has not been met by his parents. The linguistic
development of all the children is retarded. Such backwardness is
the most frequent sign of under-stimulation. Helena, who is of
average intelligence, is inclined to take too great a
responsibility for her brother Thomas. Thomas has not had any
opportunity of adequate training either physically or
psychologically.
Since measures taken up to now in the form of a home-therapist,
day-care nursery-home placement, supervision, etc. have not
improved the situation, we recommend that Stefan, Helena and Thomas
be taken into care and be given foster homes."
The applicants alleged that, before this medical report was prepared,
Dr. Bosaeus had never met them and had never visited their home. They
also complained of the fact that she did not herself examine the
children until 10 September 1980, after they had been placed in care
for investigation on 22 August 1980; at that time they were in a state
of shock as a result of violent police action on their removal from
their home and of their completely new environment. It appears,
however, that the psychologist Helena Fagerberg-Moss assessed Thomas
on 5 October 1979 and had visited the parents' home on 25 March 1980,
when she assessed the development of Helena.
13. Since the applicants did not consent to the Council's decision
of 16 September 1980, the matter was submitted, pursuant to section 24
of the 1960 Act (see paragraph 44 below), to the County Administrative
Court (länsrätten) at Gothenburg. It held a hearing on
18 December 1980, at which Mrs. Olsson was represented by a lawyer
under the Legal Aid Act (rättshjälpslagen) and the children by
official counsel (offentligt biträde); Dr. Bosaeus was heard as an
expert.
By judgment of 30 December 1980, the County Administrative Court
confirmed the Council's decision. It stated (translation from the
Swedish):
"It appears from the investigation of the case that the children,
Stefan, Helena and Thomas, who all place specially high demands on
those who care for them, have for several years been living in an
unsatisfactory home environment as a result of the parents' inability
to satisfy the children's need of care, stimulation and supervision.
Stefan and Thomas disclose a clear retardation in their development
and all three children are backward in language development.
According to Dr. Bosaeus, who issued a medical report on
12 September 1980 and was heard as an expert in the oral proceedings,
there is a great risk that Helena will develop negatively if she stays
in the parents' home. It is therefore as important to place her in a
foster home as it is for Stefan and Thomas. Dr. Bosaeus has
accordingly recommended taking the three children into care.
Preventive measures with a home-therapist have been tried for several
years and supervision has been arranged without any resulting
improvement.
It must therefore be considered as proved that the health and
development of the children are jeopardised as a result of the
parents' present inability to give them satisfactory care and
education.
The decision submitted is therefore compatible with the provisions
in section 25(a) and section 29 of the 1960 Act."
14. Mrs. Olsson appealed to the Administrative Court of Appeal in
Gothenburg (kammarrätten; see paragraph 50 below); her husband
concurred in the appeal. The Council and official counsel for the
children moved that the appeal be rejected. The Administrative Court
of Appeal held a hearing and then, on 8 July 1981, confirmed the
judgment of the County Administrative Court. However, one of the
three judges and one of the two laymen sitting in the Court of Appeal,
whilst agreeing with the taking of Helena into care, dissented as
regards Stefan and Thomas.
15. Mrs. Olsson sought to appeal to the Supreme Administrative
Court (regeringsrätten; see paragraph 50 below), but on 27 August 1981
it refused her leave to appeal.
C. Implementation of the care decisions
1. Placement of the children
16. On 22 August 1980, following the decision of the Chairman of
the Council (see paragraph 11 above), the children were placed in a
children's home in Gothenburg for an investigation of their situation.
They remained there until their subsequent placement in separate
homes, as described below.
(a) Stefan
17. Around 1 October 1980, the applicants removed Stefan from the
children's home and hid him for approximately one month. He was then
placed in an educational home in Gothenburg run by the Board for the
Retarded, but his parents again took him away and hid him for about
two months.
As from 28 February 1981, Stefan was placed, with the assistance of
the police, with a foster family of the name of Ek - where he had
previously spent some summers - at Tibro, approximately 100 kilometers
from the applicants' home.
By decision of 28 June 1983, prompted by conflicts between the natural
and the foster parents, the Council moved Stefan to a children's home,
Viggen, at Vänersborg, which was run by the Board for the Retarded and
situated about 80 kilometers to the north of Gothenburg.
(b) Helena and Thomas
18. Helena and Thomas were placed in separate foster homes
- Helena with the Larsson family at Näsåker, in the vicinity of the town
of Hudiksvall, on 21 October 1980 and Thomas with the Bäckius family
at Maråker, south of Söderhamn, on 10 November 1980. These
localities, which lie to the north-east of Gothenburg, are about 100
kilometers from each other. The distances by road from Hudiksvall and
Söderhamn to Gothenburg are 637 and 590 kilometers, respectively
(see M·KAK, Bilatlas, Sverige, 1981).
19. The Government stated that the original intention had been to
place Helena and Thomas with separate families in the same village,
but that this had proved impossible at the last minute. They added
that the Larsson and Bäckius families were in continuous contact, gave
each other much support and met, together with Helena and Thomas,
approximately every six weeks.
20. Thomas' foster parents and their own children are members of
the Church of Sweden and attended church with him - regularly,
according to the applicants, or two or three times a year, according
to the foster parents.
2. Restrictions on the applicants' access to the children
21. Since the children were taken into care, their parents' access
to them has been the subject of various decisions, including the
following.
(a) Stefan
22. Stefan spent some three to four weeks with his parents in the
summer of 1982. However, on 10 August 1982 the Council decided,
pursuant to section 16(1) of the 1980 Act (see paragraph 48 below), to
limit their access to him to one visit every six weeks. They appealed
to the County Administrative Court, but on 17 November 1982 it
confirmed the restrictions (see paragraph 28 below).
23. After 22 April 1984, Mr. and Mrs. Olsson were allowed to see
Stefan every week, mostly at their home. He spent some weeks with
them in the summer of 1986.
(b) Helena and Thomas
24. On 21 October 1980, the Council decided to ban access by the
applicants to Helena and Thomas at their foster homes, in accordance
with section 41 of the 1960 Act (see paragraph 48 below), and to
prohibit disclosure of their whereabouts. However, the applicants
were allowed to meet the children elsewhere, every second month. The
decision was designed to protect the children's chances of settling
down and was prompted by the fact that Stefan had previously been
removed from his home and hidden by his parents (see paragraph 17
above).
The foregoing restriction was lifted in September 1981, but in
February 1983 the Council decided, having regard to the attitude of
confrontation adopted by the applicants towards the foster parents, to
confine the former's contacts with Helena and Thomas to one visit at
the foster homes every third month. This new restriction was
confirmed by the County Administrative Court, on appeal, on
25 March 1983 and again by the Council in decisions of 2 August 1983,
6 December 1983 and 30 October 1984. On 3 October 1985, the County
Administrative Court dismissed an appeal by the applicants against the
last-mentioned decision; they withdrew their appeal on this point in
subsequent proceedings before the Administrative Court of Appeal (see
paragraph 31 below) and the restriction therefore continued in force
for the remainder of the period during which these children were in
public care.
25. According to Mr. and Mrs. Olsson, Helena and Thomas were
permitted to visit the family home only once - in 1982 - whilst they
were in care, for a few hours and under the strict supervision of the
foster mothers and one or two social workers. The applicants added
that they were allowed to visit these children only a couple of times
a year, under the supervision of social workers, teachers or foster
parents; it appears that as time went by they tended to avoid such
visits, which they considered humiliating, notably on account of the
visiting conditions.
The material before the Court reveals that Mr. and/or Mrs. Olsson saw
Helena and Thomas in March 1981 at a neutral place in Gothenburg; in
September 1981 at their foster homes; in December 1981 at Stefan's
foster home; and just before Easter 1982 at Helena's foster home. The
Commission's report contains a more general statement to the effect
that the applicants met the two younger children "three times a year
during the first years". The applicants do not appear to have paid
any visits to them between June 1984 and the spring of 1987.
3. Attitude of the applicants
26. Before the Commission, the Government referred to problems
that had arisen as regards co-operation between the applicants on the
one hand and the children's foster parents and the social authorities
on the other (see paragraphs 100, 101, 109, 110 and 111 of the
Commission's report). The applicants' submissions to the Commission
on this point are summarised as follows:
"That the applicants would co-operate with the social workers is
completely unthinkable. The action of these social workers is
completely in conflict with the applicants' own understanding of how
children and adults and family members and others ought to show
respect and consideration. ... It must be added that if the
applicants were to co-operate with the foster parents and the social
workers they would risk passing on to their children the totally wrong
impression that the separation of children and parents and the
placement of the children in foster homes had occurred with the
consent of the applicants. This would be completely disastrous to the
self-respect of the applicants' children if they had the wrong
impression that their natural parents did not wish them to be at home
with them." (ibid., paragraph 80 in fine)
D. Requests for termination of care
27. Following a request by the applicants for termination of the
care of the children, a meeting was held on 1 June 1982 at the
Council's office, at which the applicants, their lawyer and official
counsel for the children were present.
On the same day, the Council rejected the request. It based its
decision on reports compiled by the social administration and dated
24, 25 and 26 May 1982, which concluded that the parents were then
incapable of giving the children the necessary support and
encouragement. Annexed to the reports were statements from the
psychologist Helena Fagerberg-Moss, social workers and a school
teacher, indicating that the children had made satisfactory progress
since being taken into care.
28. The applicants thereupon appealed to the County Administrative
Court. It held a hearing on 4 November 1982, at which the applicants
were present and assisted by a lawyer; the Council was represented by
a lawyer and two social workers and the children by official counsel.
Dr. Bosaeus and a social expert from the County Administrative Board
(länsstyrelsen; see paragraph 41 below) gave evidence - the former at
the request of the applicants' lawyer - and various written opinions
from a psychologist, a welfare officer, a school teacher of Stefan and
his school doctor were read out. The President of the Court also
summarised the documents on which the Council's decision had been
based.
The applicants submitted that the medical report of 12 September 1980
(see paragraph 12 above) contained clearly false information, by
affirming that they were mentally retarded, and did not indicate any
concrete facts showing that the children would have been in danger if
they had continued to live with their parents. The Council, for its
part, asserted that its refusal to terminate care had been based not
on the applicants' being mentally retarded but on their inability to
satisfy the children's need for care, stimulation and supervision.
In its judgment of 17 November 1982, the County Administrative Court,
in addition to confirming the restrictions on parental access to
Stefan (see paragraph 22 above), held as follows (translation from the
Swedish):
"The facts of the case show that the children suffered to a
greater or lesser extent from different types of disturbance when they
were taken into care. Stefan was disturbed in his development at a
level comparable to special lower class. Following the placement in a
foster home, his social abilities have improved and his language
development has accelerated. His incontinence has to a large extent
disappeared. In the special lower school Stefan has developed
favourably having regard to his abilities. As regards Helena and
Thomas, they have developed favourably in the foster homes. The
assessment of these two children's psychological development
undertaken in the spring of 1982 shows that the previous delays and
disturbances have now been caught up or have disappeared, and that
their development is now completely at the same level as that to be
expected for their age.
As far as the applicants are concerned, their circumstances seem to
have stabilised in recent times. Thus, the couple moved from Angered
in January 1981 and since then have been living in a more
child-adapted environment in the community of Ale. The dispute which
prevailed in the marriage at the time when the children were taken
into care has been overcome, and it seems now as if the relations
between the applicants are better. Following a request from their
representative, the applicants have been examined by psychologist
Gudrun Olsson from Gothenburg. This investigation shows that both
applicants have an average level of intelligence.
Under section 5 of the 1980 Act [see paragraph 49 below], the decisive
issue in determining whether care under the Act in question should be
terminated is whether it is no longer necessary. Facts such as the
apparent improvement and stabilising of the applicants' situation and
the children's favourable development in their foster homes are an
argument in favour of the termination of care. However, there are
several circumstances militating in the opposite direction. Stefan,
who during 1982 has had several permissions to visit the parents'
home, has been disturbed in various ways upon his return to the foster
home and has relapsed into his previous negative behaviour. Stefan's
return trip to the foster home on 28 June 1982 does not seem to have
been well planned and it developed in an unfortunate way for him. In
addition, the applicants have so far had difficulties in co-operating
in a satisfactory manner with Stefan's foster home and the Social
Council. In making an assessment of all the facts of the case, the
Court finds that the applicants still show a lack of comprehension and
ability to give the children satisfactory care and education. It must
therefore be feared that a termination of care under the Act can at
present involve great risks for the health and development of the
children. Care is therefore to continue and the appeal is rejected."
29. The applicants then appealed to the Administrative Court of
Appeal. After a hearing on 20 December 1982, at which they were
present and assisted by counsel, the appeal was dismissed on
28 December 1982. The applicants had unsuccessfully requested that
Dr. Bosaeus be called as a witness at the hearing.
Mr. and Mrs. Olsson sought to appeal to the Supreme Administrative
Court, but on 11 March 1983 it refused them leave to appeal.
30. A fresh request by the applicants to the Council for
termination of the care of the children was refused on
6 December 1983.
31. On 30 October 1984 and 17 September 1985, the Council rejected
further requests by the applicants for termination of the care of
Helena and Thomas and of Stefan, respectively; on the first of these
dates it also declined to lift the restriction on visits to Helena and
Thomas (see paragraph 24 above). Appeals by the parents against these
decisions were dismissed by the County Administrative Court
on 3 October 1985 and 3 February 1986, respectively.
The applicants thereupon appealed to the Administrative Court of
Appeal, which joined the two cases. After holding a hearing at which
Mr. and Mrs. Olsson were present and gave evidence, the Administrative
Court of Appeal, by judgment of 16 February 1987, directed that the
public care of Stefan be terminated: it took into consideration his
recent positive development, his parents' increased understanding of
his needs and their agreement that he should complete his current term
of schooling at Vänersborg (see paragraph 17 above). However, the
appeal concerning Helena and Thomas - the scope of which was confined
by Mr. and Mrs. Olsson themselves at the hearing to the care issue, to
the exclusion of the access issue - was dismissed. The Administrative
Court of Appeal's opinion that the public care of these two children
should continue was based primarily on the fact that the applicants
were unable to understand and satisfy the special needs arising in
connection with re-uniting parents and children after so long a period
of separation.
Following an appeal by the parents, the Supreme Administrative Court,
by judgment of 18 June 1987, directed that the public care of Helena
and Thomas should terminate, there being no sufficiently serious
circumstances to warrant its continuation. The Supreme Administrative
Court pointed out that the question to be determined in deciding
whether care should be discontinued pursuant to section 5 of the 1980
Act (see paragraph 49 below) was whether there was still a need for
care. The problems associated with the removal of a child from a
foster home and its possible detrimental effects on him and with his
reunification with his natural parents - on which the Administrative
Court of Appeal had relied - were matters to be considered not under
section 5 but in separate proceedings, namely an investigation under
section 28 of the Social Services Act 1980 (socialtjänstlagen
1980:620). The latter section empowers a Social District Council to
prohibit, for a certain period of time or until further notice, the
removal from a foster home of a minor who is not or is no longer in
public care, if there is thereby a risk, which is not of a minor
nature, of harming his physical or mental health.
32. Stefan is now reunited with his parents.
However, on 23 June 1987 the Council, acting pursuant to section 28 of
the Social Services Act 1980, prohibited them until further notice
from removing Helena and Thomas from their respective foster homes.
An application by Mr. and Mrs. Olsson for the interim suspension of
this prohibition was refused by the County Administrative Court on
25 June 1987; this decision was confirmed by the Administrative Court of
Appeal on 2 July 1987 and, on 17 August 1987, the Supreme Administrative
Court refused leave to appeal. On 3 November 1987, the County
Administrative Court rejected on the merits the applicants' appeal
against the prohibition; it expressed the opinion that "a prohibition
against removal should not be valid for too long a period" and that "a
precondition for the rescission of the prohibition ... is that efforts
should be made to improve contacts between the parents and children,
both through Mr. and Mrs. Olsson and through the Social District
Council". According to information supplied to the European Court by
the Government on 16 November 1987, an appeal by the applicants to the
Administrative Court of Appeal against this judgment was then pending;
in the meantime, they remained free to visit Helena and Thomas at the
foster homes.
II. RELEVANT DOMESTIC LAW
A. Introduction
33. According to Swedish child-welfare legislation, each
municipality is responsible for promoting the favourable development
of children and young persons by taking, if necessary, supportive or
preventive measures (see paragraph 43 below). It may also take a
child into care and place him in a foster home, a children's home or
another suitable institution.
The legislation divides measures of the latter kind into two
categories: the first concerns "voluntary care", enabling a parent to
place his child into the care of a local authority; the second
provides for "compulsory care", by establishing machinery whereby a
local authority can obtain a court decision or order committing a
child to its care. It was recourse to this machinery that was in
issue in the present case.
34. Decisions concerning the applicants' children were taken under
the 1960 Act and under the Act containing Special Provisions on the
Care of Young Persons 1980 (lag 1980: 621 med särskilda bestämmelser
om vård av unga - "the 1980 Act"). The 1980 Act complements the
Social Services Act 1980, which deals with voluntary care; on entering
into force on 1 January 1982, they together replaced the 1960 Act. In
general, decisions taken under the 1960 Act which were still in force
on 31 December 1981 were considered to be decisions taken under the
1980 Act.
B. Conditions for compulsory care
1. Under the 1960 Act
35. Under section 25(a) of the 1960 Act, the competent local
authority in child-care matters - the Child Welfare Board
(barnavårdsnämnden) or, in Stockholm and Gothenburg, the Social
District Council - was obliged to intervene (translation from the
Swedish):
"[if] a person, not yet eighteen years of age, is maltreated in his
home or otherwise treated there in a manner endangering his bodily or
mental health, or if his development is jeopardised by the unfitness
of his parents or other guardians responsible for his upbringing, or
by their inability to raise the child."
Section 25(b) of the 1960 Act (which was not applied in the present
case) provided that the local authority also had to intervene if a
minor needed corrective measures because of his criminal, immoral or
otherwise asocial behaviour.
36. As regards section 25(a), the preparatory work to the 1960 Act
stated, inter alia, the following (translation from the Swedish):
"In the future too, an important reason for intervention must be that
a minor is exposed to physical maltreatment. The specific reference
to this in the text of the statute seems to some extent to obscure the
importance of the fact that children and young persons must also be
protected from other kinds of treatment which may be harmful to their
bodily or mental health. For this reason, the Bill instead makes it a
prerequisite for intervention that the minor is being maltreated in
his home or that he is otherwise treated there in such a way as to
endanger his bodily or mental health. This amendment in relation to
the law now in force does not aim at bringing about any material
change. Reasons for intervention, except for physical maltreatment,
may be such as are given as examples in the preparatory work to the
legislation now in force: for instance, that a child, who is perhaps
being cared for with great tenderness, is all the same continuously
exposed to mortal danger owing to his mother's mental illness, or that
an infant is being cared for by a mother who is suffering from
tuberculosis in a contagious state. Further examples may be that the
minor is obliged to do work that is unreasonably hard considering his
age or his strength, that he does not get enough to eat and is for
that reason clearly undernourished, or that his home environment is
marked by a considerable lack of hygiene. According to the practice
that has been applied hitherto, it should also be possible to
intervene in those instances where the parents - perhaps because of
their religious convictions - omit to give the child the medical care
and treatment that he needs. Among the cases where children are
exposed to mental injury or danger may be mentioned the one where
parents - with evident symptoms of mental abnormalities or of
pathological attitudes - bring up their children in a way, as the
committee puts it, that includes a kind of spiritual error and which
often in the end causes their personality to develop in an undesirable
way. When such upbringing has the result that the child's mental
health is endangered, it comes under the section now dealt with.
For an intervention under section [25(a)] of the 1960 Act to be
permitted, there must be a danger of the child's becoming a misfit
because of his parents' vicious way of life or their negligence or
inability to educate the child. The provision in question thus
concerns abnormalities in the parents or in their capacity to
educate; it lays down that those abnormalities should be such as
to endanger the child's social development. Parents and other
custodians should be treated on equal terms in this respect.
Otherwise only amendments of a formal nature seem to be required.
Thus, it is suggested that the words 'vicious' and 'negligence' be
replaced by the expression 'unsuitability as custodians', which
seems more appropriate in this context. Obviously, the scope of
this expression is somewhat wider than the one currently in use.
Apart from 'vicious' and 'negligent' custodians, it thus also
covers those suffering from serious mental abnormalities. There
seems to be no reason to object to this enlargement of the field of
application of this rule. Society should be entitled to intervene
as soon as there is a danger of a young person's unfavourable
social development owing to shortcomings in the custodian. Since
the notion of 'misfit', as the committee has found, should be
excluded from this legislation, the intervention of the Child
Welfare Board has instead been made subject to the prerequisite
that the development of the young person is in jeopardy. This
means that intervention shall take place whenever needed to prevent
such abnormalities of behaviour as are indicated under section
[25(a)]. It should be pointed out that, just as is the case under
the law now in force, an intervention does not require that there
have so far been any signs of maladaptation in the young person in
question." (Reproduced in NJA II - Nytt Juridiskt Arkiv,
"Journal for Legislation" - 1960, pp. 456 et seq.)
2. Under the 1980 Act
37. Conditions for compulsory care under the 1980 Act are set out
in section 1, which reads (translation from the Swedish):
"Care is to be provided pursuant to this Act for persons under
eighteen years of age if it may be presumed that the necessary care
cannot be given to the young person with the consent of the person or
persons having custody of him and, in the case of a young person aged
fifteen or more, with the consent of the young person.
Care is to be provided for a young person if:
1. lack of care for him or any other condition in the home
entails a danger to his health or development; or
2. the young person is seriously endangering his health or
development by abuse of habit-forming agents, criminal behaviour or
any other comparable behaviour.
..."
38. The following are extracts from the preparatory work to the
1980 Act, as reproduced in NJA II 1980, pp. 545 et seq. (translation
from the Swedish).
The Parliamentary Standing Committee on Social Questions stated:
"An important point of departure for the reform of the social services
is that salient features in the handling of individual cases should be
respect for liberty and the right of the individual to decide about
his own life. The aim of the social services should be to co-operate
with the client as far as possible, in order to make him take part in
decisions as to the planning of treatment and make him co-operate
actively in carrying it out. The social services should offer help
and support, but not take over the individual's responsibility for his
own life. Personal initiative and responsibility must be made part of
care and treatment. In this manner the social services may work more
actively in a preventive way, and the opportunity to achieve more
long-lasting results will be improved.
This fundamental principle of the new legislation has been laid down
in section 9 of the Social Services Bill, which stipulates that the
measures taken by the Social Council in regard to any individual
person should be conceived and carried out in co-operation with the
person concerned. Consequently, all social services' opportunities to
use coercive measures on adults have been abolished. It is true that,
regarding young people and children, the possibility of providing care
outside their home contrary to the wishes of the young person or his
parents is retained. In this field too, the reform means, however,
that the right of the individual to be a party to those decisions that
concern his own fate is more strongly stressed. The individual should
be able to turn to the social services confidently and ask for help,
without risking undesired effects in the form of various coercive
measures.
At the same time there is unanimity in considering that in certain
cases society must be able to use coercive measures against an
individual, whenever this is needed to avoid an immediate risk to
somebody's life or health."
The Minister of Health and Social Affairs stated:
"Section 1, second paragraph, point 1, indicates that one ground for
measures on the part of society is that lack of care for a young
person in his home or some other situation in his home constitutes a
danger to his health or development. This rule refers to situations
where the young person does not receive sufficient care in his home or
is exposed to treatment in his home that means there is a danger to
his mental or physical health or to his social development. By the
word 'home' is to be understood the home of the parents, as well as
any other home where the young person is residing permanently. Under
this description come, inter alia, cases where the young person is
subject to maltreatment in his home. Even a slight degree of
maltreatment must be supposed to cause danger to the health or
development of the young person. If, in such a case, the parents
oppose such measures as the Social Council may consider necessary to
assure the protection of the young person, application of the law may
come into focus. In case there has been maltreatment of a more
serious kind, the young person should as a matter of course be
provided with care outside his home, at least for some time.
As with the 1960 Act, this provision may also be applied in those
instances where the parents intend to place the young person in an
environment that will endanger his health or his development, or where
they do not prevent him from being in such an environment.
This section thus embraces all those situations where the child is
being exposed to physical maltreatment or negligent care. This
legislation may also be applicable if parents endanger the mental
health of a child by their personal characteristics. If the child's
mental health or development is being endangered because of parental
behaviour - for instance, by way of continuously recurring scenes at
home owing to abuse of alcohol or narcotics - or because of the mental
abnormality or state of the parents, it should be possible to provide
care for the child under this Act.
...
The Act is primarily aimed at enabling the social services to provide
for the young person's need of care. It is the current need of care,
and what can be done at the moment and in the future to see to it that
this need is met, that will govern the measures taken by the Social
Council. As I have pointed out in my general statement concerning
this Bill, this legislation can, however, not be used to provide for
society's need for protection. It is a different matter that, in
those instances where a young person needs to be taken into care
according to this Act, this measure will also have the effect of
protecting society.
The Social Council is to take appropriate measures as soon as it
considers that a situation such as has been indicated in the second
paragraph under points 1 and 2 arises. It may, for instance, have
come to the knowledge of the Council that a child is being exposed to
unsuitable treatment or even to actual danger at home. During an
inquiry the situation may appear to be such that the child ought to be
provided with care outside his home. The Council should then in the
first place try to meet the need for care by reaching an understanding
with the parents. In case the parents and the Council cannot reach an
agreement as to the question of how the child should be cared for, the
Council must turn to the County Administrative Court to obtain a
decision on care under the Act, with an inherent authorisation
permitting the Council to make decisions regarding the way in which
the care should be implemented."
C. Organisation and administration of child care
39. The Child Welfare Board was empowered to exercise functions
and make decisions in child-welfare matters within a municipality
(sections 1 and 2 of the 1960 Act). In doing so, it had to give
particular attention to minors who were exposed to the risk of
unfavourable development due to their physical and mental health, home
and family conditions and other circumstances (section 3). The Board
was composed of lay members who were assisted by social workers.
40. Since the 1980 social-services legislation entered into force,
the functions of the Child Welfare Boards have been taken over by
Social Councils, which are composed in the same way as the former
Boards but are responsible for social welfare in general.
The tasks of the Social Council may, as is the case in Gothenburg, be
performed by two or more Social District Councils, each being
responsible for a designated area. In child-care matters, a District
Council has the same powers and duties as a Social Council.
41. As were the Child Welfare Boards, the Social Councils are
under the supervision and control of the County Administrative Board
and the National Board of Health and Welfare (socialstyrelsen).
D. Care decisions
42. Child Welfare Boards sought and received information about
ill-treatment of children or their unsatisfactory living conditions
through various officials having frequent contacts with children, such
as social workers, doctors, nurses and teachers. Matters of this kind
could also be reported to the Boards by private citizens. Upon
receipt of such information, a Board had to undertake, without delay,
a comprehensive investigation, including interviews, medical
examinations and visits to the child's home.
43. If the Board found that the child's situation corresponded to
that described in section 25 of the 1960 Act (see paragraph 35 above),
it had, before resorting to care, to endeavour to remedy the matter by
preventive measures (förebyggande åtgärder). These could consist of
one or more of the following steps: advice, material support,
admonition or warning, orders pertaining to the child's living
conditions, or supervision (section 26). If such measures proved
insufficient or were considered pointless, the Board had to place the
child in care (section 29).
However, a child had to be taken provisionally into care for
investigation (without the need for prior preventive measures) if
there was a probable cause for intervention under section 25 and if
there would otherwise be a risk of deterioration in his situation.
Such a decision was valid for a maximum period of four weeks
(section 30).
In urgent situations where the decision of the Board under section 29
or 30 could not be awaited, section 11 of the 1960 Act empowered the
Chairman of the Board to take interim action alone. If he did so, he
had to convene a meeting of the Board within ten days in order that a
decision be taken in the matter.
44. Further procedural requirements for placing a child in care
under section 29 or 30 of the 1960 Act were set out in section 24; in
particular, the decision had to be notified without delay to the
parents concerned. If they disagreed, the matter had to be referred
for review to the County Administrative Court within ten days.
45. Under the 1980 Act, if a Social Council considers that certain
action is necessary, it has to apply to the County Administrative
Court for a decision; unlike Child Welfare Boards under the 1960 Act,
it cannot take the decision itself.
In urgent cases, however, the Council or its Chairman may place a
child in care as a provisional measure; such a step must be referred
within a week to the County Administrative Court, for decision within
the following week.
E. Implementation of care decisions
46. When a care decision has been taken, the Social Council
(formerly the Child Welfare Board) has to implement it, by attending
to the practical details of such matters as where to place the child
and what education and other treatment to give him (sections 35-36 and
38-41 of the 1960 Act and sections 11-16 of the 1980 Act).
1. Requirements as to placement
47. The 1960 Act provided that a child who had been taken into
care was entitled to good care and upbringing as well as the education
that was necessary in the light of his personal capacity and other
circumstances. The child had preferably to be placed in a foster home
or, if that was not possible, in a suitable institution, such as a
children's home or school (sections 35 and 36). The Child Welfare
Board had to supervise the care and the development of the child and,
if necessary, take decisions concerning his or her personal affairs
(sections 39 and 41).
During the course of the preparatory work to the 1980 Act, the
Parliamentary Standing Committee on Social Questions stressed that it
was essential for the development of the child that the parents had
regular contacts with him; this was also of decisive importance so as
to ensure that his return to his original home could be effected
smoothly. In fact, section 11 of the 1980 Act provides that he may be
allowed, after a period, to return to live there, if it appears that
such a course is the best in order to further the aims of the care
decision.
2. Regulation of the parents' right of access
48. The 1960 Act provided that the Child Welfare Board could
regulate a parent's right of access to his child in care to the extent
that it found this reasonable in the light of the aims of the care
decision, the upbringing of the child or other circumstances
(section 41).
Under the 1980 Act, restrictions on access can be imposed by the
Social Council, in so far as this is necessary for the purposes of the
care decision (section 16). Unlike the 1960 Act, the 1980 Act
expressly empowers the authority concerned to refuse to disclose the
child's whereabouts.
F. Reconsideration and termination of compulsory care
49. Under section 42(1) of the 1960 Act, compulsory care had to be
discontinued as soon as the aims of the care decision had been
achieved. The corresponding rule in the 1980 Act provides that the
Social Council shall terminate care when it is no longer necessary
(section 5, first paragraph). The preparatory work to this provision,
as reproduced in the Government's Bill (1979/80:1, p. 587), stated
(translation from the Swedish):
"It follows that an important task of the Council is to see to it that
... care does not continue for longer than is necessary in the
circumstances. Care is to be discontinued as soon as there is no
longer any need for the special prerogatives granted to the Council by
the Act. It is true that it is part of the custodian's responsibility
resting with the Council to pay close attention to the care provided
by other people on the Council's behalf. However, against the
background of, inter alia, the way the 1960 Act is today applied, it
has been considered important that the supervisory duties of the
Council are clearly laid down in the text of the [new] Act."
Section 41 of the Social Services Ordinance 1981 (socialtjänst-
förordningen 1981:750) lays down that a care decision based on
unsatisfactory conditions in the child's home must be reconsidered by
the Social Council regularly and at least once a year.
Both before and after the entry into force of the 1980 Act, a parent
could, under the general principles of Swedish administrative law, at
any time request that the compulsory care of his child be terminated.
G. Appeals
50. Decisions of the County Administrative Court that a child be
taken into care might (under the 1960 Act) or may (under the 1980 Act)
be the subject of an appeal to the Administrative Court of Appeal and,
with leave, to the Supreme Administrative Court.
A parent could or can also appeal 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 Child Welfare Board or a Social Council to
terminate care ordered under the 1960 or the 1980 Act
(see paragraph 49 in fine above);
(b) decisions taken by a Child Welfare Board under the 1960 Act
relating, inter alia, to the visiting rights of the parents;
(c) decisions taken by a Social Council under the 1980 Act as to
where the care should commence; to change a placement decision;
regulating the parents' right of access; and not to disclose the
child's whereabouts to them (section 20 of the 1980 Act).
According to the Government, the 1960 Act did not entitle a parent to
appeal to the County Administrative Court against a placement decision
as such, but the 1980 Act does. The Government maintained, however,
that the applicants could at any time have raised before the County
Administrative Board (see paragraph 41 above) - with the possibility
of a subsequent appeal to the Administrative Court of Appeal and
thence to the Supreme Administrative Court - a plea that, as a result
of their placement and contrary to the requirements of the 1960 Act,
the children were not receiving proper care and education.
PROCEEDINGS BEFORE THE COMMISSION
51. In their application of 10 June 1983 to the Commission
(no. 10465/83), Mr. and Mrs. Olsson alleged that the care decision and
the subsequent placement of the children constituted a breach of
Article 8 (art. 8) of the Convention. They also invoked
Articles 3, 6, 13 and 14 (art. 3, art. 6, art. 13, art. 14), as well
as Article 2 of Protocol No. 1 (P1-2), and complained that, contrary
to Article 25 (art. 25) of the Convention, the exercise of their right to
petition the Commission had been hindered.
52. On 15 May 1985, the Commission declared the application
admissible, but decided to take no action with respect to the
complaint under Article 25 (art. 25).
In its report adopted on 2 December 1986 (Article 31) (art. 31),
the Commission expressed the opinion that:
(a) the care decisions concerning the applicants' children in
combination with their placement in separate foster homes and far away
from the applicants constituted a violation of Article 8 (art. 8)
of the Convention (eight votes to five);
(b) there had been no violation of Articles 3, 6, 13 or 14
(art. 3, art. 6, art. 13, art. 14) of the Convention or of Article 2
of Protocol No. 1 (P1-2) (unanimous).
The full text of the Commission's opinion and of the partly dissenting
opinion contained in the report is reproduced as an annex to the
present judgment.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
53. At the hearing on 21 September 1987, the Government requested
the Court to hold "that there has been no violation of the Convention
in the present case".
AS TO THE LAW
I. SCOPE OF THE ISSUES BEFORE THE COURT
54. In the course of their submissions, the applicants made a
number of general complaints concerning the alleged incompatibility
with the Convention of, firstly, Swedish child-care law and, secondly,
the practice of the Swedish courts.
The Court recalls that in proceedings originating in an application
lodged under Article 25 (art. 25) of the Convention it has to confine
itself, as far as possible, to an examination of the concrete case
before it (see, as the most recent authority, the F v. Switzerland
judgment of 18 December 1987, Series A no. 128, p. 16, § 31). Its
task is accordingly not to review the aforesaid law and practice in
abstracto, but to determine whether the manner in which they were
applied to or affected Mr. and Mrs. Olsson gave rise to a violation of
the Convention.
55. At the Court's hearing, the Government contended that in its
report the Commission had gone beyond the limits of its admissibility
decision of 15 May 1985 by considering a number of decisions not
examined therein or in respect of which domestic remedies had not been
exhausted at that date. In their submission, the Court should not
deal with the decisions in question, which were: firstly, those taken
by the Council on 21 October 1980, 10 August 1982, 2 August 1983,
6 December 1983 and 30 October 1984 and by the County Administrative
Court on 17 November 1982, in so far as they related to visits by the
applicants to the children (see paragraphs 22 and 24 above); and
secondly, those taken by the Council on 6 December 1983 and
30 October 1984, refusing the applicants' requests for termination of
care (see paragraphs 30-31 above).
The Commission replied that it had followed its constant practice of
considering the facts of the case as they stood at the time of the
establishment of its report and that, during the course of its
proceedings, the Government had not pleaded a failure to exhaust
domestic remedies in respect of any of the said decisions.
56. The Court observes that all those decisions pre-dated the
Commission's hearing on the admissibility and merits of the case
(15 May 1985) and that in the circumstances there was nothing to
prevent the Government from raising a plea of non-exhaustion at that
time (see, as the most recent authority, the Bozano judgment
of 18 December 1986, Series A no. 111, p. 19, § 44). Furthermore, the
questions of the applicants' visiting rights and of the requests for
discontinuance of care were referred to during that hearing.
In addition, Rule 47 of the Rules of Court provides that "a Party
wishing to raise a preliminary objection must file a statement setting
out the objection and the grounds therefor not later than the time
when that Party informs the President of its intention not to submit a
memorial ...". In the present case - where no memorials on the merits
were lodged (see paragraph 5 above) - the Government filed no such
statement and raised their plea solely at the Court's hearing. It
must therefore be rejected as out of time.
Furthermore, whilst the Court's jurisdiction in contentious matters is
determined by the Commission's decision declaring the originating
application admissible, it is competent, in the interests of the
economy of the procedure, to take into account facts occurring during
the course of the proceedings in so far as they constitute a
continuation of the facts underlying the complaints declared
admissible (see, as the most recent authority, the Weeks judgment
of 2 March 1987, Series A no. 114, p. 21, § 37). In the Court's view,
the decisions in question can be regarded as falling into this
category and the Commission acted properly in taking them into
account.
57. On the other hand, the 1987 decisions concerning the
prohibition on the removal of Helena and Thomas from their respective
foster homes (see paragraph 32 above) are the subject of a further
application which Mr. and Mrs. Olsson lodged with the Commission
on 23 October 1987. Any new question raised therein cannot be settled
by the Court in the present judgment (see the Swedish Engine Drivers'
Union judgment of 6 February 1976, Series A no. 20, p. 13, § 34, and
the above-mentioned Weeks judgment, loc. cit.).
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
A. Introduction
58. The applicants asserted that the decision to take the children
into care, the manner in which it had been implemented and the
refusals to terminate care 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 accepted by a
majority of the Commission.
59. The mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life; furthermore,
the natural family relationship is not terminated by reason of the
fact that the child is taken into public care (see the W v. the United
Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, § 59). 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.
Such an interference entails a violation of Article 8 (art. 8) unless
it was "in accordance with the law", had an aim or aims that is or are
legitimate under Article 8 § 2 (art. 8-2) and was "necessary in a
democratic society" for the aforesaid aim or aims (ibid., p. 27,
§ 60 (a)).
B. "In accordance with the law"
60. The applicants did not deny that the authorities had acted in
accordance with Swedish law. However, they alleged that the measures
taken were not "in accordance with the law" within the meaning of
Article 8 (art. 8), notably because the relevant legislation set no
limits on the discretion which it conferred and was drafted in terms
so vague that its results were unforeseeable.
The Government contested this claim, which was not accepted by the
Commission.
61. Requirements which the Court has identified as flowing from
the phrase "in accordance with the law" include the following.
(a) A norm cannot be regarded as a "law" unless it is formulated with
sufficient precision to enable the citizen - 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;
however, experience shows that absolute precision is unattainable and
the need to avoid excessive rigidity and to keep pace with changing
circumstances means that many laws are inevitably couched in terms
which, to a greater or lesser extent, are vague (see, for example, the
Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31, § 49).
(b) The phrase "in accordance with the law" does not merely refer
back to domestic law but also relates to the quality of the law,
requiring it to be compatible with the rule of law; it thus implies
that there must be a measure of protection in domestic law against
arbitrary interferences by public authorities with the rights
safeguarded by, inter alia, paragraph 1 of Article 8 (art. 8-1)
(see the Malone judgment of 2 August 1984, Series A no. 82,
p. 32, § 67).
(c) A law which confers a discretion is not in itself inconsistent
with the requirement of foreseeability, provided that the scope of the
discretion and the manner of its exercise are indicated with
sufficient clarity, having regard to the legitimate aim of the measure
in question, to give the individual adequate protection against
arbitrary interference (see the Gillow judgment of 24 November 1986,
Series A no. 109, p. 21, § 51).
62. The Swedish legislation applied in the present case is
admittedly rather general in terms and confers a wide measure of
discretion, especially as regards the implementation of care
decisions. In particular, it provides for intervention by the
authorities where a child's health or development is jeopardised or in
danger, without requiring proof of actual harm to him (see
paragraphs 35 and 37 above).
On the other hand, the circumstances in which it may be necessary to
take a child into public care and in which a care decision may fall to
be implemented are so variable that it would scarcely be possible to
formulate a law to cover every eventuality. To confine the
authorities' entitlement to act to cases where actual harm to the
child has already occurred might well unduly reduce the effectiveness
of the protection which he requires. Moreover, in interpreting and
applying the legislation, the relevant preparatory work (see
paragraphs 36 and 38 above) provides guidance as to the exercise of
the discretion it confers. Again, safeguards against arbitrary
interference are provided by the fact that the exercise of nearly all
the statutory powers is either entrusted to or is subject to review by
the administrative courts at several levels; this is true of the
taking of a child into care, a refusal to terminate care and most
steps taken in the implementation of care decisions (see
paragraphs 44, 45 and 50 above). Taking these safeguards into
consideration, the scope of the discretion conferred on the
authorities by the laws in question appears to the Court to be
reasonable and acceptable for the purposes of Article 8 (art. 8).
63. The Court thus concludes that the interferences in question
were "in accordance with the law".
C. Legitimate aim
64. The applicants submitted that, of the aims listed in
paragraph 2 of Article 8 (art. 8-2), only the "protection of
health or morals" could have justified the decision to take the
children into care, but that their health or morals were not in fact
endangered when it was adopted.
The Commission, on the other hand, considered that the decisions
concerning the care and the placement of the children were taken in
their interests and had the legitimate aims of protecting health or
morals and protecting the "rights and freedoms of others".
65. In the Court's view, the relevant Swedish legislation is
clearly designed to protect children and there is nothing to suggest
that it was applied in the present case for any other purpose. The
interferences in question - intended as they were to safeguard the
development of Stefan, Helena and Thomas - therefore had, for the
purposes of paragraph 2 of Article 8 (art. 8-2), the legitimate
aims attributed to them by the Commission.
D. "Necessary in a democratic society"
66. The applicants maintained that the measures at issue could not
be regarded as "necessary in a democratic society". This submission
was contested by the Government, but accepted by a majority of the
Commission.
1. Introduction
67. According to the Court's established case-law, the notion of
necessity implies that the interference corresponds to a pressing
social need and, in particular, that it is proportionate to the
legitimate aim pursued; in determining whether an interference is
"necessary in a democratic society", the Court will take into account
that a margin of appreciation is left to the Contracting States (see,
amongst many authorities, the above-mentioned W v. the United Kingdom
judgment, Series A no. 121, p. 27, § 60 (b) and (d)).
68. There was considerable discussion during the hearing before
the Court as to the approach to be adopted by the Convention
institutions in resolving the necessity issue.
The Commission's Delegate summarised the approach taken by the
majority of the Commission as being: "to stay ... within the judgments
of the domestic courts and, after making a detailed study of the
relevant judgments, conclude whether or not [their] contents ...
reveal sufficient reasons for taking a child into public care." She
summarised the minority's approach as being: "to stay within the
judgments of the domestic courts and to examine whether the reasons
[therein] seem to indicate that [they] have based themselves on
irrelevant circumstances or that they have applied unacceptable
criteria or standards for the justification of a public-care order.
In essence the question is whether the national court has misjudged
the necessity." The Government favoured the minority's approach,
adding that a wide margin of appreciation should be afforded to the
national authorities so long as there was no reason to believe that
the decisions were not taken in good faith, with due care and in a
reasonable manner.
The approach which the Court has consistently adopted - and from which
it sees no reason to depart on the present occasion - differs somewhat
from those described above. In the first place, its review is not
limited to ascertaining whether a respondent State exercised its
discretion reasonably, carefully and in good faith (see, inter alia,
the above-mentioned Sunday Times judgment, Series A no. 30, p. 36,
§ 59). In the second place, in exercising its supervisory
jurisdiction, the Court cannot confine itself to considering the
impugned decisions in isolation, but must look at them in the light of
the case as a whole; it must determine whether the reasons adduced to
justify the interferences at issue are "relevant and sufficient" (see,
amongst other authorities, mutatis mutandis, the Lingens judgment
of 8 July 1986, Series A no. 103, pp. 25-26, § 40).
69. In concluding that there had been a violation of Article 8
(art. 8), the majority of the Commission based itself on the care
decisions concerning the applicants' children in combination with the
placement of the children in separate foster homes and far away from
the applicants.
In this respect, the Court shares the view of the Government that
these are matters which should be examined separately: the factors and
considerations which are relevant to an assessment of their necessity
may not be the same.
2. The taking of the children into care and the refusals to terminate
care
70. The applicants contended that it was not necessary to take the
children into and maintain them in care; they alleged, inter alia,
that no concrete facts had been established showing that the children
were in danger, that there were no substantiated reasons justifying
the taking into care and that there were no valid motives for refusing
the requests for termination of care.
The Government contested this allegation. The majority of the
Commission, on the other hand, was not convinced that the factual
basis was so grave as to justify the taking into care, although it did
observe that it was "understandable that the care order was not
lifted".
71. Before turning to the substance of this issue, it is
convenient to deal with an initial point. In its above-mentioned
W v. the United Kingdom judgment, the Court held that certain
procedural requirements were implicit in Article 8 (art. 8):
as regards decisions in child-care matters, the parents must "have
been involved in the decision-making process, seen as a whole, to a
degree sufficient to provide them with the requisite protection of
their interests" (Series A no. 121, p. 29, § 64).
The Court agrees with the Commission that this requirement was
satisfied as regards the care decisions themselves. Mr. and
Mrs. Olsson attended a number of case conferences and were present at
the meetings which preceded the Council's decision of
16 September 1980 to take the children into care and its decision
of 1 June 1982 not to terminate care (see paragraphs 10, 11, 12 and 27
above). They also attended hearings before the County Administrative
Court and the Administrative Court of Appeal. Furthermore, they were
legally represented during all the relevant judicial proceedings.
(a) The taking into care
72. In its judgment of 30 December 1980 (see paragraph 13 above),
the County Administrative Court set out the following reasons for
confirming the Council's decision of 16 September 1980 to take the
children into care:
(a) the children had for several years been living in an
unsatisfactory home environment as a result of the parents' inability
to satisfy the children's need of care, stimulation and supervision;
(b) Stefan and Thomas disclosed a clear retardation in their
development and all three children were backward in language
development;
(c) there was a great risk that Helena would develop negatively if
she stayed in the parents' home;
(d) preventive measures had been tried for several years, but without
any resulting improvement;
(e) the health and development of the children were jeopardised as a
result of the parents' present inability to give them satisfactory
care and education.
These reasons are clearly "relevant" to a decision to take a child
into public care. However, it is an interference of a very serious
order to split up a family. Such a step must be supported by
sufficiently sound and weighty considerations in the interests of the
child; as the Commission rightly observed, it is not enough that the
child would be better off if placed in care. In order to determine
whether the foregoing reasons can be considered "sufficient" for the
purposes of Article 8 (art. 8), the Court must have regard to the
case as a whole (see paragraph 68 above) and notably to the
circumstances in which the decision was taken.
73. Prior to the Council's care decision of 16 September 1980, a
number of different social authorities had been individually involved
with the Olsson family; they had co-ordinated their activities in
1979, from which time a psychiatric team had followed the case (see
paragraph 9 above). Various measures had been taken with a view to
assisting the family and a number of case conferences had been held
(see paragraphs 9, 10 and 11 above). It cannot therefore be said that
the authorities intervened without adequate knowledge of the
background.
The Council's decision was based on a substantial report, compiled by
the social administration after the children had been placed in care
for investigation, which concluded that their development was in
danger since they were living in an environment which was
unsatisfactory due to their parents' inability to satisfy their need
for care, stimulation and supervision (see paragraph 12 above). That
report was in turn supported by a number of statements from persons
well acquainted with the case, including a medical report signed not
only by Dr. Bosaeus but also by a psychologist, Helena
Fagerberg-Moss; both were members of a team which was in touch with
the family and the latter had, before the decision to place the
children in care for investigation was taken, seen Helena and Thomas
in order to assess their development and also visited the applicants'
home (ibid.).
It is true that the medical report referred to the applicants' having
been registered as retarded, whereas a subsequent examination revealed
that they were of average intelligence (see paragraphs 9 and 12
above). However, as the Administrative Court of Appeal stated in its
judgment of 16 February 1987 (see paragraph 31 above):
"As far as can be ascertained from the decision to take the Olsson
children into care, the primary reason for this action was not any
alleged mental retardation on the part of Mr. and Mrs. Olsson. The
main reason cited in support of forced intervention was instead the
parents' 'inability to give the children satisfactory care and
upbringing' - in view of Stefan's obviously retarded development, for
instance, and the retarded linguistic development of all the
children."
In addition, as the minority of the Commission pointed out, the County
Administrative Court's judgment of 30 December 1980 was not founded
solely on the documentation that had been before the Council. It had
previously held a hearing, at which Mrs. Olsson and the children were
represented and Dr. Bosaeus was heard as an expert (see paragraph 13
above), and it thus had the benefit of its own personal impression of
the case. This was, moreover, a judgment which was referred on appeal
to both the Administrative Court of Appeal and the Supreme
Administrative Court, without being reversed (see paragraphs 14 and 15
above).
74. In the light of the foregoing, the Court has come to the
conclusion that the impugned decision was supported by "sufficient"
reasons and that, having regard to their margin of appreciation, the
Swedish authorities were reasonably entitled to think that it was
necessary to take the children into care, especially since preventive
measures had proved unsuccessful.
(b) The refusals to terminate care
75. In its judgment of 17 November 1982 (see paragraph 28 above),
the County Administrative Court set out the following reasons for
confirming the Council's decision of 1 June 1982 to refuse the
applicants' request for termination of the care of the children:
(a) on returning to his foster home after visits to his parents,
Stefan had been disturbed in various ways and had relapsed into his
previous negative behaviour; his return trip on 28 June 1982 had
developed in an unfortunate way for him;
(b) the applicants had had difficulties in co-operating with Stefan's
foster home and the Council;
(c) the applicants still showed a lack of comprehension and ability
to give the children satisfactory care and education, so that it had
to be feared that termination of care could at that time involve great
risks for their health and development.
Here again, these reasons are clearly "relevant" to a decision to
maintain a child in care. However, whether they were "sufficient" in
the present case calls for further scrutiny.
76. It has to be recalled that the Council's refusal to terminate
care was based on reports compiled by the social administration which
concluded that the parents were at the time incapable of giving the
children the necessary support and encouragement (see paragraph 27
above). These reports were in turn supported by statements from
persons well acquainted with the case, including the psychologist,
Helena Fagerberg-Moss (ibid.). Above all, on this occasion as well,
the County Administrative Court's judgment - like that of the
Administrative Court of Appeal which confirmed it - was founded not
only on written material but also on a hearing in the presence of the
applicants (see paragraphs 28 and 29 above). And again, the judgment
of the Administrative Court of Appeal was not reversed
(see paragraph 29 above).
It could be thought that the children's favourable development whilst
in care and especially the apparent improvement and stabilising by
1982 of the applicants' situation - both of which were recorded in the
County Administrative Court's judgment - militated against
continuation of care. However, the Court considers that it is
justifiable not to terminate public care unless the improvement in the
circumstances that occasioned it appears with reasonable certainty to
be stable; it would clearly be contrary to the interests of the child
concerned to be restored to his parents, only to be taken into care
again shortly afterwards.
77. In the light of the foregoing, the Court has come to the
conclusion that in 1982 the Swedish authorities had "sufficient"
reasons for thinking that it was necessary for the care decision to
remain in force. Neither has it been established that a different
situation obtained when they subsequently maintained the care decision
until its final reversal on different dates in the first half of 1987
(see paragraphs 30 and 31 above).
3. The implementation of the care decision
78. According to the applicants, the implementation of the care
decision also gave rise to a violation of Article 8 (art. 8). They relied,
inter alia, on the placement of the children separately and at a long
distance from each other and their parents, on the restrictions on and
the conditions of visits and on the conditions in the homes where the
children were placed.
79. In contesting this claim, the Government argued that the
measures relating to the placement of the children had been taken in
good faith, were not unreasonable and were justified by the special
circumstances. They adverted in particular to the following matters:
the fear that the parents might remove the children, as they had
previously done with Stefan (see paragraph 17 above); the desire to
avoid keeping the children in institutions for too long, coupled with
the limited supply of suitable foster homes; the special needs of
Stefan, which led to his being placed with the Ek family whom he
already knew, his subsequent move having been motivated solely by
conflicts between the natural and the foster parents (see paragraph 17
above); the view that, having regard to Helena's inclination "to take
too great a responsibility for her brother Thomas" (see paragraph 12
above) and to the special needs of these two children, it would not
have been realistic or "psychologically appropriate" to place them in
the same foster home; and the last-minute impossibility of fulfilling
the original intention to place these two children in the same village
(see paragraph 19 above).
The Government further submitted that the applicants' previous removal
of Stefan from his home and their attitude of confrontation towards
the foster parents, respectively, justified the initial and the later
restrictions on their access to Helena and Thomas (see paragraph 24
above). They added that Mr. and Mrs. Olsson had in any event not made
full use of their entitlement to visit all three children.
80. The Court finds, like the Commission, that it is not
established that the quality of the care given to the children in the
homes where they were placed was not satisfactory. The applicants'
complaint on this score must therefore be rejected.
81. As for the remaining aspects of the implementation of the care
decision, the Court would first observe that there appears to have
been no question of the children's being adopted. The care decision
should therefore have been regarded as a temporary measure, to be
discontinued as soon as circumstances permitted, and any measures of
implementation should have been consistent with the ultimate aim of
reuniting the Olsson family.
In point of fact, the steps taken by the Swedish authorities ran
counter to such an aim. The ties between members of a family and the
prospects of their successful reunification will perforce be weakened
if impediments are placed in the way of their having easy and regular
access to each other. Yet the very placement of Helena and Thomas at
so great a distance from their parents and from Stefan (see
paragraph 18 above) must have adversely affected the possibility of
contacts between them. This situation was compounded by the
restrictions imposed by the authorities on parental access; whilst
those restrictions may to a certain extent have been warranted by the
applicants' attitude towards the foster families (see paragraph 26
above), it is not to be excluded that the failure to establish a
harmonious relationship was partly due to the distances involved. It
is true that regular contacts were maintained between Helena and
Thomas, but the reasons given by the Government for not placing them
together (see paragraph 79 above) are not convincing. It is also true
that Stefan had special needs, but this is not sufficient to justify
the distance that separated him from the other two children.
The Administrative Court of Appeal, in its judgment of
16 February 1987 (see paragraph 31 above), itself commented as follows
on the applicants' access to Helena and Thomas:
"Of course, the extremely bad relations between Mr. and Mrs. Olsson on
the one hand and Helena and Thomas and their respective foster parents
on the other hand are not due only to the Olssons. However, the
Administrative Court of Appeal considers it strange that the parents'
negative attitude to the foster parents resulted in their not meeting
the youngest children for over two years, nor even showing any
particular interest in talking to the children on the telephone, for
instance. Even if there has been some difficulty for the social
council to assist in establishing better relations - due to the action
of the parents' representative, for instance, and the children's own
attitude - it would have been desirable for the social council to have
been more active and not, for instance, to have limited the right of
access to once every three months."
82. There is nothing to suggest that the Swedish authorities did
not act in good faith in implementing the care decision. However,
this does not suffice to render a measure "necessary" in Convention
terms (see paragraph 68 above): an objective standard has to be
applied in this connection. Examination of the Government's arguments
suggests that it was partly administrative difficulties that prompted
the authorities' decisions; yet, in so fundamental an area as respect
for family life, such considerations cannot be allowed to play more
than a secondary role.
83. In conclusion, in the respects indicated above and despite the
applicants' unco-operative attitude (see paragraph 26 above), the
measures taken in implementation of the care decision were not
supported by "sufficient" reasons justifying them as proportionate to
the legitimate aim pursued. They were therefore, notwithstanding the
domestic authorities' margin of appreciation, not "necessary in a
democratic society".
E. Overall conclusion
84. To sum up, the implementation of the care decision, but not
that decision itself or its maintenance in force, gave rise to a
breach of Article 8 (art. 8).
III. ALLEGED VIOLATION OF ARTICLE 3 (art. 3) OF THE CONVENTION
85. The applicants alleged that they had been victims of a
violation of Article 3 (art. 3) of the Convention, which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
In their view, there had been "inhuman treatment" as a result of:
(a) the taking away of the children without sufficient reason;
(b) the frequent moving of Stefan from one home to another, his
ill-treatment at the hands of the Ek family and his placement in an
institution run by the Board for the Retarded (see paragraph 17
above);
(c) the manner in which, on one occasion, Stefan and Thomas had been
removed, with police assistance, from the applicants' home.
The Government contested these claims.
86. The Commission considered that it had already dealt in its
report, in the context of Article 8 (art. 8), with the essential
issues raised by point (a) and that no separate issue arose under
Article 3 (art. 3). The Court is of the same opinion.
The Court has also already endorsed, in paragraph 80 above, the
Commission's finding that the allegation of ill-treatment of Stefan
was not substantiated. As regards the other matters relied on by Mr.
and Mrs. Olsson in points (b) and (c), these did not, in the Court's
view, constitute "inhuman treatment".
87. There has therefore been no breach of Article 3 (art. 3).
IV. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION
88. The applicants submitted that they had not received a "fair
hearing" in the domestic judicial proceedings and had accordingly been
victims of a breach of Article 6 (art. 6) of the Convention, which,
so far as is relevant, provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal
..."
Apart from the complaints as to the practice of the Swedish courts
(see paragraph 54 above), reliance was placed on their having heard
Dr. Bosaeus as an expert although she had been the Council's expert,
the manner in which they took her evidence and, more generally, their
alleged failure to make proper enquiries about the applicants' mental
health and ability to care for the children.
These claims were contested by the Government and rejected by the
Commission.
89. Dr. Bosaeus was heard by the County Administrative Court on
two occasions: firstly, on 18 December 1980, as an expert (see
paragraph 13 above); secondly, on 4 November 1982, as a witness called
at the request of the applicants' lawyer (see paragraph 28 above).
This doctor was one of the co-signatories of the medical report on
which the Council's care decision of 16 September 1980 had been partly
based (see paragraph 12 above). In a case of this kind, it was
reasonable that, with her extensive knowledge of the background, she
should have been heard as an expert in 1980. This could have rendered
the proceedings unfair only if it were established - which is not the
case - that the applicants had been prevented from cross-examining her
or calling a counter-expert to rebut her testimony.
The complaint concerning the manner in which Dr. Bosaeus' evidence
was taken relates to the 1982 hearing. However, the Court is not
satisfied that the matters cited by the applicants - her presence in
the court-room before she gave evidence and the County Administrative
Court's alleged failure both to remind her of her obligation to tell
the truth and to insist that she answered certain questions - are
sufficient to show that the proceedings were not fair.
90. As for the applicants' more general allegation, they were at
all times represented by a lawyer and were able to submit such
material and arguments as they saw fit. The only exception was the
Administrative Court of Appeal's refusal to accept their request that
Dr. Bosaeus be heard as a witness at its hearing in 1982 (see
paragraph 29 above); however, she had already been heard in the County
Administrative Court.
Viewing the domestic judicial proceedings as a whole, the Court finds
no material to support a conclusion that they were not fair or that
the Swedish courts failed to make due and proper enquiries.
91. There was therefore no breach of Article 6 (art. 6).
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN
TOGETHER WITH ARTICLE 8 (art. 14+8)
92. The applicants asserted that the interferences with their
rights had been based not on objective grounds but on their "social
origin" and that they had therefore been victims of discrimination
contrary to Article 14 of the Convention, taken together with
Article 8 (art. 14+8). The former provision reads as follows:
"The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission found nothing in the case-file to substantiate this
allegation, which was contested by the Government.
93. The Court shares the view of the Commission and therefore
rejects this claim.
VI. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 (P1-2)
94. The applicants submitted that there had been a violation of
the second sentence of Article 2 of Protocol No. 1 (P1-2) to the
Convention, which reads:
"In the exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with their
own religious and philosophical convictions."
They argued that the violation had arisen because:
(a) Thomas had been placed in a family who belonged to a religious
denomination and attended church with him (see paragraph 20 above),
whereas they did not wish their children to receive a religious
upbringing;
(b) the placement of the children so far away from the parents and
without consultation as to the choice of foster home deprived the
latter of the possibility of influencing the former's education.
The Government contested these claims. The Commission rejected the
first and expressed no view on the second.
95. The Court agrees with the Commission that the fact that the
children were taken into public care did not cause the applicants to
lose all their rights under Article 2 of Protocol No. 1 (P1-2).
It notes, however, as did the Commission, that Mr. and Mrs. Olsson,
though describing themselves as atheists, have not left the Church of
Sweden (see paragraph 8 above) and that there is no serious indication
of their being particularly concerned, except at a rather late stage,
with giving the children a non-religious upbringing.
Neither have Mr. and Mrs. Olsson shown that in practice the general
education of the children whilst in public care diverged from what
they would have wished.
96. In these circumstances, no violation of Article 2 of
Protocol No. 1 (P1-2) has been established.
VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, TAKEN
TOGETHER WITH ARTICLE 2 OF PROTOCOL NO. 1 (art. 13+P1-2)
97. The applicants contended that, since no remedy was
available to them in respect of the breach of Article 2 of
Protocol No. 1 (P1-2) allegedly resulting from Thomas' being given a
religious upbringing, they were victims of a breach of Article 13
(art. 13) of the Convention, which provides:
"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."
98. The Court agrees with the Commission and the Government that
this claim has to be rejected. Leaving aside the possibility of
seeking redress before the County Administrative Board, a parent
could, after the entry into force of the 1980 Act, appeal to the
County Administrative Court against a placement decision taken by a
Social Council (see paragraph 50 in fine above). Both before and
after that time, the question of a child's religious upbringing could
have been raised and examined in a request for termination of care
(see paragraph 49 in fine above). There is nothing to suggest that
these remedies, which were apparently not utilised by the applicants
as regards Thomas' upbringing, would not have been "effective", within
the meaning of Article 13 (art. 13).
VIII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
99. Under Article 50 (art. 50) of the Convention,
"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."
The applicants claimed under this provision 30,000,000 Swedish crowns
(SEK) for non-pecuniary damage, together with reimbursement of legal
fees and expenses in the sum of 884,500 SEK. The first-mentioned
amount was, unless the Court could order payment to the applicants
only, to be paid to them and the children in five equal shares.
A. Damage
100. At the Court's hearing, the Government, whilst reserving their
position, indicated that they considered the claim for damage to be
excessive. The Commission's Delegate also found the amount claimed to
be out of proportion; she suggested that a figure of 300,000 SEK would
be reasonable and equitable.
101. The Court considers that, notwithstanding the Government's
reservation, this question is ready for decision (Rule 53 § 1 of the
Rules of Court). It would first observe that it cannot accept the
request, contained in the claims filed by the applicants on
27 July 1987, for an award of just satisfaction to the children: it is
only Mr. and Mrs. Olsson who are applicants in the present
proceedings.
102. The violation of Article 8 (art. 8) of the Convention
found by the Court in the instant case arose solely from the manner in
which the care decision was implemented (see paragraph 84 above). It
follows that the applicants are not entitled to just satisfaction for
that decision and the taking away of the children as such, but only
for the prejudice which they may have suffered on account of the
separation of the children from each other, the placement of Helena
and Thomas at a long distance from the applicants' home and the
restrictions on visits.
There can be no doubt, in the Court's view, that these matters caused
Mr. and Mrs. Olsson considerable inconvenience and, above all,
substantial anxiety and distress. Regular and frequent contacts with
the children were greatly impeded and the possibilities for the whole
family to meet together were minimal. And this situation, with its
deleterious effects on the applicants' family life, endured for some
seven years.
These various factors do not readily lend themselves to precise
quantification. Making an assessment on an equitable basis, as is
required by Article 50 (art. 50), the Court awards Mr. and
Mrs. Olsson together the sum of 200,000 SEK under this head.
B. Legal fees and expenses
103. The applicants' claim for legal fees and expenses, totalling
884,500 SEK, was made up of the following items:
(a) 630,700 SEK for 901 hours' work by their lawyer (at 700 SEK per
hour) in the domestic proceedings and 14,600 SEK for related expenses;
(b) 234,500 SEK for 335 hours' work (at the same rate) in the
proceedings before the Commission and the Court and 4,700 SEK for
related expenses.
The Government contested this claim in several respects, arguing in
particular that: the applicants' statement of the fees and expenses
they had incurred in the domestic proceedings was insufficiently
precise to permit of anything other than an equitable assessment; the
amounts sought in respect of those proceedings related partly to work
on questions that were not material to the case before the Strasbourg
institutions and partly to work that was unnecessary; the hourly rate
charged, though acceptable for the Strasbourg proceedings, was
excessive for the domestic proceedings; and the time spent by the
applicants' lawyer on the Strasbourg proceedings exceeded what was
reasonable. The Government were willing to pay total sums of 290,000
SEK for fees and 12,800 SEK for expenses, subject to a pro rata
reduction in respect of such allegations pursued by Mr.
and Mrs. Olsson before the Court as it might not sustain.
The Commission's Delegate found the amounts claimed to be very high;
she shared many of the observations made by the Government and
considered that the sums they proposed constituted a reasonable basis
for the Court's assessment.
104. An award may be made under Article 50 (art. 50) in respect
of costs and expenses that (a) were actually and necessarily incurred
by the injured party in order to seek, through the domestic legal
system, prevention or rectification of a violation, to have the same
established by the Commission and later by the Court and to obtain
redress therefor; and (b) are reasonable as to quantum (see, amongst
many authorities, the Feldbrugge judgment of 27 July 1987, Series A
no. 124-A, p. 9, § 14).
105. (a) The Court has found that neither the care decision itself
nor its maintenance in force gave rise to a breach of Article 8
(art. 8) (see paragraph 84 above). Accordingly, to the extent - which
was considerable - that the steps taken by the applicants in the
domestic proceedings related to these matters, as distinct from the
implementation of the care decision, no award can be made under
Article 50 (art. 50) in respect of the fees and expenses involved.
Furthermore, some of the costs claimed - for example, those relating
to contacts by the applicants' lawyer with journalists for publicity
in Sweden and abroad and to her investigation of a murder allegedly
committed in the children's home where Stefan was placed - cannot be
regarded as "necessarily incurred". Again, others concerned issues
falling outside the scope of the case before the Court, such as the
prohibition on the removal of Helena and Thomas from their foster
homes (see paragraph 57 above).
(b) As regards the fees and expenses referable to the Strasbourg
proceedings, the Government did not contest that the applicants had
incurred liability to pay sums additional to those covered by the
legal aid which they had received from the Council of Europe (see,
inter alia, the Inze judgment of 28 October 1987, Series A no. 126,
p. 22, § 56). The Court, however, shares the Government's view that
the amount claimed is excessive. It also agrees that the sum to be
awarded should reflect the fact that some substantial complaints by
the applicants remained unsuccessful (see, as the most recent
authority, the Johnston and Others judgment of 18 December 1986,
Series A no. 112, p. 33, § 86).
106. Taking into account the above factors and also the relevant
legal aid payments made by the Council of Europe and making an
assessment on an equitable basis, the Court considers that Mr. and
Mrs. Olsson are together entitled to be reimbursed, for legal fees and
expenses, the sum of 150,000 SEK.
FOR THESE REASONS, THE COURT
1. Rejects unanimously the Government's plea concerning the scope of
the case;
2. Holds by ten votes to five that the decision to take the children
into care and its maintenance in force did not give rise to a
violation of Article 8 (art. 8) of the Convention;
3. Holds by twelve votes to three that there has been a violation of
Article 8 (art. 8) on account of the manner in which the said decision
was implemented;
4. Holds unanimously that there has been no violation of Article 6
(art. 6) of the Convention;
5. Holds unanimously that there has been no violation of Article 3
(art. 3) of the Convention, of Article 14 of the Convention, taken
together with Article 8 (art. 14+8), of Article 2 of Protocol No. 1
(P1-2), or of Article 13 of the Convention, taken together with the
said Article 2 (art. 13+P1-2);
6. Holds unanimously that Sweden is to pay to the applicants
together, for non-pecuniary damage, 200,000 (two hundred thousand)
Swedish crowns and, for legal fees and expenses, 150,000 (one hundred
and fifty thousand) Swedish crowns;
7. 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 24 March 1988.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention
and Rule 52 § 2 of the Rules of Court, the following separate opinions
are annexed to the present judgment:
(a) joint partly dissenting opinion of Mr. Ryssdal, Mr. Thór
Vilhjálmsson and Mr. Gölcüklü;
(b) opinion of Mr. Pinheiro Farinha, Mr. Pettiti, Mr. Walsh,
Mr. Russo and Mr. De Meyer.
Initialled: R.R.
Initialled: M.-A.E.
JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, THÓR VILHJÁLMSSON,
AND GÖLCÜKLÜ
As to the alleged violation of Article 8 (art. 8) of the Convention,
we can subscribe only in part to the finding of the Court.
I. Introduction
The separation of children from their parents through a care decision
taken by a State authority is certainly a serious interference with
family life. In this respect it is important to protect parents and
children against arbitrary intervention. The State concerned must be
able to demonstrate that the views and interests of the parents have
been duly taken into account and that the whole decision-making
process is such as to ensure that the measures adopted are necessary
to safeguard the children's interests.
An important feature of the relevant Swedish legislation is the
possibility of judicial proceedings before the administrative courts
and the competence of those courts to examine fully whether children
should be taken into care and how a care decision should be
implemented.
It is established that different social authorities had been involved
with the Olsson family to a considerable extent prior to the events
giving rise to the present case. There had been continuing and
intensive contacts, including contacts with Mr. and Mrs. Olsson.
Home-therapy had been tried without success. According to the
examination of the facts and evidence conducted by the Social District
Council and the competent domestic courts, the parents were not able
to deal satisfactorily with the children, and in August-September 1980
the latter's needs created some kind of an emergency situation with
the result that the Council considered it necessary to take them into
care.
II. The care decision
We agree with the Court that the decision to take the children into
care and its maintenance in force until 1987 did not give rise to a
violation of Article 8 (art. 8) of the Convention, for the
reasons given in paragraphs 71-74 and 75-77, respectively, of the
judgment. In this context we would emphasise two facts: firstly, the
Council's decision of 16 September 1980 was confirmed by adequately
reasoned judgments of the County Administrative Court
(30 December 1980) and of the Administrative Court of Appeal
(8 July 1981); secondly, the Council's subsequent refusal to terminate
care was confirmed by adequately reasoned judgments of the County
Administrative Court (17 November 1982) and of the Administrative
Court of Appeal (28 December 1982).
III. The implementation of the care decision
Paragraph 78 of the Court's judgment states that the applicants
complained of (i) the placement of the children separately and at a
long distance from each other and their parents; (ii) the restrictions
on and the conditions of visits; and (iii) the conditions in the homes
where the children were placed.
First of all we would like to stress - as the Court has also done -
that there is nothing to suggest that the Swedish authorities did not
act in good faith in implementing the care decision.
As to the last of the complaints listed above, we agree with the Court
that it is not established that the quality of the care given to the
children in the homes where they were placed was not satisfactory.
This complaint must accordingly be rejected.
As to the complaint about the placement, which mainly concerns the
placement of Helena and Thomas far away from Gothenburg, we would
first say that when a care decision - as in the present case - is to
be regarded as a temporary measure, it is generally desirable to place
the children in foster homes that are not far away from their parents'
home. However, in view of Mr. and Mrs. Olsson's conduct in the autumn
of 1980 - their removal and hiding of Stefan -, it was quite
reasonable for the Council to consider that Helena and Thomas could
not be placed in foster homes in the Gothenburg region. It seems
unfortunate that they were placed at so great a distance from
Gothenburg, but it may have been difficult to find foster parents able
and willing to satisfy the special needs of these two children. In
our opinion, the Council's view that it was not appropriate to place
both of them in the same foster home has to be accepted. Moreover, we
are satisfied that the Council did really try to place them in the
same village, but that this became impossible because one of the
chosen families in the end declined to receive the child. In any
event, the national authorities must enjoy a considerable discretion
in this respect, since the decision on such a matter has to be based
on an overall appraisal of a number of facts, including the
availability of suitable foster homes and the needs of the children
taken into care.
As to the restrictions on visits, it should be mentioned that the
County Administrative Court confirmed them on two occasions and that,
after its decision of 3 October 1985, Mr. and Mrs. Olsson withdrew
their appeal on this point in subsequent proceedings before the
Administrative Court of Appeal (see paragraph 24 of the European
Court's judgment). Moreover, they did not make full use of their
entitlement to visit in accordance with the decisions taken and, on
the subject of contacts with the children, their whole attitude seems
to have been rather negative as regards co-operation with the foster
parents and the social authorities (see paragraphs 25 and 26 of the
judgment).
In the particular circumstances of the case and taking into account
the domestic authorities' margin of appreciation, we have come to the
conclusion that the measures taken in implementation of the care
decision could reasonably be considered necessary and proportionate to
the legitimate aim pursued, and that they accordingly did not give
rise to a violation of Article 8 (art. 8) of the Convention.
SEPARATE OPINION OF JUDGES PINHEIRO FARINHA, PETTITI,
WALSH, RUSSO AND DE MEYER
We take the view that the decisions at issue themselves, as well as
their implementation, unjustifiably interfered with the right of the
applicants to respect for their family life.
We feel that it cannot be accepted that children can be taken away
from their parents without a prior judicial decision, save in cases of
emergency.
Moreover, we believe that it has not been shown that in the present
case such a measure was really "necessary in a democratic society".
Back to European Court - Judgements & decisions Tillbaka till Europadomstolen - Domar och beslut Back to Main Tillbaka till huvudsidan