CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1992

.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. 19905/92                       by T.Y.                       against Sweden         The European Commission of Human Rights sitting in private on 14 October 1992, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER              Mr.    M. de SALVIA, Secretary to the First Chamber.         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 March 1992 by T.Y. against Sweden and registered on 27 April 1992 under file No. 19905/92;         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 applicant is a Finnish citizen born in 1950. He is a car mechanic by profession and resides at Köping, Sweden. He is the father of three children, Maria, Helen and Susan H., born out of wedlock in 1977, 1979 and 1980, respectively. The mother of the children U.-B.H., has custody of them.         The facts of the case, as submitted by the applicant and apparent from the documents submitted, may be summarised as follows.   Particular circumstances of the case         In 1981 the mother and the children left the applicant, then resident in Finland, and settled in Sweden.         In June 1985 the children were taken into care by the County Administrative Court (länsrätten) of Jönköping at the request of the Social Welfare Board (socialnämnden) of Värnamo, and placed in foster homes. The care order was issued under Section 1, subsection 2, para. 1 of the 1980 Act with Special Provisions on the Care of Young Persons (lag 1980:620 om särskilda bestämmelser för vård av unga, hereinafter "the 1980 Act").         In 1987 the applicant instituted proceedings against U.-B.H. before the District Court (tingsrätten) of Västervik, requesting that the custody of the children be transferred to him, alternatively that he be granted visiting-rights. At the time he had not seen his children since November 1981. In the course of the proceedings he withdrew his request for custody.         The Social Welfare Board of Västervik considered that U.-B.H. should remain the children's custodian.         On 22 October 1987 the District Court rejected the applicant's action.         On 23 March 1988 the Göta Court of Appeal (Göta hovrätt), upon the applicant's appeal, partly quashed the District Court's decision and granted the applicant the right to visit Susan once a month under the supervision of the Social Welfare Board of Värnamo. As regards Maria and Helen the appeal was rejected.         On 8 December 1988 the Social Welfare Board decided pursuant to Section 16, subsection 1 of the 1980 Act to prohibit the applicant's access to Susan (kontaktförbud).         The Board noted the decision of the Göta Court of Appeal. The Board's decision was made at the request of a social welfare officer who had been in contact with the children during their stay in the foster homes and who had met Susan and her foster parents during the autumn in 1988.         On 3 May 1989 the prohibition of access was maintained.         The applicant appealed to the County Administrative Court.         On 10 July 1989 the child and youth psychiatric clinic of Halmstad (hereinafter "the Clinic") submitted an opinion according to which Susan had, inter alia, been showing signs of a neurotic disturbance due to strains during her adolescence and was not considered ready to see the applicant. Such a contact would further disturb the development of her personality taking place in cooperation with her foster parents. A contact with her father would, therefore, not be of advantage to her development and should be put off until she had become older and more harmonious. In conclusion it would be detrimental to Susan's rehabilitation to see her father immediately.         In an opinion to the Court of 21 August 1989 the County Administrative Board (länsstyrelsen) of Jönköping supported the Social Welfare Board's view that the applicant should not, for the time being, have access to Susan.         On 20 October 1989 the County Administrative Court rejected the appeal, having regard to the opinion of 10 July 1989 submitted by the Clinic.         As of 1 July 1990 the 1980 Act was replaced by a new Act with Special Provisions on the Care of Young Persons (lag 1990:52 med särskilda bestämmelser om vård av unga; hereinafter "the 1990 Act").         In the autumn of 1990 the Social Welfare Board of Värnamo pursuant to Section 14, subsection 3 of the 1990 Act reviewed the prohibition of access. It appears from the judgment of the County Administrative Court of 21 May 1991 that the authorities had available a memorandum in which it was stated as follows:         "In November 1989 [the applicant] and Susan met at the       request of her foster parents. [Representatives] of the       social welfare authorities and the Clinic were also       present. The purpose of the meeting was to enable Susan to       obtain, if possible, answers to possible questions       regarding her father, whom she had not met since she was       one year old. After the meeting the child and the Clinic       considered it good that Susan had been given a possibility       to meet her father and form her own conception of him. As       such a meeting is difficult both for Susan and her foster       parents as well as [the applicant] the child and the Clinic       considered that future meetings should be sparse, well       prepared and take place in the presence of social welfare       officials. A [further] meeting between [the applicant] and       Susan was arranged on 12 December 1990 in accordance with       an access plan (umgängesplan). Susan's foster parents, the       woman with whom [the applicant] was cohabiting, [a       representative of] the Clinic and social welfare officials       were also present. It is still too early to assess the       meeting primarily from Susan's point of view, as she may       need time to reflect on her feelings and thoughts. The plan       should give Susan a possibility to meet her father also on       a single occasion in 1991. This should be carefully       prepared in cooperation with the foster home, the Clinic       and the social welfare official in charge of the case."         By a decision of 7 December 1990 following the applicant's complaint to the Prime Minister of the way in which the matter had been handled by the Social Welfare Board the County Administrative Board criticised the lack of regular documentation of the Social Welfare Board's contacts with the applicant during 1990. Moreover, there was no documentation of the review of the prohibition of access issued under Section 14, subsection 3 of the 1990 Act. The County Administrative Board further emphasised that the foster parents' and the custodian's possible resistance against the applicant and Susan meeting each other could be no reason for prohibiting such contacts. Instead, it was up to the social authorities to guide and advise the foster parents and the custodian so as to ensure that the applicant and Susan could meet in a relaxed atmosphere.         On 18 December 1990 the Social Welfare Board decided to maintain the prohibition of access.         On 5 March 1991 the Social Welfare Board rejected the applicant's request for a revocation of the prohibition of access with regard to Helen and Maria. The Board noted that the decision of the Göta Court of Appeal of 23 March 1988 prohibited the applicant from having access to Helen and Maria. As regards Susan the Board decided to maintain the prohibition of access. It noted that according to the access plan Susan was to be given an opportunity to meet the applicant on one occasion in the late autumn of 1991.         The applicant appealed to the County Administrative Court requesting that he be allowed to see Susan once a month in accordance with the decision of the Göta Court of Appeal or at least once every three months. He submitted, inter alia, that no reasons had been given why he should not be allowed to see his children, in particular as he did not abuse drugs.         In an opinion to the County Administrative Court the Social Welfare Board objected to the appeal, referring to its previous investigations. Moreover, both the social welfare officials and the Clinic had considered that Susan, while staying with her foster parents, was in great need of security and continuity. The purpose of the access plan, that is to arrange a meeting once a year between Susan and the applicant, was to maintain their contact so that Susan at a more mature age could herself decide how much contact she wished and had the strength to maintain with the applicant.         On 21 May 1991 the County Administrative Court dismissed the appeal insofar as it concerned the Social Welfare Board's decision of 18 December 1990 and took no measures insofar as the request concerned Maria and Helen. Insofar as the appeal concerned the Social Welfare Board's decision of 5 March 1991 the Court rejected it, noting the Social Welfare Board's responsibility under Section 14 of the 1990 Act. It referred to the Clinic's opinion of 10 July 1989 according to which, inter alia, Susan was emotionally inhibited and had a negative image of herself; her disturbance was of a moderate character; and during interviews she had strongly indicated her affinity with her foster parents and had reacted negatively to meeting her father.         The Court further found that although the two subsequent meetings between the applicant and Susan had been successful they had put a strain on Susan. Having regard to the circumstances as a whole the Court considered it necessary, in order to carry out the care of Susan, that the applicant's access to her be restricted. However, prior to its next review of the prohibition of access the Social Welfare Board should contact the Clinic in order to investigate whether Susan's situation (including her mental state etc.) was such that a more frequent contact with the applicant could take place.         The applicant appealed to the Administrative Court of Appeal (kammarrätten) of Jönköping, submitting, inter alia, that Susan's neurotic disturbances could not have been caused by him, as she had been only one year old when she and U.-B.H. had moved away from him.         In the Social Welfare Board's memorandum of 5 June 1991 forming the basis for a further review of the prohibition of access it was considered that the contact should be very restricted having regard to the strain it was putting on Susan and her foster parents.         In a memorandum of 16 August 1991 forming the basis for the Social Welfare Board's opinion to the Administrative Court of Appeal inter alia the following was stated:         "[The applicant] is in no way excluded as a father or a       person. For all we know there are no reasons for preventing       him from seeing Susan at a neutral place. The primary       question is how much strength Susan has. When [considering]       the access plan the Social Welfare Board's starting-point       is to take Susan's present mental state into account and on       this basis decide on her contact with both her mother and       her father. [The applicant's] wish to see his daughter can       at present not be fully complied with, as this would be       contrary to Susan's [own] will and as she is showing signs       of neurotic disturbances and is in need of calm and       security. The present plan aims at maintaining the contact       between [the applicant and Susan]."         In an account to the Social Welfare Board of 4 December 1991 it was found, inter alia, that Susan's situation had remained stable. The social welfare officer in charge of the case, M.G., further submitted, inter alia, that on 28 November 1991 the applicant and Susan had met for an hour. M.G., the applicant, the woman with whom he was cohabiting and Susan's foster parents had also been present. The meeting had been good, although stiff. Susan had been very uninterested in the meeting. According to M.G. the meeting did not cause Susan any serious harm. M.G. noted that Susan knew what it was all about and felt secure knowing that she would not be removed from her foster parents.         On 4 December 1991 the Social Welfare Board decided to maintain the access plan with one meeting per year.         On 13 January 1992 the Administrative Court of Appeal quashed the County Administrative Court's decision and granted the applicant a right to see Susan on three occasions during 1992. The Court had regard to an opinion of 5 June 1991 by H.C., a psychologist at the Clinic according to whom the conditions for contact had not changed. In a further opinion of 8 November 1991 H.C. had stated that Susan's mental condition was stable and that she could see the applicant once a year. The Administrative Court of Appeal stated inter alia as follows:         "...Notwithstanding the fact that a young person is taken       into care under the 1990 Act [in this case the 1980 Act]       the contact [between him or her and the parent who does not       have the custody] is to be decided by a general lower court       (allmän domstol). Accordingly, the Social Welfare Board       shall proceed from the contents of the decision by the Göta       Court of Appeal. [It] may, however, ... decide on how       [this] contact should be executed. A restriction of the       contact can only be made for weighty reasons and [Section       14] should be applied restrictively ...         The reasons invoked by the Board are Susan's mental state       and the strains which the [meetings between Susan and the       applicant] have put on her and the foster parents.         As regards first the foster parents the Board has not       invoked anything that could affect the question of contact.         As regards Susan's mental state it is now considered       stable. She is found to feel secure knowing that she will       not be removed from the foster home.         No objections have been made against [the applicant's]       person. According to the Board the lengthy interruption of       the contact between him and [Susan] is an obstacle to a       more frequent one taking place. From the outside the       meetings ... have been successful. Having regard to the       fact that the first meetings took place after an       interruption of nearly ten years, and to the lengthy period       between the meetings [in 1989, 1990 and 1991] Susan's lack       of interest cannot be considered remarkable. According to       the evaluation of the meetings in 1989 and 1990 these put       a strain on Susan. No evaluation of the meeting in 1991 has       yet been made. However, according to [M.G.] that meeting       appeared not to have been detrimental to Susan.         ... [I]n view of, in particular, the interruption of the       contact ... for almost ten years there are weighty reasons       for a certain restriction of the access. However, they are       not so weighty as to restrict it to one visit per year.       [The applicant] shall, therefore, have a right to see       [Susan] on three occasions in 1992. The Administrative       Court of Appeal requires that subsequent contact be more       frequent. The meeting-place and the arrangements should       initially remain unchanged."         On 24 February 1992 the Supreme Administrative Court (regeringsrätten) refused the applicant leave to appeal.           On 4 March 1992 the Social Welfare Board of Värnamo again decided to maintain the prohibition of access. It further fixed the meetings between the applicant and Susan in 1992 in accordance with an agreement signed by the applicant on 20 February 1992.   Relevant domestic law         Under Section 1 of the 1980 Act care was to be provided for persons under eighteen years of age if it could be presumed that the necessary care could be given to the young person with the consent of the person or persons having custody of him or her and, in the case of a young person aged fifteen or more, with the consent of the young person. Care was to be provided for a young person if, for instance, lack of care of him or her or any other condition in the home entailed a danger to his health or development (subsection 2, para. 1).         Once a decision on public care had been taken, the Social Welfare Board was to execute the decision, take care of the practical details regarding where to place the child and decide what education and other treatment he or she should be given etc. Under Section 11 the Board was to decide how care was to be arranged for the young person concerned and where he or she was to reside during the period of care. It was further to keep the young person under surveillance and make such decisions concerning his or her personal circumstances as were necessary for the care.         Section 16 of the 1980 Act provided that, if it was necessary in order to achieve the purposes of care measures taken under this Act, the Board could decide how the right of access to the young person was to be exercised by a parent or other person who had custody of him, or decide that the young person's place of residence should not be disclosed to the parent or custodian.         The preparatory work to this provision (Bill 1979/80:1, Part A, p. 601), contains the following statement:         "The Social Welfare Board should, when carrying out the       care, as far as possible cooperate with the parents and       assist in maintaining contacts between the parents and the       child. ... A care decision should not give rise to other       restrictions of the parents' right of access to the child       than those which are necessary in order to carry out the       care. The circumstances might, however, be such that the       parents during the care period should not meet the child.       There might for example be a risk that the parents       interfere with the care without authorisation. The parents'       personal circumstances might also, for instance by reason       of severe abuse [of alcohol or drugs] or mental illness, be       such that they should not meet the child at all ... The       proposed provisions concerning restrictions of the right of       access should be applied restrictively. [The Board] should       only in exceptional cases refuse to disclose the child's       place of residence to the parents."         The Standing Social Committee of the Parliament stated in its report (Statens offentliga utredningar - "SOU" 1979/80:44, p. 116) that the Social Welfare Board was in principle responsible for all decisions concerning visits to the child. This was inherent in its general powers to decide on the child's conditions during care. Parents enjoyed a special right of access to the child and it was important that they maintain regular contact. The circumstances could, however, be such that the parents during a certain time or until further notice should not meet the child.         According to a guide on the 1980 Act (1981:2, p. 112) issued by the National Board of Health and Social Welfare (socialstyrelsen), the local Social Welfare Board was empowered under Section 16 to restrict and terminate completely the parent's access to the child.         Decisions of the County Administrative Court that a child be taken into care under the 1980 Act could be the subject of an appeal to the Administrative Court of Appeal and, with leave, to the Supreme Administrative Court.         An appeal lay to the County Administrative Court (and then to the Administrative Court of Appeal and, with leave, to the Supreme Administrative Court) against, inter alia, decisions taken by a Social Welfare Board regulating the right of access under Section 16 of the 1980 Act.         As of 1 July 1990 the 1980 Act was replaced by the 1990 Act which entails certain amendments and additions to the 1980 Act. The provisions of the 1990 Act corresponding to those of the 1980 Act mentioned above are essentially the same. However, Section 14, which replaces Section 16 of the 1980 Act, is worded as follows:         "The Social Welfare Board is responsible for accommodating       as far as possible the young person's needs of contact with       his parents or any person who has custody of him.         If it is necessary in order to achieve the purposes of care       measures taken under this Act, the Social Welfare Board may         1.    decide how the right of access to the young person            shall be exercised by a parent or other person who has            custody of him, ...         The Social Welfare Board shall reconsider at least once       every three months whether such a decision as referred to       in the second paragraph remains necessary."         It follows from Chapter 6, Section 15, para. 2 and Section 17 of the Parental Code (föräldrabalken), that a court order refusing a parent access to his child may be reconsidered at that parent's request following an action brought against the child's custodian.       COMPLAINT         The applicant complains that his right of access to his children is being restricted for no justifying reason. He further complains of the modalities of the meetings with Susan. He invokes Article 8 of the Convention and Article 5 of Protocol No. 7.     THE LAW         The applicant complains of the interference with his right of access to his children, and of the modalities of the meetings with Susan. He invokes Article 8 (Art. 8) of the Convention and Article 5 of Protocol No. 7 (P7-5).         The Commission has examined the application under Article 8 (Art. 8) of the Convention which states:         "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)    As regards firstly the alleged restriction of access to Susan and the modalities of the meetings arranged by the social authorities between the applicant and Susan it is common ground that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see, as the most recent authority, Eur. Court H.R., Rieme judgment of 22 April 1992, para. 54, to be published in Series A no. 226-B). The right to respect for family life includes a right to the taking of measures with a view to the parent or parents being reunited with the child (ibid., para. 69).         The implementation of the care order and the prohibition or restriction of access in the present case interfere with the applicant's right to respect for his family life. Such an interference constitutes a violation of Article 8 (Art. 8) of the Convention unless it is "in accordance with the law", has one or more aims that are legitimate under article 8 para. 2 (Art. 8-2) and is "necessary in a democratic society" (cf. ibid., paras. 55-56).         It has not been alleged that the interference was not "in accordance with the law". The Commission, for its part, finds no indication to the contrary.         The relevant domestic law was aimed at protecting the health and the rights and freedoms of Susan. The Commission finds no indication that the provisions were applied for any other purpose. The interference thus had aims that were legitimate under Article 8 para. 2 (Art. 8-2) (cf. ibid., para. 66).         The notion of necessity implies that the interference with a right under Article 8 para. 1 (Art. 8-1) must correspond to a "pressing social need" and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is "necessary in a democratic society" a margin of appreciation is to be left to the Contracting State.         The Convention organs' review, however, is not limited to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith. Moreover, the Convention organs must look at the impugned decisions in the light of the case as a whole and determine whether the reasons adduced to justify the interference are "relevant and sufficient" (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68). When determining these questions the Convention organs 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 (e.g. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28-29, paras. 63-65).         The Commission notes that the restriction of the applicant's access to Susan is based on careful and successive examination by the Social Welfare Board, the County Administrative Court and the Administrative Court of Appeal. It takes Susan's mental state into account and the fact that she had not met the applicant since 1981, when she was one year old.         Having regard to the strain which the meetings with the applicant put on Susan and, in particular, her mental health it was considered to be in her interests that her contacts with the applicant develop gradually. These reasons were relevant and sufficient for the purposes of Article 8 (Art. 8) of the Convention and also justified the modalities of the meetings arranged between the applicant and Susan. In the Commission's view the applicant was, for the purposes of Article 8 (Art. 8), sufficiently involved in this decision-making process.         The Commission further notes that under Section 14, subsection 3 of the 1990 Act the prohibition of access had to be reviewed by the Social Welfare Board at regular intervals not exceeding three months. Moreover, when extending the applicant's right of access to three times during 1992, the Administrative Court of Appeal required that the access be further extended in subsequent years.         The Commission has not overlooked the applicant's situation. The absence of one's child may cause considerable suffering to the non- custodial parent. However, where, as in the present case, there is a serious conflict between the interests of the child and those of one of its parents which can only be resolved to the disadvantage of one of them, the interest of the child must prevail (No. 12495/86, Dec. 7.12.87, D.R. 54 p. 187 [194]).         Taking all the circumstances of the case into account and having regard to the State's margin of appreciation the Commission is satisfied that the Swedish authorities had and have at present relevant and sufficient reasons for their measures restricting the applicant's access to Susan.         The Commission concludes that the interference with the applicant's right to respect for his family life, being proportionate to the legitimate aim pursued, could and can at present be considered justified under Article 8 para. 2 (Art. 8-2) as being necessary in a democratic society for the protection of the rights and freedoms of Susan.         It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (b)    As regards secondly the alleged refusal of access to Maria and Helen the applicant has not shown that he requested leave to appeal to the Supreme Court against the decision of the Göta Court of Appeal of 23 March 1988 rejecting his request for access to those children. The applicant has, therefore, not exhausted the remedies available under Swedish law, as required in Article 26 (Art. 26) of the Convention. Moreover, an examination of the case does not disclose the existence of any special circumstance which might have absolved the applicant, according to the general rules of international law, from exhausting the remedies at his disposal.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   (c)    The applicant has also invoked Article 5 of Protocol No. 7 (P7-5). However, the Commission finds no issue under this provision.         If follows that the application in this respect is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber           (M. de SALVIA)                          (J.A. FROWEIN)