CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 juillet 1988

.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 }                              Application No. 12056/86                       by Elisabeth and Tony HANSEN                       against Sweden             The European Commission of Human Rights sitting in private on 4 July 1988, the following members being present:                 MM. C. A. NØRGAARD, President                   S. TRECHSEL                   A. S. GÖZÜBÜYÜK                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C. L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 18 February 1986 by Elisabeth and Tony Hansen against Sweden and registered on 24 March 1986 under file No. 12056/86;           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 applicants, may be summarised as follows.           The first applicant is a Swedish citizen, born in 1954.   The second applicant is a Danish citizen, born in 1936.   They are married and reside at Hisingsbacka, Sweden.   Before the Commission they are represented by Mr.   Göran Bergendahl, a lawyer practising in Gothenburg.           The application concerns the taking into care of the applicants' daughter, born in 1979.           The applicants became involved with the social authorities of Gothenburg (Göteborgs socialförvaltning) in 1978 owing to their need for financial assistance.   They have since then been in continuous need of social assistance.   The social authorities discovered a drinking problem in the family which, however, denied any such thing and the further development of the relationship between the applicants and the social authorities became more and more strained.           The applicants' daughter attended a day nursery on a part-time basis and the rest of the time she was looked after exclusively by her parents.   The essentials of the case for the Social District Council's (sociala distriktsnämnden) application for custody, as set out below, may be summarised as follows.           In March 1982, the staff from the day nursery where the applicants' daughter was placed contacted the social authorities reporting that the applicants, and in particular the first applicant, had on several occasions smelled of alcohol on coming to fetch their daughter.   In December 1982 the nursery staff voiced serious concern at the applicants' daughter's behaviour.   Renewed contact with the family brought on a denial that there was any problem and the child then failed to attend the day nursery for several months.           Subsequently the staff of the nursery contacted the social authorities repeatedly, reporting that the child showed signs of abnormal behaviour, that the first applicant often appeared to have been drinking and some times bore signs of physical abuse when she collected her daughter in the afternoons.   Over the past three years, the social authorities received repeated telephone calls from persons wishing to remain anonymous, concerning perpetual drinking parties in the applicants' apartment and stating that the child was being maltreated at home.   For a number of years the first applicant engaged in prostitution and there was strong suspicion that this also occurred in the home.   Representatives of the landlords reported that the applicants often had rowdy parties and that they behaved in a drunken disorderly fashion.   The applicants had been without work for a long period of time and lived completely on social assistance.           On the basis of this information, it was considered that the applicants' child did not receive the special care it needed and the matter was reported to the Chairman of the Social District Council No. 4 of Gothenburg.   Pursuant to Section 6 of the 1980 Act with Special Provisions on the Care of Young Persons (lagen med särskilda bestämmelser om vård av unga), the Chairman decided, on 18 January 1985, to take the applicants' daughter into care on a provisional basis.           This provisional decision was subsequently brought before the Regional Administrative Court (länsrätten) which upheld the decision on 30 January 1985.           On 12 February 1985 a meeting was held in the Social District Council in order to determine whether an application should be lodged with the Regional Administrative Court for the taking into care of the applicants' daughter on a non-provisional basis.   The applicants were present at this meeting and they were assisted by counsel.   They maintained that it was not necessary to take their daughter into care and agreed to accept assistance from the social authorities. Nevertheless the Social District Council decided on the same day to apply to the Regional Administrative Court for the taking into care of the applicants' daughter.   The Court held a hearing in the case on 1 March 1985 during which the Social District Council maintained the necessity to take the applicants' daughter into care.   This view was supported by the appointed counsel for the child, whereas the applicants, who were present at the hearing and assisted by counsel, maintained that no facts, conflicts or problems were at hand, which could substantiate the Social District Council's allegations.           In the case a report was submitted by the deputy chief surgeon at the Gothenburg child and youth psychiatric department (barn- och ungdomspsykiatriska mottagningen i Göteborg).   According to the report, the applicants' daughter was markedly tense and had "ticks" (involuntary twitching) taking the form of twitchings of the head, snorting and sighing.   The report furthermore mentioned that it was likely that the symptoms of disorder manifested by the applicants' daughter were connected with her home situation.   The parents, who wanted to take proper care of their child, failed to do so because of problems regarding their ability to give the child the security and care she needed.           The Regional Administrative Court also had at its disposal a written statement from the psychologists K.N. and E.P.-F.   The former was moreover heard as an expert witness in the oral proceedings before the Court.   She concluded that the child's situation seemed to have deteriorated over the years.   Both her emotional and intellectual development were clearly affected and if the child's further development was not to be jeopardised there should be a change in her overall life situation.           Following the hearing, the Regional Administrative Court decided in favour of the Social District Council's application.   In its judgment the Court stated the following:   "The enquiry reveals that (the applicants' daughter) had shown signs of psychic disorder for a long time and that these disorders had worsened as the years went by.   The situation is now that (the child) needs expert care aimed at correcting the disorders so that her future health and development will not be jeopardised.   All the allegations concerning (the applicants') situation as regards their drinking habits, physical abuse, prostitution, aversion to work and lifestyle are perhaps not properly supported by evidence.   Nor has it been shown that any of the stated circumstances alone should be of decisive significance as regards their ability to take care of (their daughter).   However, taken together, all these circumstances paint a picture of their overall life situation, which shows that the home is not a good setting for (their daughter) to grow up in.   It should be clearly understood that there is a connection between (the child's) psychic disorders and her home conditions.   (The applicants) give the clear impression that they lack proper insight into (their daughter's) state of health.   It cannot be anticipated for the moment that they will be able to see beyond their own problems and change their way of life, so that (their daughter's) special need for care can be dealt with.   If she was now to be looked after at home, her health and development would be put at risk.   The requisite conditions exist for taking (the child) into care in accordance with the Act with Special Provisions on the Care of Young Persons."           The applicants appealed against this judgment to the Administrative Court of Appeal (kammarrätten) of Gothenburg.   The Court held a hearing in the case where the applicants were present and assisted by counsel.   As in the lower court, their daughter was also represented by counsel before the Administrative Court of Appeal. The Administrative Court of Appeal gave judgment in the case on 20 June 1985.   The judgment reads as follows:   "In the appeal to the Court of Appeal the applicants have claimed that their daughter should not have been taken into custody under the Act with Special Provisions on the Care of Young Persons. Among the statements made by the applicants are the following:   In its ruling the Regional Administrative Court misjudged the situation by considering that the overall picture of their lifestyle shows that their home is not a good setting for their daughter to grow up in.   Further, it is untrue that they are not able to see beyond their own problems and change their way of life to take account of their daughter's needs or that they have no clear idea of her state of health.   The couple deny that they are excessive drinkers, that there is physical abuse in the home and that they both allegedly suffer from an aversion to work.   On some ten occasions, (the first applicant) has engaged in prostitution, but she has now abandonded this once and for all. She has also been in contact with the Prostitution Group.   They were previously quite heavy drinkers.   They are now prepared and willing to change that.   The allegation that they are averse to work is inaccurate.   They have constantly attempted to get a job.   This has proved difficult among other reasons because of the long period they have been unemployed.   However, the situation has now apparently improved further.   The first applicant has had short-term temporary jobs at a day nursery. Now, that is since 2 April this year, she has a steady job.   The second applicant has also looked for work.   With various help and assistance from the social authorities, they can now cope with their problems and also manage to have their daughter at home. In the light of this, living at home would appear to present no danger to their daughter's health and development.   The Social District Council has contested the appeal.   Among the points put forward in defence of this view were the following:   The most serious problem in (the applicants') home is their drinking.   (The applicants) are dependent on alcohol.   They have been drunk on various occasions when in charge of their daughter. The employment situation is certainly difficult.   However, (the second applicant) has not worked for eight years.   The Administrative Court of Appeal has conducted an oral hearing in the case.   During the oral hearing, evidence has been obtained from District Supervisers G.B. and B.S. and the principal of the day nursery, K.S. ...   In addition (K.S.) made the following comments:   Since she was taken into care under the Act with Special Provisions on the Care of Young Persons (the applicants' daughter) has calmed down.   Her 'ticks' have decreased.   She is happy at the day nursery and at the Kyrkbyn Children's Home.   On two occasions when the parents called to see her after she had been taken into care, they smelled of alcohol.   After their visit, (the child) became agitated and had more 'ticks'.   However, (the first applicant) and her daughter get on well.   Expert evidence has also been heard from psychologists K.N. and E.P.-F. and Deputy Chief Physician B.L.   K.N. and E.P.-F. have upheld the views and the expert opinions regarding (the child's) situation which they stated in the Regional Administrative Court. E.P.-F. also added the following comments:   She has met (the child) twice since she was taken into care.   The first occasion was at the beginning of February this year.   (The child) was then tense and nervous and had 'ticks'.   The second occasion was 15 May this year.   (The child) had appeared freer and seemed well.   'Ticks' occurred only for a short time.   Among the comments made by B.L. are the following:   (The child) is less tense now.   The 'ticks' sometimes disappear, although they vary.   (The child) is now more natural than she was before.   It is unusual for 'ticks' to occur at such a young age. The parental home must provide basic security.   (The child) shows signs of disorder and has symptoms which are connected with the home environment.   The home environment must be changed.   It is important to bear in mind the fact that the parents continued to drink when (the child) was in the children's home.   The parents must show that there have been changes in the home environment.   The positive point is (the child's) good contact with her parents.   There are no somatic causes for the 'ticks'.   A doctor at Kyrkbyn Day Nursery, H.E., has stated that there is no reason to suspect any organic causes.   The home is the environment which affects the 'ticks'. The child's legal aid solicitor and the social welfare consultant in the County Council Social Welfare Department (länsstyrelsens sociala funktion) have advised against the appeal.   The Administrative Court of Appeal's enquiry has confirmed the fact that (the child) displayed signs of psychic disorder. The disorder must be presumed to stem from her home conditions.   The facts which have emerged concerning (the applicants') way of life and the home environment indicate, as the Regional Administrative Court ruled, that the home has not been a suitable environment for (the child) to grow up in and that (the applicants) have not been able to meet her special needs as regards care.   The Regional Administrative Court must therefore be regarded as having had grounds for its decision to take (the child) into custody under the Act with Special Provisions on Care of Young Persons.   The information which has come to light concerning the couple's lifestyle after the implementation of the Care Order under the Act has not to any significant extent altered the basis of the decision of the Administrative Court of Appeal.   The Care Order under the Act should therefore stand."           The applicants appealed against this judgment to the Supreme Administrative Court (regeringsrätten) which, by decision of 28 August 1985, refused to grant leave to appeal.           Subsequent to the above decisions to take the applicants' daughter into care, a further enquiry was conducted in the autumn of 1985.   On the basis of this, the social authorities have now terminated the care of the applicants' daughter.   Since January 1986 she has lived with her parents.     COMPLAINTS           The applicants allege that their rights under Article 8 (Art. 8) of the Convention have been violated.   They maintain that the social authorities have dealt with their case inappropriately, in particular since they were not warned that their alleged irregular behaviour might lead to the taking into care of their daughter.           The applicants further maintain that their daughter was taken into care on the basis of facts which failed to show that there was a need for such a step.     THE LAW           The applicants have complained that their right to respect for their private and family life has been interfered with in a manner not justifiable under Article 8 para. 2 (Art. 8-2) of the Convention.   In particular they have pointed out that the social authorities' handling of their case was improper and that the taking into care of their daughter was decided upon without it having been established that there was a need to do so.             Article 8 (Art. 8) of the Convention 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 Commission finds that the circumstances leading to the taking of the applicants' daughter into care interfered with their right to respect for their family life as ensured by Article 8 para. 1 (Art. 8-1) of the Convention.   It must therefore be examined whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2).   In this respect the Commission recalls that three conditions must be satisfied: the interference must be "in accordance with the law", it must pursue one or more of the legitimate aims enumerated in para. 2 of Article 8 (Art. 8-2) and it must be "necessary in a democratic society" for that or those legitimate aims.           As regards the first condition, the Commission recalls its opinion in the case of Olsson v.   Sweden (Olsson v.   Sweden, Comm.   Rep. 2.12.86, para. 139) where it found that the text of the relevant provisions in the Swedish acts, although vague, could not be considered as not satisfying the requirements as to the quality of the law.   This view was confirmed by the European Court of Human Rights in its judgment in the Olsson case (Eur.   Court H.R., Olsson judgment of 24 March 1988, Series A No. 130, paras. 60-63).           In the opinion of the Commission, there is nothing to suggest that the decision taken by the courts in the present case was contrary to Swedish law.   The issue of taking the child into care was examined by the competent administrative courts up to the Supreme Administrative Court, which refused to grant leave to appeal.           The Commission is furthermore of the opinion 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 falls under the expression "for the protection of health or morals" and "for the protection of the rights and freedoms of others".           In these circumstances, the Commission finds that the decision to take the applicant's child into care was taken "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention and that it had a legitimate aim (cf. also above-mentioned Olsson judgment, paras. 64-65).           It thus remains to be determined whether the interference was "necessary in a democratic society" in the interests of the child.           According to the established case-law of the European Court of Human Rights the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.   In determining whether an interference is "necessary in a democratic society" the Commission furthermore has to take into account that a margin of appreciation is left to the contracting States (cf. above-mentioned Olsson judgment, para. 67).           However, the Convention organs' review is not limited to ascertaining whether a respondent State has exercised its discretion reasonably, carefully and in good faith, and they cannot confine themselves to considering the relevant decisions in isolation but must look at them in the light of the case as a whole.   They must determine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (cf.   Olsson judgment, para. 68).           In the present case, the Commission recalls that the applicants have alleged that the social authorities have handled their case improperly and that the decision to take the child into care was based on irrelevant circumstances.           In this respect the Commission recalls first of all that, subsequent to the taking into care of their daughter on a provisional basis, the applicants met with the Social District Council on 12 February 1985 when the question of maintaining the care order was discussed.   During that meeting the applicants were assisted by counsel.   Furthermore, the Commission recalls that both the Regional Administrative Court and the Administrative Court of Appeal held oral hearings.   The applicants were present at both hearings and were assisted by a lawyer.   Before these courts the applicants had the possibility of presenting any views which in their opinion would be decisive for the outcome of the case.   Having regard to these facts, the Commission finds that insofar as certain procedural requirements are implicit in Article 8 (Art. 8), these requirements were satisfied since the applicants were involved in the decision-making process to a degree sufficient to provide them with the requisite protection of their interests.           As regards the taking into care, the Commission recalls the judgment of the Regional Administrative Court of 1 March 1985 from which it appears that the applicants' daughter had developed signs of psychic disorders, that there was a connection between these disorders and her home conditions and that the applicants lacked proper insight into their daughter's state of health.   In these circumstances, the Court considered that the conditions in the home were such as to constitute a danger to the child's health and development.   These reasons are clearly relevant to a decision to take the child into care, and in its judgment of 20 June 1985 the Administrative Court of Appeal upheld the evaluation of the Regional Administrative Court.           However, a decision to take a child into care must be supported by sufficiently sound and weighty considerations in the interests of the child since it is not enough that a child would be better off if placed in care.   In order to determine whether the foregoing reasons can be considered sufficient for the purposes of Article 8 (Art. 8), the Commission must further examine the circumstances in which the decision was taken.           In this respect the Commission recalls that a number of reports issued inter alia by the social authorities and by medical experts were available to the courts when they considered the care issue.   These reports concluded that the applicants' daughter was developing a psychic disorder which was based on the home environment. Furthermore, the Commission recalls that the courts heard a number of expert witnesses who all supported the findings of the written opinions submitted.   The courts' judgments accordingly were not founded only on the above documentation but the courts, on the basis of the hearings held before them, furthermore had the benefit of their own impressions of the persons involved.   Finally the Commission recalls that the care period lasted approximately one year and that the child now lives with her parents.           In these circumstances the Commission finds that the decision to take the applicants' child into care was supported by sufficient reasons and that, having regard to their margin of appreciation, the Swedish authorities were entitled to think that it was necessary to take the applicants' child into care.   Accordingly, the Commission concludes that this decision can be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention in the interests of the child.           It follows that the application is 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     Deputy Secretary to the Commission         President of the Commission                  (J. RAYMOND)                          (C. A. NØRGAARD)