CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mai 1987

.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 }  AS TO THE ADMISSIBILITY OF   Application No. 11900/85 by B. V. against Denmark           The European Commission of Human Rights sitting in private on 4 May 1987,   the following members being present:                 MM. E. BUSUTTIL, Acting President                   C. A. NØRGAARD                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER               Mrs G. H. THUNE               Sir Basil HALL               Mr   F. MARTINEZ                 Mr.   H. C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 24 July 1985 by B. V. against Denmark and registered on 9 December 1985 under file N° 11900/85;           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 submitted by the applicant, may be summarised as follows.           The applicant is a Danish citizen, born in 1947.   She is an unskilled worker and resides at Hundested, Denmark.   Before the Commission she is represented by Mr.   N. E. Thoregaard, a lawyer practising at Frederikssund, Denmark.           From the statements and from the documents submitted by the applicant, the following appears to be established.           The applicant is the mother of six children.   Her first marriage was dissolved in 1972 and the applicant was awarded the parental rights over the three children of that marriage.   The applicant's second marriage broke down in 1979 and of the two children of this marriage the applicant was awarded custody over her daughter A whereas her ex-husband was awarded the custody rights over the other child.           The applicant's child A, born on 5 February 1974, as well as the three children of the first marriage were taken into care on 30 October 1974 on the ground that maltreatment of the children had been reported.   The applicant was later found guilty of maltreating the children and received a suspended sentence for this.   The decision to place the children in care was eventually confirmed by judgment of 28 April 1975 of the High Court (Landsretten).   The applicant's child A was first admitted to a nursery home but as from 1 September 1975 she has been placed in care of foster parents.   The custody of the three children of the applicant's first marriage was transferred to the father by judgment of the High Court of 10 August 1976.           In 1976 the applicant requested that her child A be returned to her.   However, by decision of 3 June 1976 the Social Committee of Frederikssund County (det sociale udvalg i Frederikssund kommune) refused it.   This decision was upheld by the Social Appeals Board (den sociale ankestyrelse) on 3 August 1976 and finally by the High Court by judgment of 10 December 1976.           The applicant's sixth child was born in 1979.   She lives with the applicant and the man with whom she cohabits at Frederikssund.           In 1982 the applicant tried again to have her child returned to her.   However, by decision of 10 May 1982 the Social Committee again refused the request.   The decision was upheld by the Social Appeals Board on 6 July 1982 and confirmed by judgment of the High Court of 6 October 1982.   The applicant applied to the Ministry of Justice for leave to appeal the decision to the Supreme Court (Højesteret).   Leave to appeal was, however, refused by the Ministry of Justice on 26 November 1982.           In 1983 the applicant requested for the third time that her child A be returned to her.   However, on 31 May 1983 the Social Committee again rejected the request and the decision was upheld by the Social Appeals Board on 23 August 1983.   This decision was not brought before the High Court.           The following year the applicant submitted a new request to the authorities in order to have her child A returned to her.   In connection with the examination of the applicant's request the Social Committee obtained a school report dated 10 April 1984, a report of 18 April 1984 from the Foster Home Group (plejehjemsforeningen) as well as a statement from the school psychologists of 24 April 1984.           On 2 May 1984 the Social Committee decided, in pursuance of section 123 of the Social Aid Act (bistandsloven), that the applicant's child should remain with her foster parents.           Section 123 of the Social Aid Act reads as follows:                   "Section 123. (1) Where absolutely necessary in         the interests of the welfare of the child, the local         social committee may, until the child attains the age of         18, without the consent of the person having the parental         rights over the child, decide -           (i)      to place the child away from home;           (ii)     to commit the child to the psychiatric department                 of a hospital or in a mental hospital with the                 consent of the medical superintendent of the                 hospital, even though the general conditions                 prescribed in the legislation on hospitalisation                 of the mentally ill are not satisfied;           (iii)    to refuse to let the child return home or place the                 child elsewhere, notwithstanding the fact that the                 initial care was established with the consent of the                 person having the parental rights over the child.           (2)      Where the supportive measures according to         subsection (1) may exceed one year, the local social         committee shall reconsider the case.   Where the young person         is 18 years of age, the supportive measures can only be         maintained with his or her consent."           The applicant appealed against the decision of the Social Committee to the Social Appeals Board.   The applicant appeared before the Appeals Board together with her lawyer on 31 July 1984.   It was agreed to adjourn the case pending the outcome of a child psychological examination as well as a report on the conditions in the foster home.   These reports were submitted on 21 September and 13 August 1984 respectively.   The child psychological report concluded that it was absolutely necessary for the further development of the child that she remained with her foster parents the rest of her childhood and youth.           The Social Appeals Board examined the case again on 9 October 1984 on the basis of the above reports as well as two other reports dated 31 August and 19 September 1984 and obtained from the Foster Home Group and the school psychologists.   On the basis of the facts so established the Social Appeals Board decided to uphold the decision of the Social Committee since it found that the requirements for refusing the return of the child to her mother were met.           The applicant requested that the decision of the Social Appeals Board be brought before the High Court.   The case was heard by the High Court on 27 February 1985.   The applicant was present and heard.   Furthermore, the Court had at its disposal all of the above-mentioned reports as well as other relevant material such as correspondence between the applicant's lawyer and the social authorities and the minutes from the latter's meetings concerning the case.   By judgment of the same day the High Court held, on the basis of the evidence produced, that it was absolutely necessary out of regard for the child's welfare that her return to the mother be denied.           The applicant did not file a petition with the Ministry of Justice for leave to bring the judgment of the High Court before the Supreme Court.           During the period of time in which the applicant's child has been placed in a foster home the applicant's access to her was regulated as follows.   From 1975 to 1980 a visiting arrangement in the foster home was provided for.   After the decision of the Social Committee in 1982 not to return the child to the applicant it was also decided to suspend the access right.   In October 1984 it was, however, decided to grant it again to a certain extent.   From a letter of 5 September 1985 addressed to the applicant's representative it appears that the Social Committee, on 26 April 1985, decided that the applicant for the time being may see her daughter twice a year, in January and in June, for two hours each time.   It does not appear that the applicant has appealed against this decision to the County Appeals Board (amtsankenævnet), a possibility open to her.   COMPLAINTS           The applicant invokes Articles 3, 5 and 13 of the Convention. She maintains that the violation of Articles 3 and 13 lies in the fact that the authorities constantly refuse to return her child to her. She considers it hopeless to continue to appeal against the decisions taken since it is clear that the authorities have no intention to reunite the family.   These intentions are clearly indicated in the reports provided by the social authorities.   Such an attitude, she maintains, amounts to degrading treatment.   The attitude expressed by the social authorities is accepted by the High Court which has now rejected her case three times.           Finally the applicant points out that the authorities' main argument is the fact that a long period of time has passed and that for this reason it would be to the detriment of her daughter to be returned to her.   However, the applicant maintains that she has constantly tried to have her child returned to her and that it is the authorities themselves who have created this situation.   THE LAW   1.       The applicant complains in substance that the refusal to return her child to her is a violation of the rights secured to her under the Convention.   The Commission finds that this complaint falls to be examined under Article 8 (Art. 8) of the Convention which reads:           "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 Commission finds that the refusal to return the child to the applicant interfered with her right to respect for her family life as ensured by Article 8 para. 1 (Art. 8-1).           It must therefore be examined whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2).   The Commission finds that the interference was "in accordance with the law", namely the Social Aid Act in particular Section 123 of the Act.   The Commission furthermore finds that the interference had a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests of the child which in this case fall under the expression "for the protection of the rights and freedoms of others".   It remains to be determined whether the interference was "necessary in a democratic society" having regard to the interests of the child.           When determining whether or not the refusal to return the child to the applicant was "necessary in a democratic society" having regard to the interests of the child, the Commission observes that it is not its task to take the place of the competent national courts but rather to review under Article 8 (Art. 8) the decisions which have been taken by the domestic authorities and to ensure that these decisions have been reached without unfairness or arbitrariness.           It is difficult to ascertain what precisely is in the best interests of a child.   The Commission stresses that the issue in these cases is not only what is the best solution for the child.   Under Article 8 (Art. 8), an interference with the right of the parent to take care of his or her child cannot be justified simply on the basis of it being better for the child to be taken care of by certain foster parents.   In order to justify such an interference, it is necessary under the terms of Article 8 (Art. 8) that the State demonstrate sufficient reasons for the decision to take care of a child.   Those reasons should be of such a weight as to render the care "necessary in a democratic society".           The Commission has first had regard to the wording of the relevant legal provisions, in particular section 123 of the Social Aid Act.   Under this provision a child may be placed away from home where this is absolutely necessary for the welfare of the child.   The Commission finds no indication that the Danish legislation as such would fall short of the requirements for a justification of an interference under Article 8 para. 1 (Art. 8-1).   The Commission also recalls the procedure operating in Denmark where the arrangements made must be re-examined by the Social Committee every year in order to clarify whether the measure is still necessary.   As in the present case the Social Committee's decision may be brought before the Social Appeals Board where the applicant, assisted by legal counsel, has the opportunity to bring forward any issue which might be of importance for the outcome of the case.   Finally the Social Appeals Board's decision may be brought before the court which ultimately decides on the necessity of the arrangement after an oral hearing during which the applicant is assisted by a court-appointed legal counsel.           The Commission finds in these circumstances that the decision to refuse to return the child to the applicant was taken following a thorough investigation and a procedure at various administrative as well as court levels which are sufficient to exclude the assumption of unfairness or arbitrariness.   However, the Commission must also satisfy itself that the factual basis on which the decision was based was such as to justify the interference.   In the present case the Commission recalls that the social authorities carried out a child psychological examination on the basis of which it was concluded that it appeared absolutely necessary for the further development of the child that she remained with her foster parents.   Furthermore reports were obtained from the Foster Home Group and from the school psychologists.   It was on the basis of these reports that the measure of care was maintained.           It is true that the final decision, in addition to the other evidence obtained during the court proceedings, was based on opinions which were expressed by different experts, as well as the conclusions of social reports obtained for the purpose.   However, such an assessment of the situation, in particular the situation of the child in question, must be made.   The Commission finds that in deciding whether to keep the child in care the national authorities are to be recognised as having a certain discretion, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case.   In the present case it appears from the documents submitted that all reports obtained indicated that it would endanger the welfare of the child if she was to live with her mother.           The Commission is of the opinion that, when deciding to keep the child in care on the basis of the conclusions in the above reports, the national authorities did not go beyond the discretion they had to evaluate this evidence.           On the basis of the above considerations the Commission finds that it has been demonstrated that the decision to keep the applicant's child in care can be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) in the interests of the child.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The Commission has finally examined the applicant's remaining complaint as submitted by her under Articles 3, 5 and 13 (Art. 3, 5, 13) of the Convention.   However, this examination has not disclosed any appearance of a violation of the Convention and it follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE        Secretary to the Commission      Acting President of the Commission                  H. C. KRÜGER                    (E. BUSUTTIL)