CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 4 March 1986, the following members being present:                        MM.   C. A. NØRGAARD, President                           G. SPERDUTI                           J. A. FROWEIN                           G. JÖRUNDSSON                           S. TRECHSEL                           B. KIERNAN                           A. S. GÖZÜBÜYÜK                           A. WEITZEL                           J. C. SOYER                           H. G. SCHERMERS                           G. BATLINER                           H. VANDENBERGHE                       Mrs G. H. THUNE                       Sir Basil HALL                         Mr.   H. C. KRÜGER, Secretary to the Commission   Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (art 25);   Having regard to the application introduced on 5 September 1985 by U.A. and M.K. against Sweden and registered on 28 September 1985 under file No. 11776/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case, as they appear from the submissions of the applicants' representative, may be summarised as follows:   The applicants are a couple, Mr. A., born in 1955 and Mrs. K., born in 1956.   They are both resident at Norrköping. Mr. A. is a full-time driver by profession.   Mrs.   K. is a housewife.   She stays at home and takes care of the couple's two children born in August 1980 and October 1981 respectively.   The applicants are represented before the Commission by Mrs.   Mona Nilsson who is a teacher at Karlstad.   Previously the applicants received social welfare benefits in the form of financial subsidies because Mr.   A.'s earnings had been insufficient for the maintenance of the family.   On 20 February 1984 the Northern Social District Council (Norra sociala distriktsnämnden) of Norrköping decided to reject an application from the applicants for further financial subsidies.   As reasons it was indicated that the two children had been given priority for placement at a day home care centre but that the parents had declined to accept the offer, referring to the fact that Mrs.   K. did not wish to apply for employment.   The applicants appealed to the Regional Administrative Court (länsrätten) of the County of Östergötland.   In a judgment of 19 April 1984 the Regional Administrative Court accepted the appeal and referred the case back to the District Council for re-examination. The Court stated as follows in its reasons:   "According to Section 6 of the Social Services Act (socialtjänstlagen), the individual has the right to assistance from the Social Council for his livelihood and for other aspects of his living, if his needs cannot be secured in any other way. The District Council has refused assistance referring to the fact that the family would be able to solve its economical difficulties itself if Mrs. K. took employment and the children were placed at the day home which had been offered.   The need of the applicants could be satisfied in this way.   According to Section 1 of the Social Services Act, the social service of society should be based on respect for the self-determination and integrity of the individual.   According to Section 12 of the Social Services Act, the Social Council shall endeavour to ensure that children and young persons grow up in good and secure conditions.   The couple has apparently in this case made the assessment that it is better for the children if Mrs.   K. stays at home instead of leaving them in a day home while Mrs. K. takes up employment.   Such an assessment can of course be discussed but according to the opinion of the Regional Administrative Court it ought to be respected on the condition that it is really based on consideration for the children. Nothing appears however which would suggest that it is not so based.   In such conditions it would not be in line with the intentions of the Social Services Act to make such a harsh judgment as the District Council has made.   The best interests of the children must be given priority before the general principle that the one who is not available for the labour market is not entitled to public assistance.   This principle carries no weight in such a context.   The Regional Administrative Court therefore finds that the fact that Mrs.   K. has chosen to stay at home with the children instead of taking up employment should not disqualify her for receiving assistance according to Section 6 of the Social Services Act."   The Northern Social District Council of Norrköping appealed to the Administrative Court of Appeal (kammarrätten) of Jönköping, which in a judgment of 3 July 1984 rejected the appeal.   In its judgment the Administrative Court of Appeal stated inter alia as follows:   "There is no general right to be a housewife at the cost of the social services.   It cannot however always be required that both parents in a family with children should take up gainful employment.   The individual circumstances in the particular case must be decisive, even if, according to the general advice of the National Social Welfare Board (socialstyrelsen), the main rule ought to be that the Social Council can choose to give assistance in the form of taking care of the children rather than giving it in the form of financial assistance. - In this case the children are still so small that the care of them and the home must be regarded as a full-time employment. In view of this, and of the fact that the mother, as far as investigations show, does not have any training or professional experience which makes her attractive on the labour market, public assistance to the family ought to be given in the form of financial assistance for a further period."   The District Council lodged a further appeal with the Supreme Administrative Court (regeringsrätten), which in a judgment of 15 March 1985 accepted the appeal and quashed the judgments of the lower courts and confirmed the decision of the District Council.   The judgment was adopted by a vote of three to two.   In its reasons the Supreme Administrative Court stated as follows:   "U.A. and M.K. cohabit.   They have two children born in August 1980 and October 1981.   Ulf A. has full employment, while Monica K. stays at home and takes care of the children.   According Section 6 of the Social Services Act the individual is entitled to assistance for his livelihood and other aspects of his living if his needs cannot be provided for in any other way.   The assistance should ensure to the individual a reasonable level of living. From the investigation in the case it appears that the income of U.A. and M.K. is so low that the family cannot thereby be ensured a reasonable standard of living. Accordingly there is a right to assistance according to Section 6 of the Social Services Act.   The Social Council has, as assistance, offered the family child care places in order to make it possible for Monica K. to apply for employment.   The family has however refused the offer and instead asked for financial assistance in order to make it possible for Monica K. to be at home and take care of the children.   She has accordingly not reported herself as willing to apply for employment.   From the preparatory works to the Social Services Act it appears that a person who is able to work and who can be provided with appropriate work, is only entitled to assistance according to Section 6 of the Social Services Act temporarily and until such time as he can take care of his maintenance himself (Government Bill 1979/80: 1 Part A p. 526).   In the case law it has also been established that an applicant for assistance, who without a valid reason refuses to take up employment, can be refused assistance according to Section 6 of the Act (cf. Yearbook of the Supreme Administrative Court 1983 2:70 and the Supreme Administrative Court's judgment of 28 December 1984, case no. 4243/83). Furthermore, it is expressed in the preparatory works to the legislation that the individual does not have an unconditional right to receive a specific form of assistance.   When choosing the measure of assistance, consideration must be given to the alternative resources available within the municipality (Government Bill 1979/80: 1 Part A p. 185).   It has not been shown in this case that Monica K. has had any other reason for her failure to apply for employment than her own wish to take care of the children or that the children, for special reasons, are in need of her personal education and care. In these circumstances, the Social Council must be considered to have fulfilled its obligation to grant the family necessary assistance under Section 6 of the Social Services Act by assigning to the children, with priority, places at the day home care centre."   The two dissenting judges rejected the appeal while basing themselves, inter alia, on the following reasons:   "It is not in dispute that the family which is seeking assistance and which consists of able adults and two children, aged four and three, finds itself, as a result of the fact that only one of the parents has gainful employment, in a situation with so limited economical resources that the family can only attain a reasonable level of living if it receives assistance from the public authorities.   Accordingly the family is entitled to assistance under Section 6 of the Social Services Act.   Two forms of assistance have been at issue in this case: On the one hand, financial assistance which is being requested by Mrs.   K. but which has been refused by the District Council, and on the other hand, assistance in the form of providing the children with assistance under the child care system of the municipality, whereby both parents would be able to have gainful employment to the extent that such opportunities present themselves.   The last-mentioned form of assistance has been offered to the parents, but the parents, after having tried a family care home for a certain initial period of time, has then returned to taking care of the children themselves.   The offer of places in the day home care centre has been made in the form of the offer of priority.   It appears therefore that the municipality does not have a surplus of day home places.   The use of this offer would accordingly mean that one or two other families, who have expressed wishes about day home places, would have to stand back.   The District Council has, in support of its standpoint, stated that the individual cannot have a right to economical assistance, if he does not try, according to his own ability, to contribute to his livelihood.   The person who can work is also obliged to apply for employment.   As far as it appears from the case file the wish of the parents is based on the fact that they themselves wish to take care of the children, since they consider that the children need their mother at home for some more time, when the children are small. There is nothing to indicate that the mother would not be willing to work.   The investigation in the case does not give any ground for criticising the parents' ability to care for the needs of the children in different aspects.   In view of what has just been said, the issue in the case will be whether the Council can be relieved of its duty to give the family economic assistance as a result of the parents having rejected the offer of day home places and the consequent obstacle to Mrs.   K. taking up gainful employment.   There is no statutory duty or any other duty imposed on an individual to take up gainful employment, but it is an obvious point of departure that everyone should, according to his own ability, take responsibility for his livelihood.   The decisive issue in the case must therefore be whether the parents have any acceptable reason for their standpoint that the children are an obstacle to both parents taking up gainful employment.   If there is a valid reason, the situation in which the family finds itself is a factual condition which must be accepted when assessing the family's right to assistance and the Council's corresponding obligation to give such assistance.   On the other hand, if the family has no valid reason for its standpoint, it must be considered completely normal that the family, in the first place, uses the opportunities to change its factual situation in order to increase its economic resources by taking up gainful employment also by efforts on the part of Mrs.   K. on the labour market and that it takes advantage of the child care offered by the public authorities.   Chapter 6 Section 1 of the Parental Code (föräldrabalken) in its wording from 1 July 1983 provides that children have the right to care, security and good education.   In the same chapter, Section 2, it is provided that children are under the care of the parents.   Furthermore it is said that the one who has the care of the child has the responsibility for the child's personal circumstances and shall see to it that the child's needs according to Section 1 are satisfied.   The custodian, according to Section 11, has "a right and an obligation to decide on questions regarding the child's personal circumstances".   In Section 14 it is recalled that the custodian has a right to receive support and help from the Social Council according to the provisions of the Social Services Act.   In our opinion, the question of whether the parents in the present case have a valid reason for their standpoint to decline day care places in order to be able, instead, to take care of the children must be judged against the background of the far-reaching responsibility for the children's personal circumstances which the Parental Code imposes on the custodian. Furthermore, as the Regional Administrative Court has recalled in its judgment, the public social service according to the express provision of the first section of the Social Services Act should be built on respect for the self-determination and the integrity of the individuals.   From Chapter 6, Section 14 of the Parental Code, where the custodian's right to receive support and help from the Social Council is recalled, it appears that the custodian has the primary responsibility.   In view of what has been said above it cannot be considered compatible with the object and purpose of the Parental Code's provisions on care of children or with the tasks, which the Social Services Act has imposed upon the public social service that the Social Council in a case like the present one can disapprove of the parents' judgment as to how they should fulfil their obligations and exercise their rights as custodians.   The District Council has accordingly to consider the present application about financial assistance starting from the fact that one of the parents in the family takes care of the children at home.   We grant the appeal."   COMPLAINTS   The applicants allege a violation of Art. 8 of the Convention (art 8). The applicants' application for financial assistance from the District Council was refused because Mrs.   K. wished to stay at home and take care of her two small children.   It is the applicants' submissions that if the right to respect for family life means anything, it must be applicable in this situation.   The applicants further submit that their rights to respect for family life have been interfered with by the decision of the Supreme Administrative Court and that this interference can find no justification in Art. 8, para. 2 of the Convention (art 8-2).   It is submitted that the true aim of the interference is to promote equality between the sexes as an absolute overriding dogma, that this dogma is believed to be justified simply because it is supposed to lead to a social society via the creation of a new type of human species, a socialist man, and that the purpose of the interference indirectly is to collect all small children in institutions where they will be helplessly exposed to politically overcharged, extremely selective and unbalanced views of the world via teaching of the kind illustrated by the pedagogical package "The World at the Nursery School".   The applicants submit that such aims are in themselves violations of Art. 17 and 18 of the Convention (art 17, art. 18).   THE LAW   The applicants have alleged a breach of Art. 8 of the Convention (art 8) on the ground that they were refused financial support from the Social Council and that the reason therefor was that Mrs.   K. wished to stay at home and take care of her two children instead of placing them in a day home care, as proposed by the Social Council.   Art. 8 of the Convention (art. 8) 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 first question to be decided is whether the facts of the case disclose an interference with the applicants' right to respect for their family life.   The Commission observes that the issue in the proceedings in the present case concerned the question whether the applicants should be granted financial assistance or not.   Under Swedish law, Section 6 of the Social Services Act, the applicants were, which is not in dispute in the case, entitled to assistance from the Social Council because of the low income in the family.   The Social Council offered the applicants places in the day home care for the two children in order to allow Mrs.   K. to take up gainful employment and thereby to increase her income to a sufficient level. The Supreme Administrative Court resolved that the Social Council had discharged its obligation under the Social Services Act by offering these day home places to the applicants.   The applicants however rejected this offer and wished to have financial assistance instead in order to allow Mrs.   K. to stay at home.   The Commission observes that the Convention does not as such guarantee the right to public assistance either in the form of financial support to maintain a certain standard of living or in the form of supplying day home care places.   Nor does the right under Art. 8 of the Convention (art. 8) to respect for family life extend so far as to impose on States a general obligation to provide for financial assistance to individuals in order to enable one of two parents to stay at home to take care of children.   As to the facts of the present case, the Commission notes that the applicants have decided that one of the parents should stay at home and take care of the children.   Such a decision involves, for all couples, a financial burden, since they will have to live on only one income from gainful employment.   The facts of the present case do not suggest that the authorities have in any way disrespected the applicants' decision to take care of their children themselves.   It is true that under Swedish law the applicants are entitled to public assistance in order to obtain a reasonable standard of living, and that they were granted such assistance in the form of day home places but refused financial assistance, but this cannot be interpreted as a failure to respect their family life.   The decision of the authorities on this matter must, as the applicants have noted, be seen in the context of the general development in society which is characterised by a larger degree of equality between sexes and an increased number of women seeking employment on the labour market.   It is true that as a result of the authorities' decision the applicants had, if they wished to avail themselves of public assistance, to accept assistance in the form of day home places.   The applicants may well have regarded this as an indirect pressure on Mrs.   K. to take up gainful employment. Nevertheless, this fact cannot raise any issue under Art. 8 (art. 8). Moreover, the Commission notes that the applicants do not seem to be in such a situation of need that the solution which they have chosen is not workable.   Nor is there any other indication that the refusal of financial assistance in the circumstances of the present case could involve a lack of respect for the applicants' family life.   Accordingly, the Commission considers that the applicants' complaints do not disclose any interference with their rights under Art. 8, para. 1 of the Convention (art. 8-1).   It is therefore not necessary to enter into an examination of the question of a possible justification under para. 2 of Art. 8 (art. 8-2).   It follows that the application is manifestly ill-founded within the meaning of Art. 27, para. 2 of the Convention (art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission         (H.C. KRÜGER)                         (C.A. NØRGAARD)