CEDH · CASELAW;REPORTS;ENG — 2 octobre 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 }    Application No. 12366/86   Antero RIEME   against   SWEDEN   REPORT OF THE COMMISSION   (adopted on 2 October 1990)                           TABLE OF CONTENTS                                                               page     I.    INTRODUCTION (paras. 1-14) ...........................    1        A.   The application          (paras. 2-4)   ....................................    1        B.   The proceedings          (paras. 5-10) ....................................    1        C.   The present Report          (paras. 11-14) ...................................    2   II.   ESTABLISHMENT OF THE FACTS (paras. 15-37) ............    3        A.   The particular circumstances of the case          (paras. 15-28) ...................................    3        B.   Relevant domestic law          (paras. 29-37) ...................................    8   III. OPINION OF THE COMMISSION (paras. 38-67) .............   11        A.   Complaint declared admissible (para. 38) .........   11        B.   Point at issue          (para. 39) .......................................   11        C.   Article 8 of the Convention          (paras. 40-66) ...................................   11            a.   Complaints and submissions (para. 41) ........   11            b.   Whether there was an interference with              the applicant's right to respect for his              family life (paras. 42-45) ..................    11            c.   Whether the interference was in accordance              with the law (paras. 46-52) .................    12            d.   Whether the interference pursued a legitimate              aim (para. 53) ..............................    13            e.   Whether the interference was "necessary in a              democratic society" (paras. 54-66) ..........    13         D. Conclusion (para. 67) ...........................    17   Dissenting opinion of Mr.   H. Danelius joined by MM. J.A. Frowein, E. Busuttil and F. Martinez ............    18   Dissenting opinion of Mr.   H. G. Schermers ................    19   Concurring opinion of Mrs.   G. H. Thune ....................   20   Concurring opinion of Mrs.   J. Liddy .......................   21   Concurring opinion of Mr.   L. Loucaides ....................   22     APPENDIX I :   HISTORY OF THE PROCEEDINGS ..................   23   APPENDIX II:   DECISION ON THE ADMISSIBILITY ...............   25   I.       INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant is a Finnish citizen, born in 1940 and resident at Tumba.   He is represented before the Commission by Mr.   Lennart Hane, a lawyer practising in Stockholm.   3.       The application is directed against Sweden.   The Government are represented by their Agent, Mr.   Hans Corell, Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.   4.       The case relates to the public care and the prohibition on removal from the foster home of the applicant's daughter and it raises issues under Article 8 of the Convention.   B.       The proceedings   5.       The application was introduced on 28 July 1986 and registered on 1 September 1986.   The Commission decided on 6 October 1987, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application with regard 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.   6.       On 4 December 1988 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.           At the hearing, which was held on 5 July 1989, the applicant was represented by Mr.   Lennart Hane.   The applicant and his wife were also present at the hearing.           The Government were represented by their Agent, Ambassador Hans Corell and as advisers Mr.   Leif Lindgren, legal adviser at the Ministry of Health and Social Affairs, and Mr.   Pär Boqvist, legal adviser at the Ministry for Foreign Affairs.   7.      Following the hearing the Commission, on 5 July 1989, declared the application inadmissible with regard to certain complaints under Article 6 of the Convention and admissible with regard to the remaining complaints, mainly under Article 8 of the Convention.   8.        On 10 October 1989 the text of the decision on admissibility was communicated to the parties who were invited to submit any additional observations or further evidence they wished to put before the Commission.   The applicant submitted observations by letter dated 20 November 1989 and the Government by letters dated 24 November 1989 and 9 January 1990.   9.       On 17 March 1989 the Commission decided that legal aid should be granted to the applicant.   10.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.       The present Report   11.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                         MM.   J.A. FROWEIN, Acting President                            F. ERMACORA                            E. BUSUTTIL                            A.S. GÖZÜBÜYÜK                            A. WEITZEL                            J.C. SOYER                            H.G. SCHERMERS                            H. DANELIUS                       Mrs.   G.H. THUNE                       MM.   F. MARTINEZ                            C.L. ROZAKIS                       Mrs.   J. LIDDY                       Mr.   L. LOUCAIDES           The text of the Report was adopted by the Commission on 2 October 1990 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           (1)      to establish the facts, and           (2)      to state an opinion as to whether the facts found                 disclose a breach by the State concerned of its                 obligations under the Convention.   13.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   14.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   15.       The applicant has a daughter, Susanne, together with Mrs.   AJ. Susanne was born on 28 October 1976.   Mrs.   AJ had the legal custody of Susanne from her birth.   When Susanne was eleven months old, the Southern Social District Council (södra sociala distriktsnämnden; hereafter "the Social Council") of Södertälje, on 26 September 1977, decided that the daughter should be taken into care pursuant to Sections 25(a) and 29 of the 1960 Child Welfare Act (barnavårdslagen). Shortly thereafter Susanne was placed in a foster home.   She lived in this foster home until the autumn of 1989.   Thereafter she has lived with the applicant.   16.       On 30 November 1981 the applicant instituted civil proceedings before the District Court (tingsrätten) of Södertälje requesting that the custody of Susanne 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.           In the judgment the Court stated inter alia as follows:   "As a background to the reasoning which will follow, the Court expresses the opinion that there appear to be very strong reasons not now - nor maybe in the reasonably near future - to move Susanne from the home where she has stayed in good conditions since a tender age.   It is apparent that Susanne is well settled in the foster home, and that she is secure and at home there and regards the foster family as her own home.   Consequently, the placement in the home appears to be compatible with her best interests ...   ...   (The applicant) shows an active interest in Susanne.   In any case during the last years he has endeavoured to keep contact with her and to meet her.   It cannot be denied that (the applicant's) endeavours may appear unwise for an outsider in view of her best interests.   However, the District Court considers that unreasonably high demands on insight cannot be put in this respect.   (The applicant's) wish to take care of the girl himself appears nevertheless natural and his attitude is certainly shared by many although it does not fully correspond to a modern view on children and their needs.   As has been said before, a transfer of the custody of Susanne to (the applicant) would not lead to the termination of the placement in the foster home.   On the other hand, he would be given a possibility to have the issue legally examined in the light of the changes in the child's and his own conditions which may occur in the future.   Furthermore, a transfer could stimulate further contacts between (the applicant) and his daughter which, in the long run, would be valuable to her.   The Social Council can see to it that such contacts do not conflict with the child's best interests."   17.      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.   18.       On 19 October 1983 the applicant submitted a request to the Social Council that the public care of Susanne be terminated.   The Social Council held a hearing at which the applicant, his wife and his representative were present.   The applicant claimed that the Council should decide about the applicant's right of access to his daughter at regular intervals.   On 16 October 1984 the Social Council decided to terminate the public care of Susanne and, pursuant to Section 28 of the Social Services Act (socialtjänstlagen), to prohibit the applicant from taking Susanne away from the foster home, on the ground that there was a risk which was not of a minor character that Susanne's mental health would be harmed if she were separated from the foster home.   No decision was made with regard to the claim for access regulation.   19.      The decision of the Council was based on a report, submitted to it by the social welfare officers responsible for the matter.   A psychiatric opinion by an authorised psychologist, Jarkko 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 :   "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 natural 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 support required 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 has 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 natural father requires that the relationship between him, his present wife and Susanne be developed and deepened.   Furthermore, it requires that Susanne be 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 natural 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 natural 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."   20.      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 counsel.   The foster parents were heard as witnesses at the request of the applicant.   Furthermore, at the request of the Social 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 Social 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.   The Social Council has alleged that a removal of Susanne would involve a risk of harm to her mental health which is not of a minor character.   The Council has relied on a child psychiatric opinion by Sari Granström and Jarkko Rantanen. The information given in the opinion has been confirmed by them at the hearing.   It suggests that an immediate removal of Susanne would involve the serious consequences alleged by the Social 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)."   21.      The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) of Stockholm.   22.      In submissions to the Administrative Court of Appeal dated 3 June 1985 the Social Council stated inter alia:   "The Council has the greatest understanding and respect for (the applicant's) longing for Susanne.   However, it is first and foremost Susanne's best interest we must see to and we consider it to be (the applicant's) right and duty towards Susanne, by way of a slowly and successively developed contact, to create a close relation to her which will make them feel a really mutual security together.   Thereafter Susanne should of course return home.   It is impossible to calculate how long this will take.   It would create great legal insecurity for Susanne if a fixed time limit were set."   23.      In a memorandum of 14 June 1985 also addressed to the Administrative Court of Appeal, the responsible social secretary stated that Susanne, at her own request, stayed over night with the applicant three times during the last two months and that Susanne had said that she wished to continue to meet her father every second week and stay over night only one night to begin with.   24.      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 are 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 against taking Susanne away from the foster home         cannot therefore be granted.   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."   25.      The applicant appealed to the Supreme Administrative Court (regeringsrätten) which, on 26 March 1986, refused leave to appeal.   26.      As from May 1986 Susanne stayed overnight every second week-end with the applicant and his wife.   In the summers of 1986 and 1987 she spent parts of her holidays with them.   She also stayed with the applicant about one week during Christmas 1987, Easter 1988 and New Year 1988-1989.   In a memorandum dated 15 December 1987 the Social Council stated as follows:   "The measures which have been taken to bring about more frequent contacts and a possible transfer have essentially been to support Susanne and the foster home in order to make the visits and the holidays with the father as natural as possible.   In addition, the foster home ... has received support to take initiative to better contact with the father.   Susanne's own will is considered to be of great importance and her feelings of the contact with the father have been monitored regularly.   Susanne is mature for her age and has more and more been able to express her own will to the foster home and the father.   Consequently, her own wishes about how the contact with the father should be arranged have been decisive.   More frequent contacts and a possible transfer to the father are allowed to develop in the girl's speed.   Antero Rieme has since the autumn of 1985 declined contact with the social authorities.   As the father has previously said that he is prepared to cut off the contact with the daughter, the social authorities have found it of great importance to point out that it is important that he maintains the contact with Susanne, not least for her own sake.   As the social authorities have no contact with Antero Rieme there are obstacles to work actively for a better relation between him and the foster home, which with the support of the social authorities invite the father to talks and contacts.   In view of Susanne's age and maturity the social authorities have paid the greatest attention to her own will.   Susanne has since the age of one year stayed in the foster home and has strong emotional bonds with the foster parents.   The continued development of the contacts between Susanne and the father must therefore follow her own speed and a transfer shall take place when she so wishes."   27.      On 1 September 1989 the applicant requested that the prohibition on removal be terminated.   An investigation was made by the Social Administration.   In the report dated 25 October 1989 to the Social Council the following is said:   "Susanne is a sensitive child who earlier showed psychosomatic symptoms such as bed wetting, stomach pains and head ache.   These troubles have disappeared some years ago.   In 1985 Susanne started to stay over night with her father some night and from 1986 she has regularly stayed with him every second week-end.   She has also been on holiday with the father and his wife and has spent some school holidays with them.   Susanne has said that she has been satisfied with the contact she has had and that she wished to stay with (the foster parents).   The contact with the father has developed in the girl's own speed.   She herself indicated when she has felt herself ready to stay over night and go on holiday with the father.   This summer Susanne has been on holiday with the Rieme couple and has, as from the school-start in August 1989, on probation, stayed with them after agreement between the father, the foster home and Susanne.   She still attends her school in Södertälje, which according to herself is very important for her.   The contact between (the foster parents) and (the applicant) has been very tense over the years and they have for long periods not had any contact at all.   Susanne has had a difficult task to go between the families.   She seems to have managed and shows that she is attached to both her couples of parents.   The two families now co-operate in Susanne's best interests about her living and the future contacts with the foster home.   Susanne has no contact with her natural mother.   ...   Antero and Anita Rieme have shown that they take great account of Susanne's wishes and they have great understanding for the girl's difficulties to move from the foster home where she has grown up...   Summary and assesment   Susanne is a 13 year old girl who has been in a foster home since she was one year old.   She has had frequent, and successively increasing contacts with her father, Antero Rieme, and his wife, Anita.   Since the end of August 1989 Susanne is staying with the Riemes and she sees her foster parents as often as she wishes.   Both families co-operate in her best interests.   It is important that Antero Rieme is now also given the factual care of Susanne.   Both families have every possibility to plan in the best interests of Susanne.   The present status of the girl is good, she is attached to both families and attention is being paid to her wishes.   Therefore, the prohibition on removal ought to be terminated."   28.      On 20 November 1989 the Social Council terminated the prohibition on removal.   B.       Relevant domestic law   29.      Provisions regulating the custody of a child appear in the Parental Code (föräldrabalken).   A decision on the taking of 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 public care order or a prohibition on removal.   A care order or a prohibition on removal 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.   30.       Since 1 January 1982 the basic rules on public responsibility for young persons are laid down in the Social Services Act.   This Act contains provisions regarding supportive and preventive measures taken with the approval and consent of the individuals concerned.   Decisions which had been taken under the 1960 Child Welfare Act, and which were still in force on 31 December 1981, were considered to be decisions taken under the new legislation, whether it be the Social Services Act or the 1980 Act with Special Provisions on the Care of Young Persons (lagen med särskilda bestämmelser om vård av unga;   hereinafter "the 1980 Act").   As from 1 July 1990 the relevant legislation has been amended (cf. para. 37 below).   The following account concerns the law as it was in force at the relevant time.   31.      The 1980 Act is concerned with cases where the parents do not give their consent to the necessary measures.   Under Section 1 paras. 1 and 2 of the 1980 Act compulsory care may be provided for a young person, inter alia,   if the lack of care for him or any other condition in the home entails a danger to his health or development.   32.      According to Section 5 of the 1980 Act, the Social Council is obliged to monitor carefully the care of young persons who are in care under the Act and "the Council shall decide to terminate care under the Act when such care is no longer necessary".   33.      The Social Council may issue a prohibition on removal under Section 28 of the Social Services Act, which reads as follows:   (Swedish)   "Socialnämnden får för viss tid eller tills vidare förbjuda den som har vårdnaden om en underårig att ta denne från ett hem som avses i 25 §, om det finns risk som inte är ringa för att barnets kroppsliga eller själsliga hälsa skadas om det skiljs från hemmet.   Om det finns sannolika skäl för att en sådan risk föreligger men den behövliga utredningen inte har kunnat slutföras, får ett tillfälligt förbud meddelas att gälla i avvaktan på att ärendet kan slutligt avgöras, dock högst fyra veckor.   Ett förbud enligt denna paragraf hindrar inte att barnet skiljs från hemmet på grund av ett beslut enligt 21 kap. föräldrabalken."   (English translation)   "The Social Council may for a certain period of time or until further notice prohibit the guardian 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.   If there are reasonable grounds for assuming that there is such a risk, although the necessary investigations have not been completed, a temporary prohibition may be issued for a maximum period of four weeks, pending the final decision in the matter.   A prohibition issued under this Section does not prevent a removal of the child from the home on the basis of a decision under Chapter 21 of the Parental Code."   34.      Section 28 of the Act does not apply to children who are being cared for in foster homes under Section 1 of the 1980 Act.   As long as such care continues, the right of the guardian to determine the domicile of the child is suspended.   That right is in principle returned to the guardian if the public care of the child is terminated.   However, that right may be further suspended by a prohibition on removal under Section 28 of the Social Services Act.   35.      The travaux préparatoires of the Act (Government Bill 1979/ 80:1, p. 541) state that only a passing disturbance or other occasional disadvantage to the child is not a sufficient ground for issuing a prohibition on removal.   Among the elements which shall be considered are the age of the child, the degree of development, character and emotional ties.   The time the child has been cared for away from the parents must also be taken into account as well as the living conditions the child has and the conditions it will come to, and parents' contacts with the child during the period they have been separated.   An important element which must be considered in connection with a possible decision on the prohibition on removal is the child's own preference.   If the child has reached the age of 15 years, its preference must not be opposed without good reasons.   The child's preferences can be of importance in considering the risk of harm to the child as a result of a removal.   36.      The Standing Social Committee of the Parliament stated in its report (SoU 1979/80:44, p. 78), inter alia, that a prohibition might be issued if removal could involve a risk of damage to the child's physical or mental health.   The Committee stressed that the provision was aimed at safeguarding the best interests of the child and that those interests must prevail whenever they conflict with the guardian's interest in deciding the domicile of the child.   The Committee pointed out that a separation generally involves a risk of harm to the child.   Repeated transfers and transfers which take place after a long time, when the child has developed strong links with the foster home, should thus not be accepted without good reasons.   The child's need for secure relations and living conditions must be decisive in any decision on these questions.   37.      On 1 July 1990 a new Act with Special Provisions on the Care of Young Persons entered into force.   The provisions relating to prohibitions on removal have been transferred from the Social Services Act to the new Act.   The County Administrative Court shall, at the request of the Social Council, decide on issues concerning a prohibition on removal.   The conditions for issuing a prohibition are said to be the same as in Section 28 of the Social Services Act (para. 33) although the text now reads that "a prohibition may be issued if there is an apparent risk (påtaglig risk) that the young person's health and development will be harmed if he is separated from the home".   The Social Council shall, at least every three months, examine whether the prohibition is still required.   It may also decide on questions of the parents' access to the child during the prohibition on removal.   III.     OPINION OF THE COMMISSION   A.       Complaint declared admissible   38.      The Commission has declared admissible the applicant's complaint that he has been the victim of a violation of his right to respect for family life as a result of the long duration of the prohibition for him from removing his daughter from the foster home.   B.       Point at issue   39.      The issue to be determined is whether there has been a violation of Article 8 (Art. 8) of the Convention.   C.       Article 8 (Art. 8) of the Convention   40.      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."   a.       Complaints and submissions   41.      The applicant alleges a violation of Article 8 (Art. 8) of the Convention on the ground that his reunification with his daughter has been unreasonably delayed.   He submits that he initiated proceedings in 1981 to obtain custody of his daughter and only recently has his daughter been returned.   The protracted proceedings and in particular the maintenance in force of the prohibition on removal from 16 October 1984 until 20 November 1989 were not justified under Article 8   (Art. 8). The applicant also invokes Article 17 (Art. 17) of the Convention in support of his application.   The Government submit that, although the prohibition on removal constituted an interference with the applicant's right under Article 8 para. 1 (Art. 8-1), it was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention. The development of the case and the return of the daughter show that the measures taken by the social authorities have achieved their aim.   b.       Whether there was an interference with the applicant's right         to respect for his family life   42.      The Commission recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that the family relationship is not terminated by reason of the fact that the child has been taken into public care or is in a foster home under a prohibition on removal (see e.g. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A. no. 130, p. 29, para. 59, and Eriksson judgment of 22 June 1989, Series A. no. 156, p. 24, para. 58).   Furthermore, in proceedings which relate to a parent's future relations with his child and concern a fundamental element of family life, an effective respect for family life requires that the questions involved are determined solely in the light of all relevant considerations and not by the mere passage of time (cf. Eur. Court H.R., H. v. the United Kingdom judgment of 8 July 1987, Series A no 120-B, p. 64, para. 90).   43.      The Commission recalls that the applicant obtained the legal custody of his daughter on 28 September 1983 following the District Court's judgment.   In principle, the applicant was then entitled to take care of his daughter.   However, at that time the daughter was in the foster home under a care order which remained in force until 16 October 1984 when the Social Council - following the applicant's request of 19 October 1983 - lifted the care order.   On the same day the Social Council issued a prohibition on removal which remained in force until 20 November 1989, i.e. for over five years and one month.   44.      The Commission finds that these facts constitute an interference with the applicant's right to respect for his family life guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention (cf. above-mentioned Eriksson judgment, p. 24, para. 58).   45.       Consequently, it must be examined whether the interference was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention.   In order to be justified under this provision an interference must satisfy three conditions: it must be "in accordance with the law", it must pursue one of the aims enumerated in Article 8 para. 2 (Art. 8-2) and it must be "necessary in a democratic society" for that aim.   c.       Whether the interference was "in accordance with the law"   46.      The phrase "in accordance with the law" has been analysed by the Convention organs on several occasions.   The Commission recalls the following general principles.   47.      The word "law" covers both written and unwritten law.   It refers primarily to domestic law and the phrase means that any interference must be based on such law.   However the phrase includes two requirements which go beyond simple compliance with the domestic law.   These requirements relate to the quality of the law and can be summarised under the headings "accessibility" and "foreseeability". Moreover, there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by Article 8 para. 1 (Art. 8-1).   A law which confers a discretion on the authorities must indicate the scope and manner of exercise of any such discretion with sufficient clarity to afford the necessary protection (cf. Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A no. 30, pp. 30-33, paras. 47 - 52 and the above-mentioned Eriksson judgment, p. 24, para. 59).   48.      The applicant submits that the interference was not "in accordance with the law", whereas the Government submit that it was in accordance with Swedish law.   49.      The Commission first notes that under the case-law of the Convention organs the relevant provisions of the 1980 Act and the Social Services Act regarding public care and prohibition on removal must be considered to satisfy the requirements under Article 8 para. 2 (Art. 8-2) of the Convention as to accessibility and foreseeability (see above-mentioned Olsson judgment, p. 30, para. 62 and Eriksson judgment, p. 24, paras. 59-60).   50.      Consequently, the issue which arises regarding conformity with the law does not concern the quality of the applicable Swedish law but is limited to the question whether the prohibition on removal was consistent with that law.   Here, it is recalled that the Commission's power to review compliance with domestic law is limited : it is in the first place for the national courts to interpret and apply that law (see above-mentioned Eriksson judgment, p. 25, para. 62).   51.      The Commission notes that the prohibition on removal was imposed by the Social Council without any limitation in time.   On the applicant's appeal this decision was confirmed first by the County Administrative Court and then by the Administrative Court of Appeal. The decision to prohibit removal was consequently taken after a full examination carried out successively by the Social Council, the County Administrative Court and the Administrative Court of Appeal.   The Supreme Administrative Court refused leave to appeal.   52.      Having examined, in particular, the judgments of the County Administrative Court and the Administrative Court of Appeal, the Commission finds no indication that the issuing of the prohibition on removal and the maintenance in force of that prohibition was contrary to Swedish law.   It is satisfied that the prohibition was "in accordance with the law" for the purpose of Article 8 para. 2 (Art. 8-2) of the Convention.   d.       Whether the interference pursued a legitimate aim   53.      The Commission finds that the prohibition on removal was aimed at protecting the interests of the child, which interests fall within the expressions "the protection of health" and "the protection of the rights and freedoms of others", which are both legitimate aims under Article 8 para. 2 (Art. 8-2).   e.       Whether the interference was "necessary in a democractic society"   54.      "Necessary" in this context requires that the interference corresponds to a "pressing social need".   It is for the national authorities to make the initial assessment of the necessity of a given interference.   In the Court's view the national authorities have a "margin of appreciation" in making this assessment but the decisions of the domestic authorities are subject to a review by the Convention organs (see e.g. Eur. Court H.R., Handyside judgment of 7 December 1976, Series A no. 24, pp. 22-24, paras. 48-50).   55.      Furthermore, an interference with a Convention right cannot be regarded as "necessary in a democratic society" unless it is proportionate to the legitimate aim pursued (see e.g. Eur. Court H.R., Leander judgment of 26 March 1987, Series A no. 116, p. 25, para. 58). When deciding whether an interference is necessary the Convention organs cannot confine themselves to considering the impugned 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 are "relevant and sufficient" (cf. above-mentioned Olsson judgment, pp. 31-32, paras. 67-68).   When examining these questions they should take into account that Article 8 (Art. 8) includes a procedural requirement that in child-care cases the parents must have been sufficiently involved in the decision-making process (see Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para. 64).   56.      The Convention organs have previously been seised with cases concerning the necessity of a prohibition on removal, notably the above-mentioned Eriksson case and the Nyberg case (Comm. Report 15.3.90, Nyberg v. Sweden to be published in Eur. Court H.R., Series A no. 181-B).   In the Eriksson case the Court made the following statement (pp. 21-22, paras. 70-71):   "70.     The original decision to prohibit Mrs Eriksson from removing her daughter from the foster home may well, in the circumstances of the case and having regard to the margin of appreciation accorded to the Contracting States in this area, be said to satisfy this requirement.   71.      In cases like the present a mother's right to respect for family life under Article 8 (Art. 8) includes a right to the taking of measures with a view to her being reunited with her