Hudoc reference
REF00000066 Document type Judgment (Merits and just satisfaction) Title ERIKSSON CASE Application number 00011373/85 Date 22/06/1989 Respondent Sweden Conclusion Violation of Art. 8 ; Violation of Art. 6-1 ; Non-pecuniary damage - financial award ; Costs and expenses award - Convention proceedings Published in A156 Keywords Respect for family life ; Prescribed by law ; Protection of health ; Protection of morals ; Protection of the rights and freedoms of others ; Interference ; Necessary in a democratic society ; Fair hearing ; Reasonable time ; Access to court ; Right to education ; Respect for parents' religious convictions ; Effective remedy ; Victim ; Just satisfaction
EUROPEAN COURT OF HUMAN RIGHTS
In the Eriksson case*,
_______________
* Note by the Registrar. The case is numbered 11/1988/144/209.
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, sitting in plenary session
pursuant to Rule 50 of the Rules of Court and composed of the
following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
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,
Mr J. A. Carrillo Salcedo,
Mr N. Valticos,
Mr S. K. Martens,
Mrs E. Palm,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22-23 February and on 22-23 May 1989,
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 September 1988 and by the
Government of the Kingdom of Sweden ("the Government") on
8 November 1988, within the three-month period laid down in
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention
for the Protection of Human Rights and Fundamental Freedoms ("the
Convention"). It originated in an application (no. 11373/85) against
the Kingdom of Sweden lodged with the Commission under Article 25
(art. 25) by a Swedish national, Mrs Cecilia Eriksson, acting on
behalf of herself and of her daughter Lisa Eriksson, on
7 December 1984.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Sweden recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46). The
purpose of the Government's application and of the request was to
obtain a decision from the Court as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under
Articles 6 para. 1, 8 and 13 (art. 6-1, art. 8, art. 13) of the Convention
and under Article 2 of Protocol No. 1 (P1-2).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent them (Rule 30).
3. The Chamber of seven judges to be constituted included ex
officio Mrs E. Palm, the elected judge of Swedish nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 29 September 1988, in
the presence of the Registrar, the President drew by lot the names of
the other five members, namely Mrs D. Bindschedler-Robert,
Sir Vincent Evans, Mr C. Russo, Mr R. Bernhardt and Mr N. Valticos
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5). On 15 December 1988, having consulted - through the
Registrar - the Agent of the Government, the Delegate of the
Commission and the lawyer for the applicants, he decided that there
was no need at that stage for memorials to be filed (Rule 37 para. 1) and
directed that the oral proceedings should commence on 20 February 1989
(Rule 38).
On 16 January 1989 the Registrar received the applicants' claims under
Article 50 (art. 50) of the Convention and certain documents relating
to the domestic proceedings.
5. On 26 January 1989 the Chamber decided to relinquish
jurisdiction forthwith in favour of the plenary Court (Rule 50).
6. The hearing took place 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 L. Lindgren, Legal Adviser,
Ministry of Health and Social Affairs,
Mr C.-H. Ehrencrona, Legal Adviser,
Ministry for Foreign Affairs,
Mrs I. Wetter, Legal Counsel for Lidingö
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 its questions.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. Mrs Cecilia Eriksson and her daughter Lisa Eriksson were born,
respectively, in 1942 and on 24 February 1978 and are both Swedish
citizens. In January 1979 Cecilia Eriksson married Lisa's father and
in January 1981 they also had a son, Jonas. They divorced in
February 1986 and Cecilia was granted the custody of both children.
Since March 1978, Lisa has been living in a foster home at Oskarström.
Her mother resided first in Köttkulla, near Ulriceham, but in 1987 she
moved to Köping.
A. The taking of Lisa Eriksson into public care and her mother's
efforts to have care terminated
8. On 23 March 1978 the Southern Social District Council (södra
sociala distriktsnämnden) of Lidingö ("the Social Council") decided
that Lisa should be taken into care pursuant to sections 25(a)
and 29 of the Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the
1960 Act"; see paragraph 36 below) on the ground that the conditions
in the home were unsatisfactory. She was placed in the foster home at
Oskarström.
At that time the mother, Cecilia Eriksson, had personal difficulties.
She had been convicted for dealing in stolen goods and for possession
of narcotics and sentenced to 14 months' imprisonment. Later, while
in prison, Cecilia Eriksson went through a religious conversion and
she is now a member of the Philadelphia congregation (Pentecostal
movement).
9. In May 1980 the Social Council rejected an application by
Cecilia Eriksson for the termination of the care of her daughter. Her
appeal to the County Administrative Court (länsrätten) of Stockholm
was dismissed on 22 October 1981 as was, on 11 March 1982, her further
appeal to the Administrative Court of Appeal (kammarrätten) of
Stockholm.
10. On 1 January 1982 the public care of Lisa under the 1960 Act
was transformed into care pursuant to section 1(1) of the 1980 Act
containing Special Provisions on the Care of Young Persons (lagen
1980:621 med särskilda bestämmelser om vård av unga - "the 1980 Act";
see paragraph 36 below).
11. In March 1982 Cecilia Eriksson again applied to the Social
Council requesting that care be terminated. She also requested
permission to meet Lisa in her home in Köttkulla. Both requests were
rejected and Cecilia Eriksson appealed to the County Administrative
Court.
On 3 November 1982 the court dismissed the appeal concerning the
question of care since there had not been sufficient preparatory
contacts between Lisa and her natural parents; it referred the access
question back to the Social Council for reconsideration. Cecilia
Eriksson appealed to the Administrative Court of Appeal.
B. The termination of the public care - the prohibition on removal
and the regulation of access
12. However, on 21 January 1983 the Social Council found that
there were no longer any reasons for care under the 1980 Act and
decided:
(a) that, with effect from 15 February 1983, the care of Lisa should
terminate in accordance with section 5(1)(a) of the 1980 Act;
(b) to prohibit until further notice, pursuant to section 28 of the
Social Services Act 1980 (socialtjänstlagen 1980:620; see paragraph 42
below), the natural parents from removing Lisa from the foster home
(flyttningsförbud);
(c) to request recommendations from the Children's and Juveniles'
Psychiatric Clinic (barn- och ungdomspsykiatriska kliniken - "the
Psychiatric Clinic") of Halmstad as to the contacts between Lisa and
the natural parents, against the background that the long-term aim of
the Social Council was that Lisa should return to the latter's home;
(d) that the said recommendations should also contain the Psychiatric
Clinic's view on a proposal that Lisa should stay with her natural
parents during the summer holiday period;
(e) that the contacts between the natural parents and Lisa should
consist of one meeting before 1 March 1983, at which at least one of
the foster parents and also one other person should be present.
The prohibition on removal was based on, inter alia, five medical
certificates from the Psychiatric Clinic, signed by Mrs Essving-Levay,
registered physician, and Mrs Gulli Tärn, curator. According to these
certificates, Lisa was deeply rooted in the foster home and her
transfer to her natural parents' home would jeopardise her mental
health and development.
13. In these circumstances the Administrative Court of Appeal
found no reason to examine the case further (see paragraph 11 above).
14. On 24 February 1983 the Psychiatric Clinic, in a new medical
certificate signed by the same persons, recommended access once every
second month. The certificate also stated that it was too early for
Lisa to stay with her natural parents during the summer. The
recommendations were based on the assessment that the child ought to
stay with the foster parents and not be moved to her natural parents
in the near future.
On 31 March 1983 the Social Council decided that Cecilia Eriksson
should have a right of access to Lisa in the foster home every second
month.
C. First set of proceedings challenging the prohibition on removal
15. Cecilia Eriksson, represented by legal counsel, appealed to
the County Administrative Court of Stockholm against the Social
Council's decision to issue a prohibition on removal, claiming that it
should be quashed or, in the alternative, limited in time. The court
held a hearing on 13 September 1983, when evidence was given by
Mrs Essving-Levay, by Lisa's natural father and by an expert from the
County Administrative Board (länsstyrelsen - "the Board"). The Board
had also submitted a written opinion, which contained the following
passage:
"The [Board] considers that Lisa should remain in the foster home.
This proposal is, in the Board's opinion, in line with the intentions
of section 28 of the Social Services Act concerning prohibition on
removal. Lisa has at present enough difficulty in living with the
knowledge that she is not the foster parents' own child and with the
threat that she may be forced at any time to leave the only security
she knows. Experience shows that, when Lisa grows older, she will
become more curious concerning her natural parents and her own origin.
Only then will she be mature enough to take the first steps towards
reunification. The [Board] considers that, until then, a removal to
the natural parents would be in conflict with the child's best
interest."
16. The Social Council submitted to the County Administrative
Court a further medical certificate from the Psychiatric Clinic. This
certificate, dated 7 September 1983 and signed by the same persons as
the previous ones, stated, inter alia, that it was self-evident that
Lisa must stay in the foster home and that her removal would involve a
risk for her mental health which was not of a minor nature.
17. On 10 October 1983 the County Administrative Court allowed the
appeal in part, in that it set a time-limit of 31 March 1984 on the
prohibition on removal. The court's reasons read, inter alia, as
follows:
"The natural parents' contacts with Lisa have become more regular only
during the last two years, with the assistance of, among others,
Mrs Essving-Levay. Thus, in 1982 there were meetings between Lisa and
the parents in June and in August at Halmstad, in September at
Köttkulla and in November at Oskarström. Lisa met her mother on some
occasions during 1983, the latest being on 25 August, when the
brother, Jonas, also accompanied the mother to Oskarström. What has
been established about the circumstances surrounding the meetings
suggests that Cecilia Eriksson's behaviour is probably not the only
reason for their not having been more frequent. The foster parents
and also the attitudes of other persons involved in the question of
Lisa's removal have probably had an important influence. In several
written opinions and at the court's oral hearing, Mrs Essving-Levay
has expressed the opinion that the child-psychiatric treatment of Lisa
has had, as its main objective, not the promotion of Lisa's immediate
removal but instead an improvement of the contacts between her and the
natural parents. At the same time it has been made clear that the
psychiatric treatment of Lisa takes as its starting point
Mrs Essving-Levay's opinion that Lisa should remain in the foster
home. Finally, it should be mentioned that the [Social Council], in
connection with the decision under appeal, stated that Lisa's removal
should be the long-term aim for its work in the matter.
Lisa has lived in the foster home since shortly after her birth.
Obviously she has now, at the age of five years, strong roots in this
home. She has met her natural parents but rarely. A removal of Lisa
to the natural parents must therefore be presumed to involve
considerable risks for her health. However, it has been established,
inter alia through Mrs Essving-Levay's testimony, that Lisa is a
normally developed five-year-old girl who intellectually is rather
over than under the average level. This and the other circumstances
make it sufficiently probable that a removal of Lisa - in any case
after certain further preparatory contacts with the natural parents -
will entail no more than a passing disturbance in her development.
The County Administrative Court has therefore finally concluded in the
case that the decision appealed against should be limited in
accordance with Cecilia Eriksson's second motion. As a result the
prohibition on removal may, during a clearly limited period, be used
in order to build up further the relations between Lisa and her
parents."
18. The Social Council appealed to the Administrative Court of
Appeal of Stockholm, requesting that the prohibition be unlimited in
time. Cecilia Eriksson, represented by legal counsel, submitted that
the prohibition should be quashed or, in the alternative, that the
judgment of the County Administrative Court should be confirmed.
19. The Administrative Court of Appeal held a hearing at which
Mrs Essving-Levay and Lisa's foster mother gave evidence. At the
court's request, the National Board of Health and Welfare
(socialstyrelsen) submitted, on 13 February 1984, its opinion on the
risks that would be involved if Lisa were removed from the foster
home. The opinion stated, inter alia:
"As regards the assessment from a child-psychiatric point of view, it
is noted that the [Psychiatric Clinic] has clearly expressed the view
that Lisa should not be removed from the foster home. This view is,
in the opinion of the National Board of Health and Welfare,
well-founded, as it is based on knowledge of the development and needs
of children applied to Lisa's special situation.
It is the opinion of the National Board of Health and Welfare that a
change of the persons responsible for the upbringing of a child always
constitutes a serious interference and should not take place unless
there are strong reasons, for instance that the child is badly cared
for where it is living. Child psychological research and clinical
experience demonstrate that separations can imply a risk of serious
mental harm to the child. In this case Lisa, who is now six years
old, has lived since a very young age in the present foster home,
where she has developed well together with the adults to whom she is
attached. She is in an important phase of development and has not yet
attained the age and maturity where she can decide for herself. She
ought not to be placed in a situation of choice of this kind. There
are no established contacts with the natural parents, despite the
efforts which have been made. The documents reveal that the father
has not participated in the meetings with the foster parents which
were arranged during 1983. He has not seen Lisa since 1982.
In this case new facts have come to light which change the picture of
the parents' home. [The documents received from the court] showed
only that the rehabilitation of the parents has developed well. A
telephone conversation with the social director of Ulriceham
on 17 January 1984 disclosed that the father had lost his temporary
job and had started to drink alcohol again. He has been convicted of
drunken driving and lost his driving licence. The mother's post as a
child-minder is temporary, while the usual employee is on maternity
leave. However, no criticism is levelled against the mother as
regards her work.
The assessment of the National Board of Health and Welfare, against
the background of the facts of this case, is that Lisa will, if moved
from the foster family, be subjected to a risk, which is not of a
minor nature, of harm to her psychological health and development. It
is therefore important that she can remain in the foster home. The
Board finds that section 28 of the Social Services Act is applicable.
However, it considers that Lisa's security from a legal point of view
should be regulated for the future. The [Social Council] should
therefore, in view of the changed conditions in the natural parents'
home, investigate whether the [1980 Act] has become applicable again.
The [Social Council] could also consider the possibility of requesting
a transfer of custody to the foster parents under Chapter 6,
section 8, of the Parental Code [föräldrabalken; see paragraph 50
below]."
20. On 6 March 1984 the Administrative Court of Appeal amended the
judgment of the County Administrative Court by setting the time-limit
for the prohibition on removal at 30 June 1984. Its reasons included
the following:
"The investigation in the case has revealed nothing which gives reason
to doubt that Cecilia Eriksson is well suited to take care of
children. Lisa's younger brother Jonas lives in Cecilia's home where,
as a municipal child-minder, she also takes care of a further child.
In its decision of 31 March 1983 the [Social Council] decided that
Cecilia Eriksson should have a right of access to Lisa in the foster
home every second month. At the hearing before the Administrative
Court of Appeal, it appeared that one or more representatives of the
[Social Council] had been present on these sporadic occasions of
contact decided by the Council, that Cecilia Eriksson had never been
given the opportunity on these occasions to be alone with Lisa and
that the foster mother had not considered that the time was yet ripe
to inform Lisa that it was her mother who was visiting the foster
home. Cecilia Eriksson has not so far been allowed to meet Lisa in
her own home.
The Administrative Court of Appeal makes the following assessment.
More than one year has elapsed since the [Social Council] decided that
the care under the [1980 Act] should terminate and that it should
promote the reunification of Lisa and her natural parents. The
investigation of the case does not suggest that Cecilia Eriksson has
not accepted the [Social Council's] directives regarding her access to
Lisa during this period. The Administrative Court of Appeal finds
that what the [Social Council] has done so far, by way of preparatory
measures for the removal of Lisa, has obviously not been calculated to
promote to any measurable extent the conditions for such a
reunification. The situation today as regards the child's removal to
the parents can be regarded as no different from what it was one year
ago. Lisa still does not even know that it is her mother who visits
her in the foster home. According to the information supplied to the
Administrative Court of Appeal at the hearing, the antagonism which
the County Administrative Court found to exist between the foster
mother and Cecilia Eriksson still prevails. This antagonism is
however, in the opinion of the [court], not necessarily an absolute
obstacle to active preparatory measures for the child's transfer.
It is undisputed that a transfer of Lisa to the parents' home without
preparatory measures must be presumed to carry considerable risks for
her health. Cecilia Eriksson has declared that she is well aware of
these risks and that she does not wish to take the child home for good
until this can be done without any risk of harming her. Making an
overall assessment of what has been established in the case, the
Administrative Court of Appeal nevertheless finds that there are
reasons for a temporary prohibition on removal. In view of what has
been established, it is reasonable to limit the prohibition on removal
in time. The preparatory measures which have been taken until now
have, as far as it appears, not been such that the child can be
removed within the time-limit prescribed by the County Administrative
Court. The Administrative Court of Appeal - which assumes that the
[Social Council], in pursuing its aim of reuniting the child and the
natural parents, will as soon as possible try new possibilities and
intensify its work in this respect - finds that some more time for
preparatory measures is necessary before the prohibition on removal
can be lifted."
21. Both Cecilia Eriksson, with the assistance of legal counsel,
and the Social Council appealed to the Supreme Administrative Court
(regeringsrätten). The mother later withdrew her appeal.
22. In its judgment of 11 October 1984 the Supreme Administrative
Court allowed the appeal by the Council by confirming the latter's
decision of 21 January 1983 that the prohibition should be valid until
further notice.
The court gave the following reasons:
"Under section 28 of the Social Services Act, the Social District
Council may, where the interests of the child so require, prohibit the
guardian from removing a child from a foster home, provided that there
is a risk, which is not of a minor nature, of harming the child's
physical or mental health if it is moved from the home. When a child
is placed in a foster home, the aim should normally be to reunite the
child and his parents. A prohibition under section 28 of the Social
Services Act ought to be regarded as a temporary measure pending the
arrival of an appropriate moment for moving the child from the foster
home without the risk of such detrimental effects as are indicated in
the said section.
The circumstances to be considered when deciding on a prohibition on
removal include the child's age, stage of development, character and
emotional relations; the time he has been taken care of by someone
other than his natural parents; his present and prospective living
conditions; and the contacts between the parents and the child whilst
they were separated.
Since Cecilia Eriksson has withdrawn her appeal against the judgment
of the Administrative Court of Appeal, the Supreme Administrative
Court must determine whether the prohibition on removal should remain
in force until further notice, as claimed by the [Social Council], or
should be limited in time, in accordance with the position adopted by
the [mother].
The question of the duration of a prohibition on removal must be
examined in the light of the existing risk to the child's physical or
mental health if separated from his home. If, at the time the
prohibition is issued, it is already considered, with sufficient
certainty, that such a risk will not obtain after a certain date - by
when certain steps may have been taken or produced their effects -,
the prohibition ought to be limited until that date. However, if it is
uncertain when the child could be transferred to the parents without
this involving a risk which is not of a minor nature, the prohibition
ought to be in force until further notice and the question of a
transfer ought to be raised again at a later stage when the risk of
harming the child's health can be better assessed. Irrespective of
the duration of the prohibition, the [Social Council] is obliged to
see to it that appropriate measures aimed at reuniting parents and
child are taken without delay. Such measures are required in
particular when the Council, in accordance with what has just been
said, has found reasons for issuing a prohibition until further
notice. Otherwise there is a great risk that the child will, in the
meantime, become more closely linked to the family he is about to
leave.
The efforts to establish contacts between Lisa and her natural
parents, which already began some three years ago, have, as far as can
be seen from the documents, not progressed beyond the point that Lisa
has occasionally seen them together with her present family and
generally - as a result of the [Social Council's] directives - also in
the presence of an adult outsider. The meetings have been coloured by
the antagonism between the adults of the two families, and both before
and afterwards, Lisa, who appears to have realised only at a late
stage who her natural parents are, has shown signs of anxiety and a
psychological state of strain. The evidence concerning the intensity
of Lisa's reactions clearly shows that a period of time longer than
that decided by the lower courts is required before a transfer can be
made. Since appropriate measures aimed at reunification have not yet
been taken there is, at the moment, no basis for setting a date on
which the transfer could be made without jeopardising Lisa's mental
health. The prohibition on removal shall therefore remain in force
until further notice."
D. Second set of proceedings challenging the prohibition on removal
23. On 28 November 1984 Cecilia Eriksson requested the Social
Council that her child be returned to her custody. This request was
dismissed on 18 January 1985 on the ground that the risk for the
child's mental health resulting from a removal from the foster home
would be the same as when the Supreme Administrative Court delivered
its judgment of 11 October 1984 (see paragraph 22 above).
24. The mother appealed to the County Administrative Court. She
requested that the prohibition on removal be quashed and that the
child be returned to her in accordance with the rules laid down in
Chapter 21 of the Parental Code (see paragraphs 46-49 below).
On 8 October 1985 she withdrew her appeal and, as a result, the court
struck the case off its list on 23 October.
25. According to Cecilia Eriksson, her reason for withdrawing was
the following. The Social Council had informed her through a private
team of psychologists, to which the Council had turned in January 1985
to solve the question of her contacts with Lisa, that as long as she
continued to bring proceedings in the matter she would not be able to
meet her daughter alone, but that this would be possible - at certain
weekends - if she withdrew her action. As she knew that one condition
for her being reunited with her child was that they got to know one
another, she abandoned the appeal.
The Government dispute these affirmations. According to them, Cecilia
Eriksson herself, in a telephone conversation with a social welfare
officer on 7 November 1985, denied that she was given any such
information and stated that her counsel had "exaggerated a lot" when
describing the situation as something similar to blackmail. The
Government concede, however, that the psychologists had explained to
Cecilia Eriksson that meetings would be facilitated if Lisa was not
faced with the threat of being forced to move to her mother as a
result of the proceedings pending before the courts.
E. The Social Council's refusal to decide the question of access
26. On 6 August 1985, prior to withdrawing her appeal,
Cecilia Eriksson lodged with the Social Council a request for access
to the child every second weekend. On 16 August the Council decided
"not to decide at present on the access and the frequency of access".
It noted that it could not indicate any avenues of appeal since there
was no legal provision on which a decision on access could be based.
F. Third set of proceedings challenging the prohibition on removal
27. On 15 January 1987 Cecilia Eriksson made a fresh request to
the Social Council that the prohibition on removal be lifted.
On 13 March 1987 the Council decided to investigate the consequences
for Lisa of such a course.
28. On 21 May 1987 the Psychiatric Clinic sent to the Social
Council a report signed by Mrs Essving-Levay and by a registered
psychologist, Mrs Anne Christiansson. It contained the following
passage:
"How will Lisa react to a possible removal to Cecilia, in our opinion?
She will regress. There is a great risk that the regression will go
so far that she loses contact with reality, i.e. becomes psychotic, a
state which is extremely difficult to treat and is very likely to
become permanent. Inter alia, she will withdraw within herself and
will not adapt herself to the world around her. She will not be able
to go to school since she will be preoccupied by her inner anxieties
and chaos. She will perceive her removal from her foster parents as
very treacherous on their part. In making this pessimistic
assessment, we base ourselves on material and reactions which came to
light during Lisa's therapy. Lisa is weak, lacking in confidence and
does not have adequate mental resources to cope with separation. The
conversations that we have had with her this year have been of a
horrifying nature. She says that she does not want to live if she has
to move to Cecilia. For many years she has lived in fear of being
taken away from her home by Cecilia.
In our opinion Lisa must be able to stay in her foster home for good.
If Lisa is to be separated from her home and moved to Cecilia, there
is a risk, which is not of a minor nature, that Lisa's mental health
will be irrevocably harmed; in addition there is a risk for her life."
29. On 5 June 1987 the Social Council decided not to lift the
prohibition on removal. Cecilia Eriksson appealed to the County
Administrative Court of Stockholm. Her appeal was accompanied by an
application for an immediate transfer of Lisa to her pursuant to
Chapter 21, section 7, of the Parental Code (see paragraph 49 below).
30. The County Administrative Court held a hearing on
26 August 1987 after which it decided to appoint as its expert
(sakkunnig) a psychologist who had not taken part in the earlier
investigations. The decision of the court contained the following
observations:
"The court's problem is that the law in force does not quite reflect
the latest fundamental principles which are generally recognised
within medical and behavioural sciences, namely that a child in Lisa's
situation should never be transferred to his or her parent even if
that parent is the child's guardian. The true meaning of the law,
especially as interpreted in certain decisions of higher courts, is
that there is a very high level of tolerance regarding the suffering
and the risks to which a child can be exposed when being transferred
to its parent in order to let the parent have access to the child or
in order for the child to be definitely transferred to the parent.
These levels can be lowered if the risks for the child's future health
and development after reunification are considered serious and/or
likely to subsist for a considerable time. This legal assessment also
has to take into account the child's state of health before the
reunification. The court feels that it would be correct to say that
the parents' right to bring up and take care of their children
themselves is still recognised by the law in force to a larger extent
than by modern medical and behavioural sciences, which have concern
for the child's well-being as sole guideline. When examining the case
the court therefore has to strike a balance between Cecilia Eriksson's
right to be with Lisa and to bring her up and the risks involved
regarding Lisa's future health and development if Cecilia Eriksson's
legitimate demands are met."
31. Both the appeal concerning the prohibition on removal and the
application under the Parental Code were dismissed by the County
Administrative Court on 15 June 1988.
In its judgment the court stated, inter alia:
"In the opinion of the court, it is evident that high demands must be
placed on the Social District Council when it comes to taking measures
to facilitate meetings between Cecilia and Lisa in order to prepare
the ground for a reunification. It is therefore no excuse that the
contacts between the persons involved, the authorities and the
personnel giving treatment, have been strained. Passivity is, by way
of example, shown by the fact that the Council has taken no measure in
view of the deteriorating relations between Cecilia Eriksson and
Söderling-Gard [a family consultant engaged by the Social Council].
Söderling-Gard has expressed the opinion that Cecilia Eriksson should
never get Lisa back and she has been engaged to convince Cecilia
Eriksson of that ...
It is remarkable that the Council did not in these circumstances,
which must have been obvious to it for a long time, take any measures
to ensure that Söderling-Gard would either act herself in accordance
with the judgment of the Supreme Administrative Court or otherwise
engage someone else in order to ensure that this was effectively done.
The Council has not taken active measures, as intended, to promote
access and reunification effectively. By not doing so the Council
has, on the contrary, contributed to reducing the possibilities of
lifting the prohibition on removal. The Council has rather, by its
relative passivity, achieved the result that the prohibition on
removal has become self-fulfilling."
32. An appeal by Cecilia Eriksson against the judgment of the
County Administrative Court to the Administrative Court of Appeal was
dismissed in a judgment of 31 October 1988. On 9 December 1988 the
Supreme Administrative Court rejected her application for leave to
appeal against the latter judgment.
G. The request for a transfer of custody to the foster parents
33. The Social Council introduced an action before the District
Court (tingsrätten) of Sjuhäradsbygden requesting that the custody of
Lisa be transferred to the foster parents pursuant to Chapter 6,
section 8, of the Parental Code (see paragraph 50 below). The court
held a hearing on 10 October 1987, after which it ordered that the
competent Social Council should submit an opinion. The court also
rejected the Social Council's request for an interim order, pending
the final judgment, that the custody of the child be transferred to
the foster parents.
H. Particulars concerning the contacts between the applicants
34. A total of eight meetings took place between Cecilia Eriksson
and Lisa between 1978, when Lisa was taken into public care, and 1983,
when the care was terminated.
35. Thereafter and up to September 1987, mother and daughter have
met on 29 (according to the Government) or 25 (according to
Cecilia Eriksson) different occasions, as follows: six in 1983, five
in 1984, five in 1985, nine in 1986 and at least four in 1987
(according to the Government). Cecilia Eriksson has alleged that of
these meetings only four, lasting two hours each, have not been
supervised by the foster parents and/or social welfare officers.
II. RELEVANT DOMESTIC LAW
A. The Social Services Act 1980 and the 1980 Act containing Special
Provisions on the Care of Young Persons
36. From 1 January 1982 the basic rules on public responsibility
for young persons are laid down in the Social Services Act. This Act
contains provisions regarding supportive and preventive measures taken
with the approval of the individuals concerned. Decisions which had
been taken under the previous legislation, the 1960 Act, and which
were still in force on 31 December 1981, were considered to be
decisions taken under the new legislation, whether it be the Social
Services Act or the 1980 Act.
1. Compulsory care
37. Where the parents do not give their consent to the necessary
measures, compulsory care may be ordered under the 1980 Act.
Section 1, paragraphs 1 and 2, of this Act read:
"Care is to be provided pursuant to this Act for persons under
eighteen years of age if it may be presumed that the necessary care
cannot be given to the young person with the consent of the person or
persons having custody of him and, in the case of a young person aged
fifteen or more, with the consent of the young person.
Care is to be provided for a young person if
1. lack of care for him or any other condition in the home
entails a danger to his health or development, or
2. the young person is seriously endangering his health or
development by abuse of habit-forming agents, criminal activity or any
other comparable behaviour."
38. It is primarily the responsibility of the municipalities to
promote a positive development for the young. For this purpose each
municipality has a Social District Council, composed of lay members
assisted by a staff of professional social workers.
39. If the Social Council deems it necessary to take a child into
care, the 1980 Act specifies that the Council has to apply to the
County Administrative Court for a decision to this effect. Decisions
by the County Administrative Court may be appealed to the
Administrative Court of Appeal. A further appeal lies to the Supreme
Administrative Court if it grants leave.
40. Once a decision on public care has been taken, the Social
Council has to execute the decision, take care of the practical
details of where to place the child, what education and other
treatment to give him, etc. The law requires the care of the child to
be carried out in such a way as to enable him to have close contact
with his relatives and to be able to visit his home. This requirement
may mean that the child returns to his home, after a period, to live
there, although he is still formally under public care.
The Social Council may, under section 16 of the 1980 Act, regulate
visits to and by parents and also decide not to disclose the
whereabouts of the child to them. Such decisions may be appealed to
the administrative courts by both the parents and the child.
41. According to section 5 of the 1980 Act, the Social Council is
obliged to monitor carefully the care of young persons who are in care
under the Act and "shall decide to terminate care under the Act when
such care is no longer necessary".
2. Prohibition on removal
42. The Social Council may issue a prohibition on removal under
section 28 of the Social Services Act, which reads as follows:
"The Social Council may for a certain period of time or until further
notice prohibit the guardian of a minor from taking the minor from a
home referred to in section 25 [i.e. a foster home], if there is a
risk, which is not of a minor nature, of harming the child's physical
or mental health if separated from that home.
If there are reasonable grounds to assume that there is such a risk,
although the necessary investigations have not been completed, a
temporary prohibition may be issued for a maximum period of 4 weeks,
pending the final decision in the matter.
A prohibition issued under this section does not prevent a removal of
the child from the home on the basis of a decision under Chapter 21 of
the Parental Code."
The Government Bill mentioned that a purely passing disturbance or
other occasional disadvantage to the child was not sufficient ground
for issuing a prohibition on removal (1979/80:1, page 541). It stated
that the factors to be considered when deciding whether or not to
issue such a prohibition included the child's age, degree of
development, character, emotional ties and present and prospective
living conditions, as well as the time he had been cared for away from
the parents and his contacts with them while separated. If the child
had reached the age of 15, his own preference should not be opposed
without good reasons; if he was younger, it was still an important
factor to be taken into account.
The Standing Social Committee of the Parliament stated in its report
(SOU 1979/80:44, p. 78), inter alia, that a prohibition might be
issued if removal could involve a risk of harm to the child's physical
or mental health, thus even where no serious objections existed in
regard to the guardian. The Committee also stressed that the
provision was aimed at safeguarding the best interests of the child
and that those interests must prevail whenever they conflicted with
the guardian's interest in deciding the domicile of the child. It
also took as its point of departure the assumption that a separation
generally involved a risk of harm to the child. Repeated transfers
and transfers which took place after a long time, when the child had
developed strong links with the foster home, should thus not be
accepted without good reasons: the child's need for secure relations
and living conditions should be decisive.
43. Section 28 does not apply to children who are being cared for
in foster homes under section 1 of the 1980 Act. As long as such care
continues, the right of the guardian to determine the domicile of the
child is suspended. Whilst that right in principle revives on the
termination of such care, it may be further suspended by an
application of section 28 by the social authorities.
44. Under section 73 of the Social Services Act, a decision taken
under section 28 may be appealed to the administrative courts. In
practice, besides the natural parents both the child concerned and the
foster parents have been allowed to lodge such appeals. In the
proceedings before the administrative courts, a special guardian may
be appointed to protect the interests of the child, should these come
into conflict with those of the child's legal guardian.
45. In a recent decision (no. 2377 of 18 July 1988), the Supreme
Administrative Court held that a decision by the Social Council to
restrict the access rights of the appellants, Mr and Mrs Olsson, while
a prohibition on removal under section 28 of the Social Services Act
was in force had no legal effect and that no appeal to the
administrative courts would lie against such a decision. The court
stated:
"Under section 16 of the [1980 Act] ..., a Social Council may restrict
the right of access in respect of children taken into public care
under this Act. As regards the right of access to children while a
prohibition on removal is in force, no similar power has been vested
in the Social Council in the relevant legislation. As there is no
legal provision giving the Social Council power to restrict the right
of access during the validity of the prohibition on removal ..., the
instructions given by the President of the Social Council in order to
limit the right of access have no legal effect. Nor can any right of
appeal be inferred from general principles of administrative law or
from the European Convention on Human Rights."
B. The Parental Code
46. Chapter 21 of the Parental Code deals with the enforcement of
judgments or decisions regarding custody and other related matters.
47. Section 1 specifies that actions for the enforcement of
judgments or decisions by the ordinary courts concerning the custody
or surrender of children or access to them are to be instituted before
the County Administrative Court.
48. According to section 5, enforcement may not take place against
the will of a child who has reached the age of 12 unless the County
Administrative Court finds enforcement to be necessary in the child's
best interests.
49. Under section 7, if the child is staying with someone other
than the holder of custody, the child's custodian may, even when no
judgment or decision as described in section 1 exists, seek from the
County Administrative Court an order for the transfer of the child to
him. Such an order may be refused if the best interests of the child
require that the question of custody be examined by the ordinary
courts.
When taking decisions under this section, the County Administrative
Court shall also observe the requirements laid down in section 5
(see paragraph 48 above).
50. Under Chapter 6 of the Parental Code, the Social Council may,
in certain cases, request the ordinary courts to transfer custody from
the child's parents to the persons who are in fact taking care of the
child. Section 8 of this Chapter reads:
"If a child has been permanently cared for and brought up in a private
home other than its parental home and if it is obviously in the best
interest of the child that the prevailing relationship may continue
and that custody be transferred to the person or persons who have
received the child or to one of them, the court shall appoint the said
person or persons to exercise custody of the child as specially
appointed guardians."
Such a transfer of custody is, apart from adoption, the most severe
measure available against the natural parents. Although they retain
certain rights and obligations, such as the right of access and the
obligation to pay maintenance, their legal position as guardians is
definitively transferred to the foster parents.
51. A report (SOU 1986:20) from the Social Commission
(socialberedningen), appointed by the Government, has proposed that
there be a co-ordination between compulsory care and prohibition on
removal in order to avoid a duplication of procedures. A similar
proposal has been made in a report (Ds S 1987:3) submitted in
April 1987 by a special investigator appointed by the Government.
PROCEEDINGS BEFORE THE COMMISSION
52. In their application of 7 December 1984 to the Commission
(no. 11373/85), Mrs Cecilia Eriksson and her daughter Lisa alleged
violations of Articles 6 para. 1, 8 and 13 (art. 6-1, art. 8, art. 13)
of the Convention and of Article 2 of Protocol No. 1 (P1-2). They also
complained that, contrary to Article 25 (art. 25) of the Convention, the
exercise of their right to petition the Commission had been hindered
as a result of the domestic authorities' decision not to grant legal
aid for the purpose of bringing the application before the Commission.
53. On 11 May 1987 the Commission declared the application
admissible although it decided to take no action with respect to the
complaint under Article 25 (art. 25).
In its report of 14 July 1988 (Article 31) (art. 31), the Commission
expressed the opinion:
(a) by eight votes to two, that there had been a breach of
Article 6 para. 1 (art. 6-1) of the Convention in respect of the claim for
access to Lisa (see paragraph 26 above);
(b) by nine votes to one, that the rights of both applicants under
Article 8 (art. 8) of the Convention had been violated;
(c) unanimously, that there had not been a violation of the
Convention or Protocol No. 1 as regards the remaining complaints.
The full text of the Commission's opinion and of the dissenting
opinion and the concurring opinion contained in the report is
reproduced as an annex to this judgment.
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, in particular
the 1980 Act in combination with section 28 of the Social Services
Act, 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. Its task is accordingly not to review the aforesaid legal
provisions and practice in abstracto, but to determine whether the
manner in which they were applied to or affected Mrs Eriksson and her
daughter Lisa gave rise to a violation of the Convention.
55. The Court notes that no complaint was raised before it as
regards the initial decision to take Lisa into public care or its
implementation.
II. THE MOTHER'S COMPLAINTS
A. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
56. Mrs Eriksson alleged that the decision to prohibit her for an
indefinite period from removing her daughter from the foster home, the
maintenance in force of this prohibition for more than six years, the
restrictions imposed on her access to the child and the Social
Council's failure to reunite the applicants violated 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."
The Government contested this allegation whereas the Commission
accepted it.
1. Existence of interferences
57. The Government accepted that the issuing and maintenance in
force of the prohibition on removal constituted an interference with
the mother's right to respect for her family life. Nevertheless, they
pointed out that if a decision had been taken to reunite Lisa with her
mother following the lifting of the care order in January 1983, this
could have been regarded as an interference with Lisa's right to
respect for her family life with the foster family.
The measures taken after the lifting of the care order, notably the
restrictions imposed on the mother's access to her daughter, did not,
in the Government's view, amount to a separate interference.
58. 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 has been taken into public care (see the Olsson
judgment of 24 March 1988, Series A no. 130, p. 29, para. 59).
The prohibition on removal and its maintenance in force for an
unlimited period certainly amounted to an interference with
Mrs Eriksson's right to respect for family life in the above-mentioned
sense. The existence of such an interference is not affected by the
daughter's relationship with her foster parents.
As regards the other measures, there can be no doubt that at least the
restrictions on access imposed by the social authorities also
constituted an interference with this right (see further paragraph 81
below).
For an interference to be justified according to Article 8 para. 2
(art. 8-2), it has to be shown to be "in accordance with the law", to
have an aim or aims that is or are legitimate under this paragraph and
to be "necessary in a democratic society" for the aforesaid aim or
aims.
2. "In accordance with the law"
(a) The prohibition on removal
59. The prohibition on removal was based on section 28 of the
Social Services Act. To the extent that Cecilia Eriksson's allegation
that Swedish legislation is not in conformity with the Convention (see
paragraph 54 above) concerns the quality of this section as a "law"
for Convention purposes, the Court recalls the following requirements
which flow from the phrase "in accordance with the law": the law must
be sufficiently precise; there must be a measure of protection against
arbitrary interferences by the public authorities with, inter alia,
the right to respect for family life; if the law confers a discretion,
its scope and manner of exercise must be indicated with sufficient
clarity to afford such protection (see the above-mentioned Olsson
judgment, Series A no. 130, p. 30, para. 61).
60. Section 28 itself is admittedly worded in rather general terms
and confers a wide measure of discretion. However, it is scarcely
feasible to set out in advance all the circumstances in which the
removal of a child from a foster home may cause a serious risk of
harming his physical or mental health. If the authorities'
entitlement to act were to be confined to cases where actual harm had
already occurred, the effectiveness of the protection which the child
requires would be unduly reduced. Moreover, in interpreting and
applying this section, the relevant preparatory work (see paragraph 42
above) provides guidance as to the exercise of the discretion it
confers and the administrative courts have competence to review at
several levels the decisions made pursuant to this section.
Taking these safeguards against arbitrary interferences into
consideration, the scope of the discretion conferred on the
authorities by the section in question appears to the Court to be
reasonable and acceptable for the purposes of Article 8 (art. 8).
61. Mrs Eriksson also submitted that the prohibition on removal
had not been issued in accordance with Swedish law as there was no
evidence of any risk to Lisa's health if she were to be moved.
Moreover, she claimed that the domestic courts had in fact applied
section 28 incorrectly, in that they had based their judgments,
upholding the prohibition, on what they considered to be "the most
suitable and happiest solution" for Lisa and not on the risks to her
health.
62. The Court would first recall that its power to review
compliance with domestic law is limited; it is in the first place for
the national authorities, notably the courts, to interpret and apply
that law (see, for example, the Chappell judgment of 30 March 1989,
Series A no. 152, p. 23, para. 54).
Like the Commission, the Court observes that the prohibition on
removal has been examined by the administrative courts
(see paragraphs 15-22 and 27-32 above) and that nothing in their
judgments suggests that it was contrary to Swedish law.
63. The interference resulting from the prohibition on removal was
thus "in accordance with the law".
(b) The restrictions on access
64. Before the Court, Mrs Eriksson alleged that the restrictions
imposed on her access to her daughter (see paragraphs 14, 26 and 34-35
above) lacked any basis in domestic law. This allegation was accepted
by the Delegate of the Commission. The Government disagreed: they
maintained that the restrictions had the aim of protecting the
daughter's welfare and that this aim provided a standard which, as
such, fulfilled the requirement of being "in accordance with the law"
even if the standard was not laid down explicitly in a specific
provision.
65. As was pointed out by the Delegate of the Commission, the
imposition of restrictions on access while a prohibition on removal is
in force has been found by the Supreme Administrative Court to lack
all legal effect as there are no legal provisions on which any such
restrictions could be based (see paragraph 45 above). Having regard
to this authoritative interpretation of Swedish law, the Court
concludes that the interference in question with Mrs Eriksson's right
to respect for family life did not have the requisite basis in
domestic law and was therefore not "in accordance with the law" for
the purposes of Article 8 (art. 8).
3. Legitimate aim
66. The Commission accepted that the aims of the measures
complained of were, as stated by the Government, "the protection of
health" and "the protection of the rights and freedoms of others",
that is, in the instant case, of Lisa. Before the Court, Mrs Eriksson
disputed the legitimacy of the aims behind the interference. She
maintained that the child's best interests had been completely
disregarded from the very beginning and that no risk to her health had
ever been established in connection with the prohibition on removal.
67. Section 28 is clearly designed to protect the legitimate
interests of children when a care order is lifted. The Court has also
found (see paragraph 62 above) that there is nothing to suggest that
the prohibition on removal was not imposed in accordance with this
section. It accordingly concludes that that measure did have the aims
invoked by the Government.
Although the Court has found that the restrictions on access had no
basis in domestic law (see paragraph 65 above), it does not doubt that
they were imposed with the legitimate aims of protecting Lisa's health
and rights.
4. "Necessary in a democratic society"
68. It has also to be considered whether the measures at issue
could be regarded as "necessary in a democratic society". The
Government maintained that this requirement was met, but the
Commission came to the conclusion that this was not the case.
69. The notion of necessity implies that the interference must be
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
Olsson judgment, Series A no. 130, pp. 31-32, para. 67).
70. The original decision to prohibit Mrs Eriksson from removing
her daughter from the foster home may well, in the circumstances of
the case and having regard to the margin of appreciation accorded to
the Contracting States in this area, be said to satisfy this
requirement.
71. In cases like the present a mother's right to respect for
family life under Article 8 (art. 8) includes a right to the
taking of measures with a view to her being reunited with her child.
The care order had been lifted, and there was no doubt as to the
suitability of Mrs Eriksson to take care of children or of the
conditions in her home (see paragraph 20 above). The Social Council's
decision of 21 January 1983 (see paragraph 12 (c) above) made it clear
that once the care order was no longer in force, the aim was the
reuniting of parent and child. Furthermore the Supreme Administrative
Court stated, in its judgment of 11 October 1984 (see paragraph 22
above), that "[i]rrespective of the duration of the prohibition, the
[Social Council] is obliged to see to it that appropriate measures
aimed at reuniting parents and child are taken without delay".
However, it appears that under Swedish law Mrs Eriksson did not, after
the lifting of the care order, have any enforceable visiting rights
while the prohibition on removal was in force. Furthermore, and in
particular on account of the restrictions on access, she was in fact
denied the opportunity to meet with her daughter to an extent and in
circumstances likely to promote the aim of reuniting them or even the
positive development of their relationship. In this situation she has
not been able to have the prohibition on removal lifted. The
resulting stress on the relations between the applicants and the
uncertainty with regard to Lisa's future have already continued for
more than six years, causing great anguish to both applicants.
The Government admitted that the system as implemented had failed on
this occasion, but argued that situations such as the present could
not be prevented whatever system would have been applied, as all
depended on the persons involved. The Court recognises that
difficulties may arise in consequence of the termination of public
care of young children, especially where the child has been taken into
care at a very young age and has spent many years away from his
natural parents' home. However, the unsatisfactory situation that has
ensued in the present case seems to a large extent to stem from the
failure to ensure any meaningful access between mother and daughter
with a view to reuniting them.
Having regard to the foregoing and notwithstanding Sweden's margin of
appreciation, the Court concludes that the severe and lasting
restrictions on access combined with the long duration of the
prohibition on removal are not proportionate to the legitimate aims
pursued.
72. Accordingly, Article 8 (art. 8) of the Convention has been
violated.
B. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION
73. Mrs Eriksson also complained of a number of violations of
Article 6 para. 1 (art. 6-1) of the Convention, which reads:
"In the determination of his civil rights and obligations ... everyone
is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law. ..."
Before the Court, the Government maintained that there had been no
such violations, although they withdrew their initial plea that this
Article (art. 6-1) was not applicable.
1. Proceedings concerning the prohibition on removal
(a) Fairness of the proceedings
74. Mrs Eriksson submitted in essence that the administrative
court proceedings following her first challenge of the prohibition on
removal (see paragraphs 15-22 above) were unfair since she was at a
disadvantage compared with the social authorities and the foster
parents, who had Lisa under their control and were therefore able to
influence her attitudes.
She also complained that the administrative courts took their
decisions without having before them any opinion from an independent
medical expert, and that she was herself unable to challenge the
evaluations by the Social Council's experts as she was allegedly not
allowed to have her daughter examined by an expert of her own choice.
75. The first of the above complaints relates not to the fairness
of the proceedings, but to the factual situation in the case. As
regards the second complaint, the Court is satisfied from the
information before it that proper steps were taken to obtain
sufficient expert medical opinion for the purposes of the proceedings.
Considering the proceedings as a whole, the Court concludes, like the
Commission, that they were not incompatible with Article 6 para. 1
(art. 6-1).
(b) Length of the proceedings
76. Mrs Eriksson further claimed that the first set of proceedings
(see paragraphs 15-22 above) had not been concluded within a
reasonable time.
77. The period to be taken into consideration for this purpose is
approximately 20 months. The Court agrees with the Commission that
the duration of these proceedings, at three levels of jurisdiction, is
not excessive for the purposes of Article 6 para. 1 (art. 6-1).
(c) Withdrawal of an appeal
78. Mrs Eriksson claimed that there was a further violation of her
right to access to the courts in the second set of proceedings, in
that she was allegedly forced by the Social Council to withdraw her
appeal against its decision of 18 January 1985 (see paragraphs 23-25
above).
79. The material before the Court does not substantiate this
allegation, which was contested by the Government. Besides, the
applicant has not brought any complaint before any Swedish authority
empowered to examine matters of this kind. No violation of
Article 6 para. 1 (art. 6-1) on this point has therefore been established.
2. Judicial review of the restrictions on access
80. Mrs Eriksson asserted that she did not have any remedy before
a court with regard to the restrictions imposed on her access to Lisa.
In its decision of 18 July 1988 in the Olsson case, the Supreme
Administrative Court held that no administrative appeal lay against a
decision by the Social Council to restrict access (see paragraph 45
above). The Government admitted that this was so, but submitted that
Mrs Eriksson could have had a court review of the reasons underlying
the restrictions by challenging the prohibition on removal or by
requesting the return of her child under Chapter 21, section 7, of the
Parental Code. In their opinion, the question of access was so
closely connected to the question where the child should remain and
for how long, that the two questions were really elements of the same
problem.
81. Like the Commission, the Court is unable to accept this
argument. Especially in cases of the present kind, the question of
access is quite distinct from the question of whether or not to uphold
the prohibition on removal (see, mutatis mutandis, the W v. the United
Kingdom judgment of 8 July 1987, Series A no. 121-A, pp. 35-36, para. 81):
only if sufficient access is first permitted will there be real
possibilities of having the prohibition on removal lifted. The
recourse available in the administrative courts in the form of a
challenge to the prohibition on removal is thus not sufficient for the
purpose of the mother's claim for access rights. An application under
section 7 of Chapter 21 of the Parental Code must also be considered
irrelevant for this purpose, as such an application will in principle
succeed only in the same circumstances as a challenge to a prohibition
on removal (see paragraph 49 above).
82. There has accordingly been a violation of Article 6
(art. 6) on this point.
C. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)
83. Mrs Eriksson submitted that there was a violation of Article 2
of Protocol No. 1 (P1-2) to the Convention as the prohibition on
removal and the restrictions on access prevented her from giving her
daughter an education according to the beliefs of the Pentecostal
movement. The relevant part of Article 2 (P1-2) 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."
This claim was contested by the Government and rejected by the
Commission.
84. Lisa was taken into care and placed in the foster home, where
she has lived ever since, before her mother's religious conversion and
it does not appear from the material before the Court that the
question of Lisa's religious upbringing was ever pursued before the
domestic authorities.
In these circumstances, the Court concludes that the mother's
complaint is unsubstantiated.
D. ALLEGED VIOLATIONS OF ARTICLE 13 (art. 13) OF THE CONVENTION
85. Mrs Eriksson contended that there were also violations of
Article 13 (art. 13) of the Convention, which reads:
"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."
The Government contested this claim.
86. Mrs Eriksson complained in the first place of the lack of any
remedies against the restrictions on access imposed on her.
Having regard to its conclusion under Article 6 para. 1 (art. 6-1)
(see paragraph 82 above), the Court does not consider it necessary to
examine this aspect of the case also under Article 13 (art. 13).
87. The applicant further claimed that no remedy was available to
her in respect of the alleged breach of Article 2 of Protocol No. 1
(P2-1).
In the circumstances of the case (see paragraph 84 above), she cannot
be said to have an arguable claim on this point for the purposes of
Article 13 (art. 13), which provision has therefore not been violated.
III. THE DAUGHTER'S COMPLAINTS
88. Mrs Eriksson, acting as her daughter's legal guardian and
natural parent, also alleged that Lisa had been the victim of the same
violations as she claimed that she herself had suffered.
The Government questioned whether Mrs Eriksson could properly
represent her daughter, in view of their conflicting interests.
However, they have raised no formal objection and the Court does not
consider that this point is one which prevents it from examining the
complaints put forward on Lisa's behalf.
A. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
89. The factual and legal situation concerning the possibilities
for the applicants to meet and develop their relationship with a view
to being reunited constitutes an interference with Lisa's right to
respect for family life as well as with the mother's and, for the
reasons given in paragraphs 65 and 71 above, in particular the
uncertainty regarding Lisa's future, there has been a violation of
Article 8 (art. 8) also in respect of her.
B. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION
90. In its report, the Commission found that the daughter could
not be considered to be a victim of the alleged violations of
Article 6 para. 1 (art. 6-1). Before the Court, neither the Government
nor the Delegate of the Commission dealt with these issues.
91. In the proceedings relating to the prohibition on removal (see
paragraphs 74-79 above), Lisa was never formally a party. The Court
does not find it necessary to decide whether Article 6 para. 1 (art. 6-1)
is applicable also to the complaints put forward on her behalf
concerning these proceedings: it has found above (see paragraphs 75,
77 and 79) that their conduct did not violate this Article
(art. 6-1) with regard to the mother and there is nothing before the
Court that could warrant a different conclusion in respect of the
daughter.
92. As regards the lack of any court remedy to challenge the
decisions concerning access, Article 6 para. 1 (art. 6-1) applies in the
present case to the daughter in the same way as it applies to the
mother (see paragraph 73 above).
For the same reasons as set forth in paragraphs 80-81 above, there has
accordingly been a violation of this Article (art. 6-1) on this point
in the case of the daughter too.
C. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2), TAKEN ALONE OR
TOGETHER WITH ARTICLE 13 OF THE CONVENTION (art. 13+P1-2)
93. The complaint under Article 2 of Protocol No. 1 (P1-2)
is based only on its second sentence, which guarantees a right of
parents, and not on the first, which states that "no person shall be
denied the right to education". Lisa therefore cannot claim to be the
victim of the alleged violation of Article 2 (P1-2), taken alone
or together with Article 13 (art. 13+P1-2) of the Convention.
D. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH
ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 13+6-1)
94. Having regard to its conclusion regarding Article 6 para. 1
(art. 6-1) (see paragraph 92 above), the Court does not consider it
necessary to examine under Article 13 (art. 13) the complaint
regarding the lack of any court remedy in respect of the restrictions
on access.
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
95. 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."
A. Damage
96. The applicants sought under this provision 5,000,000 Swedish
Crowns (SEK) each for non-pecuniary damage, which claim both the
Government and the delegate of the Commission considered excessive.
97. There can be no doubt, in the Court's view, that both
applicants have for a long time suffered substantial anxiety and
distress as a result of the violations found in the present case. In
addition, the mother has been exposed to much embarrassment and has
had to devote much time and effort to trying to bring about such
conditions regarding her contacts with her daughter as would be likely
to promote the aim of reuniting them.
98. 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 Mrs Eriksson
200,000 SEK and her daughter Lisa 100,000 SEK for non-pecuniary
damage.
B. Legal fees and expenses
99. Mrs Eriksson also claimed 270,000 SEK for 300 hours' work
performed by the lawyer, Mrs Westerberg, in the proceedings before the
Commission and the Court.
The Government questioned whether all the 300 hours' work had really
been necessary, especially since Mrs Westerberg was well acquainted
with the case as a result of the domestic proceedings. With regard to
the hourly rate charged, they accepted as reasonable only 700 SEK, as
against 900 SEK claimed. The Delegate of the Commission made no
comments.
100. Taking into account the relevant legal aid payments made by
the Council of Europe and making an assessment on an equitable basis,
the Court considers that Mrs Eriksson is entitled to be reimbursed,
for legal fees and expenses, the sum of 100,000 SEK.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there have been violations of Article 8
(art. 8) of the Convention as regards both applicants;
2. Holds unanimously that there has been a violation of Article 6 para. 1
(art. 6-1) as regards Cecilia Eriksson, in that no court remedy was
available to challenge the restrictions on access;
3. Holds by fifteen votes to five that, on the last-mentioned point,
there has been a violation of Article 6 para. 1 (art. 6-1) as regards
Lisa Eriksson also;
4. Holds unanimously that, as regards both applicants, it is not
necessary to examine this same point also under Article 13 (art. 13)
of the Convention;
5. Holds unanimously that there have been no other violations of
Article 6 para. 1 (art. 6-1);
6. Holds unanimously that there has been no violation of Cecilia
Eriksson's rights under Article 2 of Protocol No. 1 (P1-2),
taken alone or together with Article 13 (art. 13+P1-2) of the Convention;
7. Holds unanimously that Lisa Eriksson cannot claim to be a victim
of the alleged violation of Article 2 of Protocol No. 1 (P1-2), taken
alone or together with Article 13 (art. 13+P1-2) of the Convention;
8. Holds unanimously that Sweden is to pay, for non-pecuniary damage,
200,000 (two hundred thousand) Swedish Crowns to Cecilia Eriksson and
100,000 (one hundred thousand) Swedish Crowns to her daughter Lisa
and, for legal costs and expenses, 100,000 (one hundred thousand)
Swedish Crowns to Cecilia Eriksson;
9. 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 22 June 1989.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and
Rule 52 para. 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) partly dissenting opinion of Mr Thór Vilhjálmsson,
Mrs Bindschedler-Robert, Mr Matscher, Mrs Palm and Mr Foighel;
(b) concurring opinion of Mrs Bindschedler-Robert,
Mr Pinheiro Farinha, Mr Pettiti, Sir Vincent Evans, Mr Macdonald,
Mr Carrillo Salcedo and Mr Valticos.
Initialled: R.R.
Initialled: M-A.E.
PARTLY DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON,
BINDSCHEDLER-ROBERT, MATSCHER, PALM AND FOIGHEL
Whilst we agree with the Court that there has been a violation of
Article 6 (art. 6) as regards Mrs Eriksson, we cannot agree with the
Court's conclusion on this point in respect of the daughter.
Lisa has not, herself, shown any interest whatsoever in reuniting with
her mother. She has lived with her foster family almost since she was
born and she wants to stay with them. Equally she has never sought to
have a review of the restrictions on access imposed in the present
case. Even if Lisa, because of her young age, has not been able to
take any legal action herself, she would certainly have been able to
put to the social authorities, with which she had close contacts, any
requests she might have had. Indeed there is nothing in the material
before the Court that shows anything else than that Lisa, however
reluctantly, agreed to see her mother but did not wish to have closer
contacts.
In these circumstances, it is not in our view established that Lisa
has suffered any detriment as a result of the lack of any court
remedy. As she was thus not actually affected by the impugned
deficiency of the Swedish system, she cannot be considered a victim of
the violation of Article 6 (art. 6) alleged on her behalf (see, mutatis
mutandis, the Norris judgment of 26 October 1988, Series A no. 142,
pp. 15-16, paras. 30 and 33).
The reasoning above can to a certain degree be applied to argue for a
non-violation of Article 8 (art. 8). But there is a clear distinction
between the two situations. The opportunity for Lisa to be reunited
with her mother was undoubtedly taken away from her. Thus there was
an interference with the respect due to her family life and a
violation of Article 8 (art. 8).
CONCURRING OPINION OF JUDGES BINDSCHEDLER-ROBERT, PINHEIRO FARINHA,
PETTITI, SIR VINCENT EVANS, MACDONALD, CARRILLO SALCEDO AND VALTICOS
The Court has noted in paragraph 91 of its judgment that Lisa Eriksson
was never formally a party to the proceedings relating to the
prohibition on removal. Nevertheless her interests were directly
affected by those proceedings and could not be assumed to be
consistent with those of any of the other parties involved. This is a
consideration relevant to the fairness of the proceedings on the part
of Lisa. It appears that under Swedish law a special guardian could
have been appointed to protect her separate interests (see
paragraph 44 of the Court's judgment). There is no evidence that this
procedure was followed in the present case. No complaint in this
respect has been made on her behalf before the Court. In our opinion,
however, the appointment of a special guardian would appear to have
been an appropriate and desirable step in the circumstances of the
case.
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