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.
