CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 décembre 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. 14103/88                          by Agneta LUNDBLAD                          against Sweden           The European Commission of Human Rights sitting in private on 10 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 26 June 1987 by Agneta LUNDBLAD against Sweden and registered on 28 August 1988 under file No. 14103/88;           Having regard to the report provided for in Rule 47 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, born in 1948 and resident at Eskilstuna.   She is on early retirement.           The applicant has a daughter, Viktoria, born in 1979.           On 3 January 1987, the Deputy Chairman of the Social Council (socialnämnden) of Enköping decided provisionally to take Viktoria into 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).   Viktoria was taken into care the same day by two social workers and two policemen.           The decision of the Deputy Chairman was confirmed by the County Administrative Court (länsrätten) of Uppsala on 19 January 1987.           On 27 February 1987 the County Administrative Court of Stockholm ordered that Viktoria be taken into care.           On 15 May 1987 the Administrative Court of Appeal (kammarrätten) of Stockholm rejected the applicant's appeal.   It found that the applicant was a person who was constantly on the run from society and its different agencies.   Although this did not as such imply that she could not care for Viktoria, it appeared that the applicant gave priority to her own needs and subjected Viktoria to constant stress and anxiety.   A certificate by a psychologist indicated that Viktoria had psychologically been damaged to a certain extent as a result of her living conditions.   The Court found that the insufficiencies in the applicant's care of Viktoria constituted a serious danger to Viktoria's health and development.   The Supreme Administrative Court (regeringsrätten) refused leave to appeal on 15 June 1987.           The applicant's subsequent request that the care be terminated was rejected by the Social Council on 16 December 1987 and her appeals were rejected by the County Administrative Court and the Administrative Court of Appeal.           A dispute over the applicant's access to her daughter was determined finally by the Administrative Court of Appeal which in a judgment of 24 August 1988 found that the applicant should have access to Viktoria five hours per month in the foster home.           A further request by the applicant that the care be terminated was rejected by the Social Council on 25 January 1989.   Her appeals were rejected by the County Administrative Court and the Administrative Court of Appeal; the latter Court's judgment is dated 11 September 1989.           On 25 September 1990 the Social Council prohibited the applicant's access to Viktoria, including telephone conversations, pending a police investigation concerning suspected sexual abuse of Viktoria by the applicant.           Viktoria has lived in a foster home at Bodafors since 30 March 1987.   COMPLAINTS           The applicant complains that her daughter has been kept in public care and of the manner in which the initial care order was carried out.   She also complains of the restrictions of access during the care.   She invokes Article 8 of the Convention.   THE LAW   1.       The applicant complains of violations of Article 8 (Art. 8) of the Convention, which 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."   2.       As regards the decision to take the applicant's daughter into care, the Commission observes that it follows from the case law of the Convention organs that the taking into care of a child constitutes an interference with the parent's right to respect for family life (cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A No. 130, p. 29, para. 59).   Consequently, there has been an interference with the applicant's right to respect for her family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.           This interference could only be justified under Article 8 (Art. 8) if it was "in accordance with the law", had a legitimate aim under Article 8 para. 2 (Art. 8-2) and was "necessary in a democratic society" for the said aim.           The Commission is satisfied that the care order was "in accordance with the law" and pursued the legitimate aim under Article 8 para. 2 (Art. 8-2) of protecting the health and rights of Viktoria (cf. Olsson judgment, loc. cit., pp. 30-31, paras. 60-65).           As regards the question of whether the public care was "necessary in a democratic society", the Commission recalls that this condition requires that the interference corresponds to a pressing social need and that it is proportionate to the legitimate aim pursued.   In determining whether an interference is "necessary" the Commission will take into account that a margin of appreciation is left to the Contracting States.   It must determine whether the reasons adduced to justify the interference are "relevant and sufficient" (cf. Olsson judgment, loc. cit., pp. 31-32, paras. 67-68).   When examining these questions the Commission will 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).           The Commission recalls the proceedings which have taken place. From the different court judgments it appears that the original care order was based on the applicant's behaviour and failure to give Viktoria sufficient care and that the courts found that the conditions at the applicant's home were such as to jeopardise Viktoria's health and development.   It was therefore considered necessary to place her in public care.           These reasons were, in the Commission's opinion, clearly "relevant" for the care decision and, having regard to the margin of appreciation of the Contracting States and the procedures followed, the Commission also finds that the reasons were "sufficient" and that the Swedish authorities were entitled to think that it was necessary to take Viktoria into care.           It follows that as regards the decision to take Viktoria into care the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       As regards the decisions concerning regulation of access to Viktoria and the decisions concerning continued public care, the Commission observes that the applicant has not shown that she has appealed to the Supreme Administrative Court.   She has therefore not complied with the condition in Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3).   4.       The Commission finds no appearance of any other violation of Article 8 (Art. 8) of the Convention.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission                President of the Commission              (H. C. KRÜGER)                             (C. A. NØRGAARD)