CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1989

.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. 12366/86                       by Antero RIEME                       against Sweden             The European Commission of Human Rights sitting in private on 5 July 1989, the following members being present:                 MM. J.A. FROWEIN, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 28 July 1986 by Antero RIEME against Sweden and registered on 1 September 1986 under file No. 12366/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the written observations submitted by the Government on 26 February 1988 and by the applicant on 26 April 1988 as well as the parties' submissions at the hearing held on 5 July 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, which do not appear to be in dispute between the parties, may be summarised as follows:           The applicant is a Finnish citizen born in 1940 and a resident of Tumba, Sweden.   He is metal worker by profession.   Before the Commission he is represented by Mr.   Lennart Hane, a lawyer practising in Stockholm.           The applicant has a daughter, Susanne, together with Mrs. AG.   Susanne was born on 28 October 1976.   When she was eleven months old, the Southern Social District Council (södra sociala distriktsnämnden) of Södertälje, on 26 September 1977, decided that the daughter should be taken into care pursuant to Sections 25(a) and 29 of the Child Welfare Act (barnavårdslagen).   Shortly thereafter Susanne was placed in a foster home.   She still lives in this foster home.   Mrs. AJ had the legal custody of the daughter from her birth.           On 30 November 1981 the applicant instituted civil proceedings before the District Court (tingsrätten) of Södertälje requesting that the custody of the daughter be transferred to him.   By a judgment of 28 September 1983 the District Court ordered that the legal custody of Susanne be transferred to the applicant.   Mrs.   AJ appealed against the judgment to the Svea Court of Appeal (Svea hovrätt), which on 21 June 1984 confirmed the judgment of the District Court.   This judgment acquired legal force.           Provisions regulating the custody of a child appear in the Parental Code (föräldrabalken).   A decision on taking a child into public care does not affect the legal status of the parent or parents as custodians, even though they cannot exercise all their rights and obligations as custodians in the same way as other parents. Similarly, a decision on the custody of a child does not affect a care order.   Care orders can only be issued by the social authorities and the Administrative Courts.   A decision to alter a parent's legal status as a custodian can only be made by a court order issued by an ordinary court.           On 19 October 1983 the applicant submitted a request to the Social District Council that the care of his daughter be terminated. The Social District Council held a hearing at which the applicant, his wife and his representative, Mr.   Hane, were present.   On 16 October 1984 the Social District Council decided to terminate the care of the daughter but, pursuant to Section 28 of the Social Services Act (socialtjänstlagen), to prohibit the applicant from taking Susanne from the foster home, on the ground that there was a risk which was not of a minor character that the daughter's mental health would be harmed if she were separated from the foster home.           Section 28 reads:   "The Social Council may for a certain period of time or until further notice prohibit the custodian of a minor from taking the minor from a home referred to in Section 25 (i.e. a foster   home), if there is a risk, which is not of a minor nature, of harming the child's physical or mental health if the child is separated from that home."           The decision of the Council was based on a report, submitted to it by the social welfare officers responsible for the matter.   This report reflects the different views and considerations that should be taken into account if Susanne were to move to her father.   A psychiatric statement by an authorised psychologist, Jaakko Rantanen, and a senior physician, Dr.   Sari Granström, both at the Institution for Child and Youth Psychiatry in Stockholm (PBU) is appended to the report.   It contains the following statement (pages 2 and 3):   "A change of home for Susanne would mean many anguishing changes for her, for instance the loss of objects of security (her foster parents and foster siblings), loss of friends at home and at school, loss of a familiar environment and daily routines, etc.   At the same time it would mean that all the new things she would need to be acquainted with, for instance new friends, a new school and a new physical environment, new daily routines, etc. would be heavy stress factors that her insufficient inner structure would scarcely be able to cope with in a satisfactory way. She would also lose the ego support from secure adults (her foster parents) that she still needs.   She has not yet been able to develop an equivalent relationship with her biological father and his wife.   Her chances of mastering everyday life and of being able to develop would thus be rendered more difficult in two ways:   on the one hand her insufficient ego functions would be confronted with an unreasonable adaptation task through too many changes at one time, and on the other, much required support for her ego development would be taken away from her immediately when facing such strains.   Susanne has shown that she has a tendency to react with her body to significant changes.   A probable consequence of a move would be that the psychosomatic problems she had today, enuresis, would be aggravated, for example by her starting to wet herself during the day too.   Another probable consequential psychosomatic symptom is recurring stomach pains.   There is also a risk of increased reserve and depression.   A move to Susanne's biological father requires that the relationship between him, his present wife and Susanne be developed and deepened.   Furthermore, it requires that Susanne is sufficiently mature for the move to be discussed with her, with its advantages and disadvantages and related feelings of loss and sorrow, which has as yet proved impossible in her case according to the investigation at PBU.   As a consequence, Susanne should be allowed to continue to develop and mature within the family frame that has been her home for more than six years.   This also means, in our opinion, that she should not be subjected to new examinations connected with her return home within the next few years, but Susanne's contact with her father needs to be continued and developed in collaboration with her foster parents.   The regular contact between Susanne and her biological father has meant that Susanne has been able to create psychological childhood ties with her biological origin.   If this development, which has already begun, shall have a chance to continue, Susanne's biological father needs a great deal of support in order to be capable of maintaining and further developing his contact with his daughter based on the daughter's needs."           The applicant appealed against the prohibition on removal to the County Administrative Court (länsrätten) of the County of Stockholm.   The Court held a hearing in camera on 22 January 1985 at which hearing the applicant and his wife were present and represented by Mr.   Hane.   The foster parents were heard as witnesses at the request of the applicant.   Furthermore, at the request of the Social District Council, the chief doctor Sari Granström and the psychologist Jarkko Rantanen were heard.    In the judgment dated 25 January 1985, the County Administrative Court rejected the applicant's appeal and stated as follows in its reasons:   "The District Council has decided to terminate the care of Susanne.   It follows that (the applicant's) personal circumstances do not as such constitute an obstacle to sending the girl home. (The applicant) is of the opinion that Susanne is not at ease in the foster home which is sometimes expressed in her bashful attitude towards other children.   From the District Council, it has been alleged that a removal of Susanne would involve a risk of harm to her mental health which is not of minor character.   In support of this, the Council has invoked a child psychiatric certificate issued by Sari Grauström and Jaakko Rantanen.   The information given in the certificate has been confirmed by them at the hearing.   It suggests that an immediate removal of Susanne would involve the serious consequences alleged by the District Council, i.e. that Susanne - who is a sensitive, fragile, and vulnerable girl - will lose her security and show psychosomatic symptoms such as enuresis - bedwetting - and stomach pains as well as depressive tendencies.   In addition, it must be recalled that the placement in the foster home - where Susanne apparently feels safe and at home in all respects - must be assessed to be entirely compatible with her best interests.   Against this background, bringing the child home must at present be considered to involve a risk which is not of a minor character.   When balancing this risk against the interests of the custodian - for which the Court, as such, has great sympathy - the County Administrative Court finds the preponderant reasons to be in favour of letting Susanne, until further notice, stay in the (foster home)."           The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) of Stockholm.   The applicant requested that the psychologist Lars Billing should be appointed as an expert.   By a decision of 13 June 1985 the Court rejected this request stating that there were no reasons to ask for an opinion from an expert under Section 24 of the Administrative Court Procedure Act (förvaltningsprocesslagen).   The Court noted however that the applicant was not prevented from submitting such an opinion himself or otherwise from submitting the evidence which he wanted to invoke in the case.           By a judgment of 2 August 1985, the Administrative Court of Appeal rejected the appeal.   In its reasons, the Court stated as follows:           "The aim of the provisions of Section 28 of the Social         Services Act is to safeguard the best interests of the         child.   Among the circumstances which must be considered         in that context is the age of the child, its abilities and         emotional ties.   Furthermore regard must be had, inter         alia, to the child's own wishes and the time that the         child has been cared for in the home from which it is         supposed to be removed.           (Susanne) has been cared for in the foster home since         October 1977 and thus for the major part of her life.         She is considered to be a sensitive child and has had         certain psychosomatic symptoms.   After the County         Administrative Court's examination of the question of         the removal of Susanne, it appears that the relationship         between Susanne and (the applicant) has developed in a         favourable manner.   The Administrative Court of Appeal         finds, however, that an enforced removal still involves         a risk of harming Susanne's mental health, a risk which         is not of a minor character.   The request to lift the         prohibition from taking Susanne away from the foster home         cannot therefore be accepted.   The question as to when         the prohibition can be lifted is dependent upon how the         contacts between (the applicant) and Susanne will develop in         the future.   The Administrative Court of Appeal finds that         the prohibition cannot at present be limited in time."           The applicant appealed to the Supreme Administrative Court (regeringsrätten) which, on 26 March 1986, refused to grant leave to appeal.   COMPLAINTS   1.       The applicant alleges a breach of Article 6 of the Convention. He submits that he has not been entitled to an impartial hearing within a reasonable time.   The main argument against his request for having his daughter returned to him is the long time that the child has spent in the foster home.   However, in 1978 the applicant was already capable of taking care of his daughter.   Ever since the proceedings concerning the legal custody were instituted on 30 November 1981, the proceedings have deliberately and with success been delayed not only by the social authorities but also by the courts.   As an example, it took a remarkably long time for the Supreme Administrative Court to refuse leave to appeal.   Such a decision would normally take six weeks, but in this case it took almost eight months. The case concerning the legal custody in the District Court, the outcome of which ought to be self-evident since the mother was not capable to retain custody, took almost two years.           Moreover, the Administrative Court of Appeal has refused to appoint a psychiatrist as an expert.   This seriously weakened the applicant's procedural position.   2.       The applicant also alleges a breach of Article 8 of the Convention.   He submits that the insurmountable difficulties which he has met since 1978 show that the social authorities do not respect his and his daughter's family life.   The same is true of the handling of the case thereafter.   No health reasons have been proven.   The applicant has had his own home for many years and his situation is well-established.   He is competent to take care of and take the responsibility for his daughter.   But he has been treated almost as a dangerous delinquent with the inclination of seriously harming his daughter.   The child psychiatric investigations which support the social authorities' power over the daughter do not fulfil any reasonable demands on scientific methods or knowledge but are an adaptation to the bureaucracy's request for power and superiority and serve the bureaucracy's and the child psychiatrist's own interests.           Moreover there is a violation of the family's rights since a right of access in the sense that the child should have a right to live together with the father has not been arranged.   If a comparison is made with separated parents, the separated father is normally entitled to have his child with him regularly as well as during vacations, if there are no special reasons against it.   However, when the bureaucracy acts as substitute parents, it is not possible for the natural parent to have a right of access comparable to that of a separated parent.   3.       The applicant also alleges a violation of Article 17 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 28 July 1986 and registered on 1 September 1986.           On 6 October 1987 the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits limited to the complaints under Article 8 of the Convention.           The Government's observations were dated 26 February 1988 and the applicant's observations in reply were dated 26 April 1988.           On 9 December 1988 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.           The hearing was held on 5 July 1989, when the parties were represented as follows:           The Government           Mr.   Hans CORELL              Ambassador, Under-Secretary for                                     Legal and Consular Affairs,                                     Ministry for Foreign Affairs,                                     Agent           Mr.   Leif LINDGREN            Legal Adviser, Ministry of Health                                     and Social Affairs           Mr.   Pär BOQVIST              Legal Adviser, Ministry for                                     Foreign Affairs           The applicant           Mr.   Lennart HANE             Lawyer           The applicant and his wife were also present.   THE LAW   1.       The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which reads as follows in its first sentence:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The applicant alleges that his case has not been determined "within a reasonable time" as required by Article 6 para. 1 (Art. 6-1). He refers to the fact that he instituted proceedings on 30 November 1981 for the purpose of having the civil custody of his daughter transferred to him, and that the issue concerning the prohibition on removal was terminated finally on 26 March 1986 when the Supreme Administrative Court refused leave to appeal.           The Commission considers that the present case involves, on the one hand, proceedings relating to the legal custody of the child and, on the other hand, proceedings concerning the prohibition on removal.   These two sets or proceedings were handled by different courts and must be separated also for the purposes of the examination under Article 6 (Art. 6) of the Convention.           It is another matter that this issue of the length of the different proceedings is also a significant element in the examination of the applicant's complaint under Article 8 (Art. 8) of the Convention.   In that context the different proceedings must be seen as a whole. Consequently, the Commission's examination under Article 6 (Art. 6) of the length of the proceedings will not prejudge its examination of the complaints under Article 8 (Art. 8) of the Convention.           Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter which has been submitted to it within six months from the final decision on the domestic level.   As regards the proceedings concerning legal custody they were terminated on 21 June 1984.   Since the present application was introduced on 28 July 1986, which is more than six months later, it follows that the complaints concerning the proceedings over the legal custody have been introduced out of time and must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.           As regards the duration of the proceedings concerning the prohibition on removal, the Commission notes that the Social Council decided on 16 October 1984 to prohibit removal.   The applicant's appeal to the Administrative Courts was finally rejected when the Supreme Administrative Court refused leave to appeal on 26 March 1986. The time to be taken into account is thus approximately 17 months.   In this period the applicant's appeal was examined by three courts; first by the County Administrative Court which, after a hearing, delivered judgment on 25 January 1985, then by the Administrative Court of Appeal which delivered judgment on 2 August 1985 and finally by the Supreme Administrative Court.           The Commission considers that, although it is of great importance that matters of this nature are dealt with speedily, the duration of the proceedings, in this instance, cannot be said to have exceeded a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) (cf. Eriksson v. Sweden, Comm. Report 14.7.88, paras. 237 - 238 and Eur. Court H.R., Eriksson judgment of 22 June 1989, Series A no. 156, para. 77).           The applicant further complains that the Administrative Court of Appeal did not appoint a psychologist as an expert in accordance with his request.           The Commission observes that the Court refused to obtain an opinion from the proposed psychologist as a court expert.   However, the Court reminded the applicant that he could himself submit such an opinion to the court, or any other evidence he wished to invoke.   The applicant apparently never submitted such an opinion (cf. No. 11119/84, Dec. 17.10.85, unpublished).           In these circumstances, and noting that the applicant was represented by legal counsel before the Administrative Court of Appeal, the Commission finds no indication of a violation of Article 6 para. 1 (Art. 6-1) in this respect.           The applicant finally maintains that he did not receive a "fair hearing".           In accordance with Article 19 (Art. 19) of the Convention, the Commission's task is only to ensure the observance of the obligations undertaken by the Contracting States in the Convention.   The Commission 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 or freedoms set out in the Convention (cf. 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).           The Commission has examined the case in the light of the applicant's submission on this point.   It notes that the applicant was legally represented throughout the proceedings, that there was a hearing before the County Administrative Court and that both the County Administrative Court and the Administrative Court of Appeal delivered fully reasoned judgments.           In such circumstances, and in the absence of any elements suggesting an unfair hearing, the Commission finds that there is no indication that the procedure followed failed to satisfy the condition of a "fair hearing".           The Commission concludes that the applicant's complaints under 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, insofar as they are not inadmissible for failure to comply with the six months rule.   2.       The applicant also complains under Article 8 (Art. 8) of the Convention that the maintenance in force of the prohibition on removal over such a long period constitutes a violation of that provision. The applicant further refers to Article 17 (Art. 17) of the Convention.           Article 8 (Art. 8) of the Convention 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 Government make no objection to the admissibility of the application under Article 26 (Art. 26) of the Convention, apart from the events which have taken place in the period after the Supreme Administrative Court refused leave to appeal on 26 March 1986.   The Government submit that, in respect of the period thereafter, the applicant may submit a fresh request that the prohibition on removal be quashed.   Since the applicant has not done so he has not exhausted domestic remedies in this regard.   As regards the merits of the complaint, the Government submit that, although the prohibition on removal constitutes an interference with the applicant's right to respect for family life as guaranteed by Article 8 para. 1 (Art. 8-1), this interference is justified under the terms of Article 8 para. 2 (Art. 8-2) as being a measure taken "in accordance with the law" and "necessary in a democratic society" to protect the child's interests. The Government conclude that the complaint should be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           The applicant submits that the Commission must also examine what has happened after March 1986.   The prohibition on removal applies until further notice, and there are no new circumstances, apart from the lapse of time, which could justify a fresh application to have the prohibition quashed.   Furthermore, the applicant fears that, if he were to introduce such an application, he would be refused access to his child and the social authorities might start proceedings to take away from him the legal custody over the child.           The Commission recalls that, according to its constant practice, it will consider the facts of a case as they stand at the time of the examination of the case.   In so doing, the Commission will take into account facts which may have occurred in the course of the proceedings before it and after the final domestic decision insofar as those facts constitute a continuation of the facts on which the application is based.   If those facts are susceptible of a possible re-assessment under domestic law, the applicant would normally be required under Article 26 (Art. 26) of the Convention to request a reconsideration of the case.   However, where, as in the present case, there are no significant new facts, apart from the lapse of time, it cannot be required that the applicant again tries the remedy referred to by the Government.           It follows that this part of the application cannot be rejected under Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention for failure to exhaust domestic remedies.           As to the merits, the Commission considers that the applicant's complaints raise in particular the issue whether, in the circumstances of the present case, the prohibition on removal was justified under the second paragraph of Article 8 (Art. 8-2), i.e. whether it was "in accordance with the law" and "necessary in a democratic society" in the child's interest.           After an examination of this issue in the light of the parties' submissions the Commission considers that it raises questions of fact and law which are of such a complex nature that their determination requires an examination of the merits.   This aspect of the application cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.           For these reasons, the Commission           DECLARES INADMISSIBLE the complaints under Article 6         (Art. 6) of the Convention           DECLARES ADMISSIBLE, without prejudging the merits of the         case, the remainder of the application.   Deputy Secretary to the Commission         Acting President of the Commission                 (J. RAYMOND)                               (J.A. FROWEIN)