CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.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. 14061/88                       by Yvonne and Ioannis ZISOPOULOS                       against Sweden             The European Commission of Human Rights sitting in private on 7 May 1990, the following members being present:                MM.   C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.C. SOYER                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 10 July 1988 by Yvonne and Ioannis ZISOPOULOS against Sweden and registered on 26 July 1988 under file No. 14061/88;           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 applicants, Mr.   Ioannis and Mrs.   Yvonne Zisopoulos, who are husband and wife, were born in 1947 and 1952 respectively.   They are Swedish citizens and live at Spånga in Sweden.   By profession, the husband is a shop manager and the wife is a cleaner.   Before the Commission the applicants are represented by Mr.   Lennart Möller, a lawyer practising in Stockholm.           The applicants have a son, Konstantin, born in 1984.           On 5 July 1984, the day after Konstantin was born, the Eastern Social District Council (östra sociala distriktsnämnden) of the municipality of Solna took Konstantin into immediate care 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 1980 Act").   Konstantin was placed in the Klingsta children's home.           On 30 July 1984, on the basis of a report on social and medical investigations, the District Council filed a request with the County Administrative Court (länsrätten) of Stockholm that the applicant's son be taken into care pursuant to Section 1 para. 2 (1) of the 1980 Act.   On 20 August 1984 the County Administrative Court ordered that the son be taken into care under the 1980 Act.           The applicants appealed to the Administrative Court of Appeal (kammarrätten) of Stockholm.   On 26 February 1985 the Administrative Court of Appeal confirmed the judgment of the County Administrative Court.           The applicants appealed to the Supreme Administrative Court (regeringsrätten), which refused leave to appeal on 7 July 1985.           In September 1985 Konstantin was placed in the foster home of Mr. and Mrs.   Agermo in the Stockholm area, where he is still staying.           In the meantime on 30 April 1985, the Social Council decided pursuant to Section 16 (1) of the 1980 Act to restrict the applicants' access to their son to once a month and once at Christmas and Easter and on the son's birthday and name-day.   The applicants appealed to the County Administrative Court which, on 20 July 1985, confirmed the restrictions.           Following a request of 11 February 1986 by the applicants for the termination of the care of their son, it was decided that the applicants should participate in an investigation at the Child Psychiatric Ward at the Karolinska Hospital, where the relations between the parents and their son should be observed.   It was also decided that the National Board of Health and Social Welfare (socialstyrelsen) should be consulted.           The applicants thus stayed with their son daily from 7 May to 3 June 1986 at the Child Psychiatric Ward of the hospital.           On 16 January 1987 the Social Council rejected the request for termination of the care on the ground that the applicants' psychological condition constituted a danger to their son's health and development. The decision was based mainly on the medical report obtained from the Child Psychiatric Ward and the statement from the National Board of Health and Social Welfare, which both concluded that the parents were still unable to respond to the child's emotional needs and to satisfy his demand for security.           The applicants appealed to the County Administrative Court. They applied for the termination of the care; in the alternative they demanded that access to their son be extended.   Having been considered schizophrenic, the applicants raised the question whether a schizophrenic person is generally unable to take care of a child.   The Court held hearings on 26 and 27 May and on 22 June 1987 at which the applicants were present and assisted by counsel under the Legal Aid Act (rättshjälpslagen).   The son was represented by officially appointed counsel.   At the request of the applicants, Dr.   D., a psychologist who since November 1984 had been in continuous contact with the applicants, gave evidence, as did some other witnesses.   Chief doctor G.B. at the Child Psychiatric Ward was heard as a witness.   The nurse K.H. and the welfare officer H.K., both of whom were members of the team observing the family during the investigation at the Child Psychiatric Ward, were heard as witnesses.   During the hearings various written opinions from the medical files were examined.           In its judgment of 20 July 1987, the County Administrative Court rejected the appeal.   It stated inter alia:   "The investigation indicates that Ioannis' as well as Yvonne's health is better or in any case more stable than earlier.   The Court can therefore no longer maintain that it is the parents' illnesses or what remains thereof that cause their ability or inability to satisfy Konstantin's needs, which it is now the task for the Court to examine.     ...   As regards Ioannis' and Yvonne's ability to take care of Konstantin, the examination indicates the following.   Both parents have difficulties to satisfy Konstantin's emotional needs.    As to their practical ability, when taking care of Konstantin, Yvonne proves to be awkward and Ioannis is not interested in helping her with the practical problems that the care situation demands, except for shorter periods when elements of pleasure and play characterise the situation.   The parents' undeveloped emotional relation does not allow them to realise and satisfy their own needs, which in itself makes the situation more complicated.   Having regard to this the Court finds that Ioannis and Yvonne (cannot be regarded as) able to take care of Konstantin or to give him the security which is required of them for terminating the public care..."           As to the applicants' question whether a schizophrenic person is generally unsuitable to care for children, the Court replied as follows:   "The Court always examines each case on the basis of the facts in the particular case.   The Court's experience is that schizophrenia is always a serious element of risk when it comes to satisfying another person's needs, in particular emotional needs.   In any case when the individual has an attack of his sickness he is normally unable to cope with his own and others' practical needs.   In practice the decisive factors in the individual case are the parent constellation and what other close human contacts the sick parent has."           The applicants appealed to the Administrative Court of Appeal in Stockholm which, on 10 November 1987, held a hearing at which the applicants were present and were assisted by a lawyer under the Legal Aid Act.   The child was represented by officially appointed counsel. In a judgment of 4 December 1987 the Administrative Court of Appeal confirmed the judgment of the County Administrative Court.   The Court shared the County Administrative Court's assessment that the applicants' psychological illness, although the parents still suffered from a lingering psychological weakness, in itself no longer prevented lifting the public care.           The Administrative Court of Appeal found however that the result of the investigation and other facts of the case, submitted to the County Administrative Court and being decisive for its judgment, were not entirely conclusive.   In making an overall assessment the Court stated:   "The acute deficient conditions in the home environment, which were at the basis of the decision on public care of the child under the 1980 Act, cannot be considered as continuing.   Having regard to the general consideration accounted for above and with particular regard to the result of the investigation carried out at the Child Psychiatric Ward, the Administrative Court of Appeal finds that it is still not possible to transfer to the parents the responsibility for the care of their son.   The care under the 1980 Act shall therefore continue."           The Court also considered that an extended right of access could probably involve a more mutual contact between the parents and Konstantin which could be to Konstantin's advantage in his further development.           Two lay assessors dissented.   They considered that the care order should be lifted.           The applicants appealed to the Supreme Administrative Court (regeringsrätten) which, on 29 January 1988, refused leave to appeal.   COMPLAINTS   1.       The applicants complain that Konstantin's separation from his natural parents and his home without any justifiable reason violates Article 8 of the Convention.   2.       The applicants further allege that the background of one of the applicants - his specific culture and way of life as a Greek immigrant - may explain the above encroachment on the applicants' rights.   In their view this is an interference with their rights under Article 8 of the Convention which is not based on objective grounds but on the national origin of one of the applicants and hence constitutes a violation of Article 14 of the Convention.   THE LAW   1.       The applicants allege a violation of Article 8 (Art. 8) of the Convention on the ground that their son is kept in public care without sufficient reasons.           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 mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life.   Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, para. 59).   It follows that the measure at issue, i.e. the decision not to terminate the care, amounted to an interference with the applicants' right to respect for their family life as protected 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.           It is established that the relevant provisions of the 1980 Act with Special Provisions on the Care of Young Persons satisfy the requirement of the quality of the law inherent in the notion of "law" (cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, pp. 30-31, paras. 60-63).   The Commission finds no elements in the present case which suggest that the refusal to terminate the care was contrary to Swedish law.   In these circumstances the Commission is satisfied that the interference was taken "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.           The Commission further considers that the interference had a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests of the child, which falls under the expressions "for the protection of health and 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.           According to the case-law the notion of necessity implies that the interference corresponds to a pressing social need.   A margin of appreciation is left to the Contracting States.   However, the Convention organs' review is not limited to ascertaining whether a respondent State has exercised its discretion reasonably, carefully and in good faith.   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. above-mentioned Olsson judgment, pp. 31-32, paras. 67-68).           In the present case, the applicants allege that the refusal to terminate the care of the child was based on insufficient reasons.           The Commission recalls that both the County Administrative Court and the Administrative Court of Appeal held oral hearings.   The applicants were present at both hearings and assisted by a lawyer on these occasions.   The Courts heard several persons, including the head of the Child Psychiatric Ward, where the applicants and their child had been observed.   Also the nurse and the welfare officer belonging to the team at the Child Psychiatric Ward were heard.   Reports compiled by the social administration and medical files and reports compiled by the Child Psychiatric Ward were available to the courts. These reports were in turn supported by a number of persons well acquainted with the case.   Before the courts the applicants had the possibility of presenting any argument or document, which in their opinion could be relevant.   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.           However the refusal to terminate the care of the child must also be supported by sufficiently sound and weighty considerations since such a decision is a serious interference with the right protected under Article 8 para. 1 (Art. 8-1).   In order to determine whether in the present case the reasons given can be considered "relevant and sufficient" for the purposes of Article 8, the Commission must further examine the reasons adduced by the courts and the evidence that was available to them.           As regards the reasons for the refusal to terminate the care of the child, the Commission notes the findings of the courts as quoted above.   The Administrative Court of Appeal found that, although the applicants still suffered from a lingering psychological weakness, this was not in itself sufficient for continuing the care.   The Court nevertheless found that at the relevant time it was not yet possible to lift the care order.   This finding was based, in particular, on the results of the investigation carried out at the Child Psychiatric Ward. The Commission further recalls that the refusal to terminate care was based on a report compiled by the social administration, including the medical report compiled by the Child Psychiatric Ward, where the family had stayed for investigation.   These reports were in turn supported by statements from persons well acquainted with the case, including a chief doctor, a nurse and a welfare officer.   Above all, the County Administrative Court's judgment, as well as that of the Administrative Court of Appeal, were founded not only on written material but also on hearings in the presence of the applicants.           In this context, the Commission observes that in general it is justifiable not to terminate public 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 parents, only to be taken into care again shortly afterwards (cf. above-mentioned Olsson judgment, p. 35, para. 76 in fine).           In the light of the foregoing the Commission finds that the Swedish authorities had "sufficent" reason for thinking that it was necessary for the care decision to remain in force.           Accordingly the Commission finds that the refusal to terminate the care 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.   2.       The applicants further complain that the first applicant has been discriminated against on account of his national origin.   They allege a breach of Article 14 (Art. 14) of the Convention, which prohibits discrimination on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status, in relation to the enjoyment of the rights and freedoms set forth in the Convention.           However, the Commission finds nothing in the case file to substantiate this allegation.           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)