CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 décembre 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. 12495/86                        by Benny JONSSON                        against Sweden             The European Commission of Human Rights sitting in private on 7 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 14 September 1986 by Benny Jonsson against Sweden and registered on 24 October 1986 under file N° 12495/86;           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 Swedish citizen, born in 1952.   He resides at Märsta, Sweden.           The applicant is the father of a boy, born in 1977.   The applicant was never married to the mother and has never had custody over the child.   The relationship between the mother and the applicant broke up before the child was born and after his birth problems arose as to the applicant's access to his son.   He instituted proceedings before the District Court (tingsrätt) of Stockholm on 11 September 1978 in order to obtain access to his son.   He also requested the District Court to grant access on an interim basis until the Court had settled the dispute.   On 20 December 1978 the District Court rejected the request for interim measures and decided to adjourn the examination of the case in order to obtain from the social authorities information as to the child's situation.           In their report of 8 May 1980 the social authorities expressed the view that there would be no reason to refuse the applicant access to his son.   However, due to the problems between the parents themselves, it was advised that such access should, for a certain period of time, be supervised by a third person.           On the basis of this report the parties reached a settlement by which the applicant obtained access to his son during periods set out in the settlement.   On 24 September 1980 the District Court endorsed the settlement on the terms agreed upon by the parties.           It appears that the settlement did not solve the problems and both parties apparently blamed each other for violating the agreement reached.   On 5 October 1981 the mother instituted proceedings in the District Court in order to have the applicant's access to his son reduced.   During the Court's preliminary examination of the case the parties reached a new settlement in which specific access rights were set out.   On request of the parties the settlement was endorsed by the District Court on 19 November 1981.           The problems between the parents had not, however, ceased to exist.   The applicant maintains that he was effectively barred from seeing his son, for which reason he instituted enforcement proceedings in the County Administrative Court (länsrätten) of Stockholm on 18 February 1982 in order to make the mother comply with the settlement of 19 November 1981.   However, during a hearing in court on 22 April 1982 the parties reached a new settlement which was endorsed by the County Administrative Court on 9 July 1982.   The Court accordingly dismissed the case.           This third settlement apparently did not solve the problems either.   On 20 June 1983 the applicant again instituted enforcement proceedings in the County Administrative Court in order to make the mother comply with the settlement of 19 November 1981.   The County Administrative Court, however, decided to adjourn the examination of the case since the mother in the meantime had instituted proceedings in the District Court in order to terminate the applicant's access to the child.           On 28 September 1983 the District Court decided on an interim basis to terminate the applicant's access to his son.   It was furthermore decided to obtain a report from the Social District Council No. 3 (sociala distriktsnämnden 3) in Södertälje as to the applicant's access rights to his son.           In its report which was submitted to the District Court on 24 May 1985 the Social Council recommended that the District Court should terminate the applicant's access to the child because such access would not be in the interest of the child.   In its report the Social Council concluded inter alia:   "From the examination it appears that (the child's) parents separated before he was born and after having known each other for a short period.   According to (the mother) they separated due to (the applicant's) need to control her. Since he furthermore maltreated her she decided to leave him despite the fact that she was expecting their child. According to (the applicant) it was the mother's parents who ruined their relationship.   When (the applicant), at the time of the child's birth, threatened to kill (the mother), she was advised by two social workers whom she had contacted to go and live with her parents for a while.   In December 1978 (the applicant) applied to the District Court of Stockholm for access to his son.   An examination was carried out by the Family Rights Section (Familjerättssektionen) in Stockholm.   The person in charge of the examination got the impression that both parties were locked in their views and it was difficult to influence them.   It was questioned whether they could co-operate.   It was questioned whether the father could cope with meeting the boy alone and the father's proposals, to pick up the boy outside a specific place, indicated an unrealistic view of children and their needs.   The father had clearly stated that he could not accept the presence of a third person when he met with his son.   Having regard to the negative views which the father had of the mother and his wish that the child should be placed in a foster home there was a risk that (the child) would be left in a difficult situation when together with his father.   The person in charge of the examination also questioned whether the mother had the psychical strength to cope with the burdens a specific access right definitely would entail.   It was therefore suggested that the Social Council of Stockholm should propose to the District Court that it would not be in the interest of (the child) that the father got an access right.   However, the Social Council of Stockholm decided on 8 May 1980 to propose that (the applicant) should have access to (the child) supervised by a third person.   Subsequently the question of access has been dealt with by the District Court of Stockholm in 1980 and 1981 in the form of settlements.   The County Administrative Court of Stockholm has in two cases decided that settlement negotiations should take place for which reason such attempts have been made by a psychologist in 1981 and 1982.   Two settlements have been obtained by the County Administrative Court, one in 1981 and the other in 1982.   In June 1983 (the applicant) instituted enforcement proceedings in the County Administrative Court which decided to adjourn the examination due to the fact that (the mother) had requested the District Court of Södertälje to terminate (the applicant's) access rights. (The applicant) had disregarded the attempts of co-operation which had been made in connection with all settlements and he has not used the possibilities he has had to meet (the child).   Instead he has turned to the County Administrative Court with enforcement proceedings.   Through our Family Rights Section (the applicant) got the opportunity, in the autumn of 1982, to meet his son in his home. (The applicant), however, behaved badly and was rude to the mother and to the persons from the social authorities.   It appears from the examination that it is not possible to co-operate with (the applicant), either for (the mother) or for the social authorities.   The question of access does not concern a dispute between the parents but a problem which cannot be solved due to (the applicant's) own behaviour. (The child) has no relationship with his natural father and it has not been possible to build up any relationship.   The circumstances which were present already in 1980 when the examination was made by the Family Rights Section in Stockholm are still present and are more or less unchanged. (The applicant) has no understanding of children's needs and he continues to disregard (the child's) mother.   (The mother) and her family do not have the strength any longer to accept further attempts of co-operation and settlements. If there are reasons indicating that a child may suffer when together with a parent who does not have custody, no access shall be granted.   The examination has shown that (the applicant's) access to his child would involve a risk in particular for his psychic development."           As required by Chapter 6 Section 15 of the Swedish Parental Code (föräldrabalken) the District Court of Södertälje continued its examination of the case on 4 November 1985 on the basis of both parties' submissions as well as the statements of four witnesses proposed by the applicant and the report mentioned above.   The District Court's majority decided in its judgment of the same day to terminate the applicant's access to his son.   In its judgment the majority wrote:   "A dispute between the holder of the custody and a parent who does not have custody concerning access to the child shall be examined only having the best interests of the child in mind.   As a general starting point it is clear that a child has a need of contact with both his parents and that the best interest of the child therefore is encouraged by an access right.   However, in case the child may suffer physically or psychically when together with a parent such access shall not be granted.   The examination of the case, in particular of the statements submitted by the witnesses, discloses that (the applicant) lives under suitable conditions and that his relationship with (his son) is good.   This does not mean, however, that it is as such in the interest of (the child) that (the applicant) shall receive an access right to him. (The child) is now eight years old.   He has only met his father a few times.   A reason for the fact that proper access has not been possible may be that (the applicant), for more or less well-founded reasons, has considered that (the mother) and the social authorities have opposed him and that he therefore has acted in a way which has made the co-operation and the access question even more difficult.   Irrespective of how this has actually developed it can now be established that the requirements for a valuable association with (the applicant) are not at hand. After several years of disputes (the applicant) has met (his son) twice recently.   According to the examination of this case it appears that in both instances conflicts, which must be considered to be to the detriment of the child, have appeared due to the applicant's behaviour.   The tense relationship between (the applicant) and (the mother) must be considered as influencing the child in a disturbing way if he should now also be together with the father.   It is possible that (the applicant) can get together with his son and create a good relationship between them in the future, when (the child) takes the initiative.   Due to the above problems, however, the District Court finds that for the time being, and in accordance with the recommendations of the Social District Council, it is not in the interest of (the child) that (the applicant) should get access to him."           The minority of the District Court stated the following:   "(The applicant) lives under suitable conditions and he should not therefore as such be considered as being unable to be together with his son.   It is true that the relationship between (the applicant) on the one hand and (the mother) and (the child) on the other is problematic for the time being.   An access right for (the applicant) may therefore be feared to influence (the child) in a negative way.   This, however, should be seen in the light of the interest in obtaining a good relationship between father and son in the future.   Such could be encouraged by not breaking the contact totally.   When considering these two, to a certain extent, contradictory interests, we find that the latter weighs more heavily.   We consider therefore that (the applicant) should have the opportunity of meeting his son one Saturday afternoon per month between 13.00 and 17.00 hours in the presence of a third person to be selected by (the mother)."           The applicant appealed against this judgment to the Svea Court of Appeal (Svea hovrätt) on 22 November 1985.   However, on 25 April 1986 the Court of Appeal upheld the judgment of the District Court. The applicant's request for leave to appeal to the Supreme Court (Högsta domstolen) was subsequently rejected by the Supreme Court on 9 July 1986.   COMPLAINTS           The applicant submits that the courts have refused access due to partiality and due to the fact that they have relied on a very partial social report without taking into consideration his views or those of the child.   Their conclusions are accordingly wrong.   He refers in this respect to Article 6 of the Convention.           The applicant furthermore invokes Article 5 of the Convention. He submits that, under Swedish law, the person who has custody over a child has a duty to see to it that the child's need for contact with the parent who does not have custody is taken into consideration as far as possible.   In case this does not happen the courts must decide, in the interest of the child, on the question of access.   The applicant maintains that a similar right is secured to him under the Convention and he finds that the interest of the child must be interpreted so as to give child and parent a guaranteed right to contact with each other.       THE LAW   1.       The applicant has complained that the courts in question ignored the evidence submitted by him and the witnesses heard on his behalf.   He thus alleges that the courts were partial and that their decisions were wrong in that preference was given to evidence which in his opinion showed bias against him.   He relies in this respect on Article 6 (Art. 6) of the Convention.           With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 ; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that the applicant also complains that the courts were not impartial within the meaning of Article 6 (Art. 6) of the Convention. In this respect the Commission finds that the competent courts made a thorough examination of the issue of access and that they reached their conclusion on the basis of what they considered to be in the best interest of the child, without ignoring the applicant's interest in maintaining contact with his child.   The Commission considers that the reasons on which the courts based their decisions do not disclose in any way that they were partial or that they disregarded the interests of the applicant in an unfair or arbitrary manner.           The Commission therefore concludes that the applicant's allegations of a violation of the principle of impartiality of the courts as set out in Article 6 (Art. 6) of the Convention are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also complained that his right to contact with or access to his child, which he maintains is a right secured to him by the Convention, has been interfered with in an unjustified manner.   The Commission has considered this complaint under 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."           In accordance with the Commission's established case-law the right to respect for family life within the meaning of Article 8 (Art. 8) of the Convention includes the right of a divorced parent who is deprived of custody following the break up of the marriage to have access or contact with his child.   The State may not interfere with the exercise of that right otherwise than in accordance with the conditions set out in Article 8 para. 2 (Art. 8-2) (cf.   Hendriks v. the Netherlands, Comm.   Report 8.3.82, para. 94, D.R. 29 p. 14).           The Commission furthermore considers that the natural link between a parent and a child is of fundamental importance and that, where the actual family life in the sense of living together has come to an end, continued contact between them is desirable and should in principle remain possible.   Respect for family life within the meaning of Article 8 (Art. 8) thus implies that this contact should not be denied unless there are strong reasons which justify such an interference.           Turning to the facts of this case the Commission recalls that it does not concern a divorced parent.   It does, however, concern a case in which there had been actual family life in the sense that the unmarried parents were living together, although it had come to an end before the child was born.   In these circumstances, where, furthermore, the question of paternity is not in dispute, the Commission accepts that the decision of the courts to refuse the natural father's request for visiting arrangements interfered with the exercise of his right to respect for his family life under Article 8 (Art. 8) of the Convention.   It must therefore examine whether the interference complained of was justified under Article 8 para. 2 (Art. 8-2) of the Convention, i.e. whether the interference was in accordance with the law and had an aim which was legitimate and necessary in a democratic society.           The Commission observes that the decisions taken by the Swedish courts were based on Chapter 6 Section 15 of the Swedish Parental Code.   Under this provision the court is required to take a decision as to the question of access when the holder of the custody rights refuses a request for access.   The interference was thus in accordance with the law within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.           As regards the legitimate aim the Commission has constantly held that in assessing the question of whether or not the refusal of the right of access to the non-custodial parent was in conformity with Article 8 (Art. 8) of the Convention, the interests of the child predominate. The interference therefore has a legitimate aim insofar as it has been made for the protection of the child's interests (cf.   No.7911/77, Dec. 12.12.77, D.R. 12 p. 192).   There can be no doubt that the interference in the present case with the applicant's right under Article 8 (Art. 8) had this purpose.   What remains to be considered is therefore whether the interference was necessary in a democratic society for the protection of the child's interest.           In examining whether the interference was necessary the Commission does not intend to substitute its own judgment for that of the competent domestic court.   Its function is to assess from the point of view of Article 8 (Art. 8) the decision which the court took in the exercise of its discretionary power.           It is an important function of the law in a democratic society to provide safeguards in order to protect children from harm and mental suffering resulting, for instance, from the breakup of the relationship of their parents.   In such cases this purpose may be achieved by keeping the child away from a situation which could be detrimental to his or her mental development owing to the existence of a loyalty conflict vis à vis one or both of the parents and the inevitable parental pressure put on him or her causing feelings of insecurity and distress (cf.   Hendriks v. the Netherlands mentioned above, para. 120).           In the present case the Commission finds that the competent national courts carefully considered the applicant's request for access to his son.   They came to the conclusion, however, that, given the difficulties between the parents, it was important for the child's well-being to be kept out of these difficulties.   In these circumstances the Commission is satisfied that the interference complained of, namely the refusal of the applicant's request for a visiting arrangement, was required by the interests of the child and that the courts, when so deciding, did not go beyond their discretionary power.           The Commission has not overlooked the applicant's situation. The absence of one's child may cause considerable suffering to the non-custodial parent.   However, where, as in the present case, there is a serious conflict between the interests of the child and one of its parents which can only be resolved to the disadvantage of one of them, the interest of the child must under Article 8 (Art. 8) prevail.           The Commission concludes therefore that the interference with the applicant's right to respect for his family life, being proportionate to the legitimate aim pursued, was justified under Article 8 para. 2 (Art. 8-2) as being necessary in a democratic society for the protection of the rights and freedoms of another person, namely the child concerned.           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         President of the Commission              (H. C. KRÜGER)                       (C. A. NØRGAARD)