CEDH · CASELAW;DECISIONS;DECCOMMISSION;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. 12256/86                       by L.                       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 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 27 June 1986 by Ferenc Lovasz against Sweden and registered on 1 July 1986 under file No. 12256/86;           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 of Hungarian origin, born in 1936.   He resides at Huddinge and is at present unemployed.   Before the Commission, the applicant is represented by Mr.   Lennart Möller, a lawyer practising in Stockholm.           The application concerns the refusal to terminate the care of the applicant's son, born in 1975.           The applicant and his wife divorced in 1980.   Shortly afterwards his ex-wife died and the custody of their son was given to the applicant.   In October 1982 the applicant's son was taken into care on a provisional basis and subsequently the Social District Council (sociala distriktsnämnden) of Bjuv applied to the Regional Administrative Court (länsrätten) for the taking into care of the applicant's son.   On 6 December 1982 the Regional Administrative Court ordered that the applicant's son should be taken into care and by judgment of 7 July 1983 the Administrative Court of Appeal (kammarrätten) rejected the applicant's appeal against this judgment. Finally on 14 November 1983 the Supreme Administrative Court (regeringsrätten) refused leave to appeal against the judgment of the Administrative Court of Appeal.           On 4 May 1984 the applicant lodged an application with the European Commission of Human Rights (No. 10967/84) complaining that he had been the victim of a breach of Article 8 of the Convention as a result of the decision to take his son into care.   After having communicated the case to the Swedish Government in order to obtain their written observations on the admissibility and merits of the application and after receiving the Government's observations as well as the applicant's observations in reply, the Commission declared the above complaint inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.   In its decision of 11 December 1985 the Commission stated:     "The Commission finds that the taking of the applicant's child into public care interfered with the applicant's right to respect for his family life as ensured by Article 8 para. 1 of the Convention.   It must therefore be examined whether this interference was justified under the terms of Article 8 para 2.   The Commission finds that the interference was 'in accordance with the law', namely Section 1, first paragraph (1) of the Act with Special Provisions on the Care of Young Persons.   The Commission is furthermore of the opinion that the interference had a legitimate aim under Article 8 para. 2 namely the interests of the child which in this case fall under the expressions 'for the protection of health or morals' and 'for the protection of the rights and freedoms of others'.   It remains to be determined whether the interference was 'necessary in a democratic society' in the interests of the child.   When determining whether or not the taking of the applicant's child into public care was 'necessary in a democratic society' in 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 the decisions which have been taken by the domestic authorities.   It goes without saying that it is difficult to ascertain what precisely is the best interest of the child.   The Commission stresses that the issue in this case is not simply what is the best solution for the child.   Under Article 8, an interference with the right of the parent to take care of his child cannot be justified only on the basis that it would be better for the child to be taken care of by foster parents.   In order to justify such an interference, it is necessary under the terms of Article 8 that the State demonstrates sufficient reasons for the decision to take the child into public care. Those reasons should be at such a weight as to render the decision of public care 'necessary in a democratic society'.   The Commission has first had regard to the wording of the relevant legal provisions, in particular Section 1 of the Act with Special Provisions on the Care of Young Persons.   Under this provision a child may be taken into public care if the lack of care of the child or any other conditions in the child's home entails danger to the health or development of the child.   If these conditions are at hand, the Regional Administrative Court may upon application from the competent Social Authority decide to take the child into public care.   In the present case the domestic courts found that the applicant had for many years lived under strong psychological pressure and that he was psychologically very unstable.   It has also been established that there were conflicts between the applicant and the authorities.   Intensive efforts had been made by the social authorities to assist the family on a voluntary basis.   It was concluded that there was a need for public care of the child.   The Commission notes in this context that the applicant has threatened to kill himself and his son.   The applicant has submitted this was a 'hasty utterance'.   The Commission furthermore notes that the decision to take the applicant's child into public care was arrived at following thorough investigation and the procedure on various levels, the first being the competent social authorities and thereafter three levels of court review.   The Commission is of the opinion that the procedure applied has shown sufficient respect for the applicant's family and private life.   The Commission considers that the decisions taken by the Swedish courts were reasonable in the circumstances.   It is the Commission's opinion that the justification for these decisions cannot be questioned as a result of the subsequent developments and decisions.   The Commission is therefore of the opinion that interference with the applicant's right under Article 8 para. 1 of the Convention was justified under the terms of Article 8 para. 2 as being necessary in a democratic society in the interests of the child."           Prior to the Commission's above decision, the Social District Council decided on 11 September 1985 to continue to keep the applicant's son in care in accordance with the Act with Special Provisions on the Care of Young Persons.   Furthermore it was decided to maintain a prohibition on visits and to keep the applicant's son's place of living secret to the applicant.           On 2 October 1985 the applicant complained to the Regional Administrative Court about the decisions of the social authorities. The Court held a hearing in the case on 29 October 1985 during which the Social District Council maintained its views in regard to the termination of the care order and the implementation of the same.   The applicant, who was present at the hearing and assisted by counsel, maintained that no facts, conflicts or problems were at hand, which could justify the decisions taken by the Social District Council. Finally counsel for the applicant's son submitted that there was no reason to terminate the care order.   He pointed out, however, that it would not seem reasonable to keep the child's place of residence secret to the applicant and that it would be important that visits could be arranged between father and son in order to obtain a reasonable contact between them.           In its judgment of 13 November 1985 the Regional Administrative Court stated the following:   "With regard to the question as to whether the care order should be terminated, the Regional Administrative Court decides as follows.   As concluded by previous courts on various occasions, the inquiry of the present case reveals that (the applicant) has been unable to cope with his situation and he has completely concentrated on the proceedings concerning his son and locked himself up in his morbid suspiciousness.   The Regional Administrative Court finds that this situation and (the applicant's) attitude towards the authorities obviously has influenced his whole lifestyle.   His fight to get (his son) back is his full-time occupation and there is no reason to doubt that, due to this, he has not had the power to plan his own work.   It is true that Dr.   P.F.-F. in a medical opinion, submitted in this case, states that (the applicant) in his view is fully capable of taking care of his son.   The witness M. has also been of this opinion.   However, the Regional Administrative Court considers for its part that (the applicant) still lives under such strong psychic pressure and that he is psychologically unstable to such an extent that it appears necessary that he and his son meet on a regular basis during a longer period of time before there can be any question of terminating the care of (the son).   The Court bases this view on the numerous threats and incidents which appear from the considerable material of the case and on the impressions of (the applicant's) person which the Court has got.   All in all the Court accordingly finds that (the son) needs to remain in care according to the Act with Special Provisions on the Care of Young Persons for a further period of time.   This part of the application is therefore rejected.   Concerning the prohibition on visits, the Court has already mentioned above that father and son must be given the chance to meet on a regular basis before there can be a question of terminating the care order.   From the file of this case, it appears that the social authorities have also considered this question.   To secure the safety of (the child) and the foster- home, the Court finds it appropriate that these visits take place outside the foster-home and in an appropriate manner. The Social District Council should take care of this, such as how, where and when the meeting shall take place.   This part of the application is accordingly accepted.   Hereafter, it is left for the Court to consider whether the decision to keep the son's whereabouts secret shall be maintained.   In this respect, it has been submitted that (the applicant) now knows where (his son) is.   Therefore the Court finds that the decision is of no interest at the present moment and the complaint in this respect does not give the Court reason to do anything but express the view that the Social District Council appears to have had reasons to take such a decision."           The applicant appealed against this judgment, insofar as it concerned the refusal to terminate the care order, to the Administrative Court of Appeal of Stockholm.   The Court held a hearing in the case where the applicant was present and assisted by counsel. As in the lower court, his son was also represented by counsel before the Administrative Court of Appeal.   In its judgment of 4 February 1986, the Court stated as follows:   "In addition to what appears from the file, the Administrative Court of Appeal has been informed of what happened during a visit of 14 January 1986 between (the applicant) and (his son).   Furthermore, (the applicant) has in detail explained to the Court during the oral hearing how he experienced the course of events in the case and his views on the authorities' handling of the case.   The witness M. has described the relationship between (the applicant) and his son during the visit of an hour on 14 January 1986 as very satisfactory.   The Social District Council has raised no objections concerning the relationship between father and son during the above mentioned meeting.   The question in this case concerns first of all whether the circumstances are now such that the care order can be terminated.   The Administrative Court of Appeal evaluates this as follows.   (The son) has been in care since 20 October 1982.   The Social District Council decided on 27 October 1982 to keep (the son's) address secret and on 15 June 1983 as well as on 31 October 1984 it decided to prohibit visits.   During the period of care there has been no real contact between (the applicant) and his son.   It is undisputed in this case that the contact between (the applicant) and his son functioned well during the meeting of an hour on 14 January 1986.   The question whether the care in accordance with the Act with Special Provisions on the Care of Young Persons can be terminated cannot, however, in the Court's opinion be decided only on the basis of what has emerged during the above visit.   On the basis of an overall view of what has emerged, the Court finds that the circumstances are not such that the care order should be terminated."           The applicant appealed against this judgment to the Supreme Administrative Court which, by decision of 13 March 1986, refused to grant leave to appeal.   COMPLAINTS           The applicant alleges that his rights under Article 8 of the Convention have been violated when his son was taken into care.   He also maintains that the social authorities' implementation of the care order was inappropriate, in particular since they decided to keep his son's address secret and since they decided not to arrange any visits between them.           The applicant further maintains that the decision not to terminate the care order was taken on the basis of facts which failed to show that there was a need for such a step.     THE LAW   1.       The applicant has complained that his right to respect for his private and family life has been interfered with in a manner unjustifiable under Article 8 para. 2 (Art. 8-2) of the Convention. In particular he has pointed out that the social authorities' handling of his case was improper and that the refusal to terminate the care order concerning his son was decided 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 recalls that the taking into care of the applicant's son was dealt with in his previous application to the Commission which was declared inadmissible on 11 December 1985 (No. 10967/84).   Accordingly in so far as the applicant complains of the fact that his child was taken into care, the Commission finds that this question is substantially the same as the one examined in the applicant's previous application and that it contains no relevant new information.   This part of the application is therefore to be rejected in accordance with Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.   2.       However, the refusal to terminate the care order as well as the actual implementation of it also interfered, in the Commission's view, with the applicant's right to respect for his 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. Report 2.12.86, para. 139) where it found that 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 continued 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 fall 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 in question 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 to 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 the 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 applicant has alleged that the social authorities have handled his case improperly and that the decision not to terminate the care order was based on irrelevant circumstances.           Before considering the substance of this issue, the Commission recalls that both the Regional Administrative Court and the Administrative Court of Appeal held oral hearings.   The applicant was present at both hearings and was assisted by a lawyer.   Before these courts, the applicant had the possibility of presenting any views which in his opinion would be decisive for the outcome of the case. Having regard to these facts, the Commission finds that, in so far as certain procedural requirements are implicit in Article 8 (Art. 8), these requirements were satisfied since the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests.           As regards the refusal to terminate care, the Commission recalls the judgment of the Regional Administrative Court of 13 November 1985 where the Court established that the applicant was still living under such psychic pressure and was still in such a condition that the question of terminating care could only be considered subsequent to regular visits between the applicant and his son.   This evaluation, like that of the Administrative Court of Appeal which confirmed it, was made not only on the basis of written material but also on the basis of a hearing in the presence of the applicant. The Commission considers that it is justifiable not to terminate care unless the improvement in the circumstances that occasioned it appears with reasonable certainty to be stable.   It would clearly be contrary to the interests of the child concerned to be restored to his father, only to be taken into care again shortly afterwards (cf.   Olsson judgment, para. 76).           In the present case, the Commission recalls that it was such circumstances which led the Swedish courts to refuse to terminate care and, seen in this light, the Commission finds that the Swedish authorities had sufficient and relevant reasons for thinking that it was necessary for the care decision to remain in force.   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 this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has also complained about the actual implementation of the care order.   In particular he has pointed out that the social authorities decided to keep his son's address secret and to refuse to arrange access.   With regard to these complaints, the Commission recalls the judgment of the Regional Administrative Court from which it appears that the Court ordered the social authorities to arrange access and that visits have actually taken place.   Furthermore the applicant has not substantiated that the authorities have not subsequently followed the instructions of the Court.   Finally the Commission also recalls that the Regional Administrative Court decided that the question of secrecy was of no interest since the applicant already knew where his son was placed.           In these circumstances, the Commission's examination of this part of the application has not disclosed any appearance of a breach of Article 8 (Art. 8) or any other article of the Convention.   It follows that this part of the application is also manifestly ill-founded in 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)