CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 22378/93                       by Anna SALOMONSSON-DOBOROWICZ                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 11 January 1995, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 19 December 1992 by Anna SALOMONSSON-DOBOROWICZ against Sweden and registered on 28 July 1993 under file No. 22378/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Polish citizen born in 1943, resides at Södertälje, Sweden. She is unemployed.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant came to Sweden from Poland in the early 1980's. She married a Swedish man and they had two sons, A, born in 1982 and P, born in 1983. In 1987 the couple divorced and the applicant was granted sole custody of A and P. In 1990 she married a Polish man and the same year they had a son, W. The applicant's present husband lives in Poland.   The applicant also has adult children from an earlier marriage.         On 22 January 1992 the Chairman of the Municipal District Council (kommundelsnämnden - "the Council") of Geneta, Södertälje decided, pursuant to Section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52 - "the 1990 Act"), immediately to take the three children into public care on a provisional basis. The reason for the decision was that, owing to a deterioration of the applicant's mental health, there were such risks with regard to the children's health and development that a court decision could not be awaited. According to the Council, it had received reports of maltreatment of the children from the father of A and P and from the personnel of the children's day-care centre. Moreover, the applicant had been offered supporting measures by the Council but had allegedly been reluctant to cooperate with the authorities.         The Council's decision was the following day brought before the County Administrative Court (Länsrätten) of the County of Stockholm, which appointed counsel for the applicant and the children. The applicant did not consent to the decision. She claimed that it was based on an insufficient investigation and denied that the children were not properly cared for or that her mental health had been or was deteriorating. Moreover, she was willing to cooperate with the authorities in order to straighten out all misunderstandings that might have occurred due to her insufficient command of Swedish. Counsel for the children, however, approved of the taking into care. On 30 January 1992 the Court confirmed the Council's decision.         Between 22 January and 20 February 1992, the three children and, on a voluntary basis, the applicant were placed in a children's home in Geneta for an investigation of their situation. In its report, the children's home stated, inter alia, that the applicant took good care of her children and that they were close to each other, but that she was unbalanced and under severe mental stress and that her mood changed significantly when she was confronted with difficulties, in which situations she became uncommunicative and very upset. On one such occasion she left the home with W. While the children's home had not noticed any problems with W, the report stated that A and P were both suffering from suppressed sadness and anger. The children's home concluded that the family was in need of various supporting measures, but did not take a stand on whether the applicant and her children should be separated.   In an opinion of 15 February 1992, L.K., a psychologist who had met A and P three times at the children's home, stated, inter alia, that A and P did not receive adequate support for their emotional problems from the applicant or other people close to them. The psychologist did not find that P had any serious emotional problems, but as concerns A she feared permanent problems. She made the following conclusions:         (translation)         "1. If the family situation is such that [the applicant]       understands the children's needs and approves of supporting       measures, the children's needs can be satisfied by       preventive measures such as a contact family or a contact       person.         2. If [the applicant], on the contrary, does not understand       the children's needs and denies the need for support, there       is a risk of retardation in the children's development.         3. If [the applicant] has such mental problems that she is       not aware of her illness, the above-mentioned supportive       measures are not sufficient to satisfy the children's       needs."         After a meeting at the Council on 17 February 1992, at which the applicant, her counsel and the children's counsel were present and heard, the Council applied to the County Administrative Court for a care order concerning the three children.         After the applicant had again left the children's home on 20 February 1992, the Council found that the home could not guarantee the children's security and they were therefore moved the following day to an investigation home at Torshälla. A and P were soon thereafter placed in the foster home of an older half-brother, the applicant's adult son. W remained at the investigation home, where he was soon joined by the applicant.         On 5 and 17 March 1992, the County Administrative Court held hearings in the case, at which the applicant was present and assisted by her counsel. The children were represented by counsel. During the proceedings, the Court heard representatives of the Council, counsel for the children, the applicant and, at her request, her adult son. The applicant stated, inter alia, that she was aware of the need of supportive measures and that she would accept to see a psychologist although she did not find it necessary. In addition to the oral testimony, the Court had at its disposal a report from the Council and the psychologist's statement.         By judgment of 6 April 1992, the Court decided that A and P should be taken into public care pursuant to Section 2 of the 1990 Act, which provides that such orders may be made in cases where, due to physical abuse, exploitation, inadequate care or some other circumstances in the home, there is a clear risk of the young person's health and development being impaired. The Court, however, rejected the request for public care of W. The Court stated, inter alia, that the applicant's care of her children was inadequate and that there was a clear risk that A's and P's health and development would be impaired. The Court further found that the applicant's approval of voluntary supportive measures did not sufficiently guarantee that A and P would receive the necessary care. As concerns W, the Court, however, found that there was at that moment no clear risk of impairment of his health and development. The applicant appealed against the judgment.         In a report dated 26 April 1992, the investigation home at Torshälla gave an account of its observations during the period 21 February - 7 April 1992, during which the applicant and W had stayed at the home. The report stated, inter alia, that the problems that had emerged were mainly due to the applicant's cultural background, communication problems and her difficulties, in a vulnerable situation, to accept adequate help than her inability to take good care of her children.         On 14 July 1992 the Administrative Court of Appeal (Kammarrätten) of Stockholm held a hearing, at which the applicant, her ex-husband, the children's counsel and representatives of the Council were heard. The applicant was, at her own request, not represented by counsel but was assisted by an interpreter.         By judgment of 20 July 1992, the Court rejected the appeal on the following grounds:         (translation)         "According to [the Council's] written report, inter alia       the following has occurred in [the applicant's] home. [A       and P] have been assaulted. They have been beaten by [the       applicant] using a hanger and a belt. She has threatened       both her ex-husband and [A] with a knife. She has on       several occasions spoken in a violent manner to the boys,       her ex-husband and several other persons. She has, among       other things, threatened to kill herself and the boys. In       October/November 1989 [the applicant] went to Poland and       left the boys with a neighbour saying that she would come       for them in four days. Still after more than fifteen days       she had not informed the neighbour that she would not       return until later. [The applicant] has denied the       truthfulness of the report. The information in the report       is based on continuously recorded notes and it has been       furnished by several persons independent of each other. The       statements are mutually concordant. At the hearing of [the       Court], the children's father, [S.S.], has confirmed that       the report's summary of what he has said is correct. He has       clearly and tangibly described many years of bad       conditions. [The Court] considers, in these circumstances,       that [the applicant's] flat denial is not credible. [The       Court] will therefore base its opinion on the Council's       report.         [The Court] finds this to show that [the applicant's]       mental instability is such that there is a clear risk that       A's and P's development will be impaired. The requirements       for care according to [the 1990 Act] are met, as [the       applicant] has not consented to the necessary care."   The       applicant appealed to the Supreme Administrative Court       (Regeringsrätten) which, on 12 November 1992, refused leave       to appeal.   COMPLAINTS   1.     The applicant complains, under Article 6 of the Convention, that the Council and the courts have co-operated and that the courts have decided without sufficient reason or evidence.   2.     The applicant contends that the taking into care of her children has violated her rights under Article 8 of the Convention.   THE LAW   1.     The applicant alleges that the Council and the courts have co-operated and that the courts have decided without sufficient reason or evidence. She invokes Article 6 (Art. 6) of the Convention, which, in its relevant parts, reads as follows:         "1. In the determination of his civil rights ..., everyone       is entitled to a fair and public hearing ... by an       independent and impartial tribunal ..."         The applicant submits that her children were taken into care without sufficient reason or evidence, as the courts' decisions were based on the Council's faulty investigation.         As far as the applicant alleges that the courts have decided without sufficient reason or evidence, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with a complaint concerning errors of law or fact allegedly committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention or its Protocols. The Commission refers, on this point, to its established case-law (cf., e.g., No. 10153/82, Dec. 13.10.86, D.R. 49 p. 67, and No. 12013/86, Dec. 10.3.89, D.R. 59 p. 100).         It is true that in this case the applicant also alleges that the Council and the courts have co-operated. This complaint calls into question the independence and impartiality of the courts.         However, the Commission notes that the applicant's appeals were examined by the County Administrative Court, the Administrative Court of Appeal and, in deciding whether to grant leave to appeal, the Supreme Administrative Court. Both the County Administrative Court and the Administrative Court of Appeal held oral hearings. The applicant was present at those hearings and had the opportunity of presenting any arguments or documents which, in her opinion, were of importance to the outcome of the case. Having regard to these facts and as there is nothing in the file to suggest that the courts were not independent or impartial, the Commission finds that the complaint does not disclose any appearance of a violation of the applicant's rights under Article 6 (Art. 6) of the Convention.         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 applicant further complains that the taking into care of her children constitutes an unjustified interference with her right to respect for her family life. She invokes 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."         The Commission finds that the taking into care of the applicant's children interfered with her right to respect for her family life as ensured 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 and it must be "necessary in a democratic society" for these aims.         As regards the first condition, the Commission finds that the decision by the courts to take the applicant's children into public care was in conformity with Swedish law, namely Section 2 of the 1990 Act.         The Commission further finds that the interference had a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests of the children, which in this case fall under the expressions "for the protection of health or morals" and "for the protection of the rights and freedoms of others" (cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 31, paras. 64-65).         It thus remains to be determined whether the interference was "necessary in a democratic society" in the interests of the children.         According to the established case-law of the Commission and the European Court of Human Rights, the notion of necessity implies that the interference corresponds 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", the Commission furthermore has to take into account that a margin of appreciation is left to the Contracting States. That does not mean, however, that the Commission's review is limited to ascertaining whether the respondent State has exercised its discretion reasonably, carefully and in good faith. Furthermore, it cannot confine itself to considering the relevant decisions in isolation but must look at them in the light of the case as a whole. It 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).    Furthermore, certain procedural requirements are implicit in Article 8 (Art. 8). As regards decisions in child-care matters, the parents must have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (cf. 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 that both the County Administrative Court and the Administrative Court of Appeal held hearings and that the Council, before its decision to apply for the applicant's children to be taken into care, held a meeting. On all these occasions the applicant was present and heard. At the Council meeting and at the hearing of the County Administrative Court she was assisted by legal counsel. At the hearing of the Administrative Court of Appeal she was, at her own request, not assisted by counsel, but was assisted by an interpreter.         The Commission, therefore, finds that the applicant was sufficiently involved in the decision-making process.         As regards the taking into care of A and P, the County Administrative Court found that the applicant's care of her children was inadequate and that there was a clear risk that their health and development would be impaired. The Administrative Court of Appeal found that the applicant's mental instability was such that there was a clear risk for impairment of A's and P's development.         These conditions are clearly relevant to a decision to take children into care. However, as such a decision is a serious interference with the rights protected under Article 8 para. 1 (Art. 8-1) of the Convention, it must be supported by sufficiently sound and weighty considerations in the interests of the children. In order to determine whether in the present case the reasons can be considered "sufficient" for the purpose of Article 8 (Art. 8), the Commission must further examine the evidence that was available to the courts (cf. No. 12651/87, Dec. 9.5.89, D.R. 61 p. 176).         In this respect the Commission recalls that the courts had at their disposal a report by the Council and statements by a psychologist and by two children's homes. The Council's report was based on continuous and corresponding information given by several independent persons. However, the courts' judgments were not founded solely on written documentation, but also on statements made at the hearings. In addition to the applicant and her counsel, the children's counsel and the representatives of the Council, the County Administrative Court heard the applicant's adult son and the Administrative Court of Appeal heard the applicant's ex-husband. Thus, the courts had the benefit of their own impressions of the persons involved.         The Commission further notes that the psychologist who had met A and P stated that they did not receive adequate support for their emotional problems and that she feared that A would get permanent problems. Moreover, after an evaluation of the available evidence, the Administrative Court of Appeal decided to base its opinion on the Council's report, which inter alia stated that the applicant had assaulted and threatened to kill A and P.         Although the opinions expressed in the different statements varied to some extent, the Commission finds that the decision to take A and P into care was supported by "sufficient reasons" and that, having regard to their margin of appreciation, the Swedish authorities were entitled to think that it was necessary to take A and P into care. Accordingly the Commission concludes that the decision can reasonably be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.         It follows that also this part of the application 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 Second Chamber   Acting President of the Second Chamber             (K. ROGGE)                            (G.H. THUNE)