CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 septembre 2007

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Zupančič , President ,   Mr   C. Bîrsan ,   Mrs   E. Fura-Sandström ,   Mrs   A. Gyulumyan ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson ,   Mrs   I. Ziemele, judges , and Mr S. Quesada , Section Registrar , Having regard to the above application lodged on 21 October 2004, Having regard to the observations submitted by the respondent Government, Having deliberated, decides as follows: THE FACTS The applicants, Mr Magnus Eglert and Mrs Jessica Eglert, are Swedish nationals who were born in 1966 and 1971 respectively and live in Hässleholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are a married couple. The second applicant has a daughter, born in 1993. According to a report by the social authorities, made after the daughter’s birth, the second applicant was not capable of forming an attachment to her daughter. The second applicant also has two sons, born in 1997 and 1998 respectively. All three children live with their respective fathers. The youngest son moved to his father after an investigation by the social authorities in February/March 2003 had led to the conclusion that his needs were not being met in the home of the applicants. Previously, the second applicant had received various forms of support from the authorities to enable her to take care of that son. The applicants also have three sons together, born in 2001, 2003 and 2006, respectively. The eldest and the youngest of the common sons live with the applicants. On 14 September 2003 the applicants’ second son, Gabriel, was born, three months prematurely. His twin brother was dead at birth. Gabriel was thereafter treated at the hospital for serious complications. He had two cerebral haemorrhages, a serious infection and a deformation of the lungs which made it necessary for him to lie in a respirator for the first six weeks. Thereafter he was given oxygen until early January 2004. On 12 January 2004 he was released from the hospital and moved home to his parents. On 30 October 2003 personnel at the hospital in Lund, where Gabriel had been treated until that date, reported to the Social Council ( socialnämnden ) in Hässleholm that there were doubts as to the applicants’ ability to take care of him. Similar observations were made at the hospital in Kristianstad, where Gabriel was treated after 30 October. The Council started an investigation into the matter. Having consulted hospital personnel, the applicants and the contact person who had been appointed to assist the applicants, the Council concluded that there had been several serious incidents which indicated that the applicants were unable to handle unforeseen situations. While there had been no medical problems, Gabriel had been given too much food and, as a consequence, he had had to undergo a medical examination. Moreover, the applicants were, in general, unable to understand and satisfy his needs regarding hunger, sleep and peace. The hospital personnel had had to give them a lot of support and inform them repeatedly how to take care of Gabriel. The second applicant had made numerous telephone calls to the hospital, expressing anxiety about his eating and defecating habits. On 26 January 2004 she had called the hospital several times as Gabriel had been crying for an hour during the night. She had stated that the situation was too much for her and her husband and that they wished to return him to the hospital. She was told that this was possible, but that one of the parents had to stay with him, which they were unwilling to accept. The hospital personnel were also concerned about his older brother’s situation. Having regard also to the results of the investigation in February/March 2003, the Council considered that the second applicant, who was on early retirement due to psychological problems, lacked the ability to establish a safe and secure connection to her children and to stimulate them. While the first applicant, an unemployed assistant nurse, had a better contact with the children, he was not able to take care of a child as demanding as Gabriel without the support of his wife. On 29 January 2004, having regard to the results of the investigation, the Council 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; hereinafter “the 1990 Act”), to take Gabriel into public care immediately on a provisional basis. He was placed with the contact person and her husband, acting as a so-called family home. The applicants had not given their consent to this measure. The decision was confirmed by the County Administrative Court ( länsrätten ) in Skåne on 11 February 2004. On 19 February 2004 the Social Council applied to the County Administrative Court for a care order concerning Gabriel under section 1   §   2 and section 2 of the 1990 Act. In the application, the Council emphasised that Gabriel was a very demanding child due to the medical complications that had occurred in connection with his birth, that he had a great need of rest and calm and that he depended on those in charge of him to observe and interpret his signals properly. The Council maintained that the applicants were not able to meet Gabriel’s needs in an adequate way. The applicants stressed, for their part, that they had not had enough time to get over the difficult circumstances surrounding Gabriel’s traumatic birth, including the death of his twin brother, and that they had not been given the opportunity to prove that they were able to take care of Gabriel. Following an oral hearing held on 4 March 2004, the County Administrative Court, by a judgment of 9 March 2004, granted the Social Council’s application and issued a care order. The Court agreed with the conclusions drawn by the Council and found that there was a clear risk of impairment of the health and development of Gabriel due to the applicants’ inability to satisfy his needs. According to the court, they – in particular the second applicant – were incapable of understanding and following instructions about Gabriel’s feeding and of handling more demanding situations. It considered, with some hesitation, that he could not be cared for in the applicant’s home with various support measures, as the applicants had not been able to take care of him despite having received help six hours per day from the social authorities. As the applicants did not consent to the placement in the family home, compulsory care had to be given under the 1990 Act. On 8 June 2004 the Administrative Court of Appeal ( kammarrätten ) in Gothenburg, which also held a hearing in the case, upheld the County Administrative Court’s judgment. With reference to the Social Council’s report, the appellate court stressed that Gabriel needed more care and nursing than children of his age normally did and that already at the hospital there had been doubts as to the applicants’ ability to take care of him. Especially the second applicant had difficulties in understanding his needs and letting them prevail over her own wishes. According to the court, the investigation also showed that these difficulties had persisted when Gabriel had left the hospital and moved home to his parents. Among other things, there had been deficiencies in his nourishment and feeding and he had not had enough peace and rest. The court also considered that the great number of telephone calls to the hospital showed that the applicants had not been able to handle the situation. The court found that Gabriel’s father had a better parental ability than his mother. Nevertheless, the investigation did not support the conclusion that the father’s parental ability – even with the additional help from the social authorities – could compensate for the mother’s deficiencies in this respect. Further, the court observed that, at the hearing, the mother had expressed a very negative attitude towards various support measures. It concluded that it was clear that Gabriel had to be taken care of by other persons than the applicants in accordance with the Council’s care plan, namely in the family home. On 25 August 2004 the Supreme Administrative Court ( Regeringsrätten ) refused the applicants leave to appeal. Subsequently, the Social Council regularly – approximately every six months – reconsidered Gabriel’s need of continuous care. On 3 August 2004 the Council decided that he should remain in the family home. It observed that he had developed in a positive way in the family home. Noting that Gabriel visited his parents once or twice a week, the Council considered that they were still unable to understand his situation and see to his needs. On 8 February 2005 the Social Council again decided that the compulsory care should continue. The applicants appealed to the County Administrative Court which, on 11 April 2005, following an oral hearing, upheld the Council’s decision. The court concluded that the applicants lacked the capacity to give Gabriel the care that his great special needs required. The applicants did not appeal against the judgment. Further decisions that Gabriel should remain in the family home were taken by the Social Council on 28 June and 13 December 2005 and on 27     June 2006. The decisions were based on reports which, inter alia , concluded that Gabriel had a slow and delayed motor development and that his psychosocial development was also delayed. He needed a lot of help with most things, due to his age and his disabilities and required extensive stimulation and training in order to develop favourably. He had had regular and increased contact with his parents. While initially he had been accompanied by the foster mother on visits to the applicants’ home, he had later begun to spend time with them alone and had even stayed overnight on some occasions. B.     Relevant domestic law According to section 1 § 2 and section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the young person’s custodian. The decision whether to place a young person in public care is made by the County Administrative Court following an application from the Social Council. Under section 6 of the Act, the Social Council may order the immediate taking into care of a young person (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks facing the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld pending the court’s judgment regarding the application for public care. COMPLAINT The applicants complained under Article 8 of the Convention that the taking into public care of their son had violated their right to respect for their family life. Noting that Gabriel had been taken into public care only 17 days after he had left the hospital, they claimed that they had not been given an opportunity to show their abilities as parents. They also pointed out that they had been in a psychologically very stressful situation after the traumatic birth, due to the death of Gabriel’s twin brother and their concern that Gabriel would have permanent injuries. THE LAW The applicants claimed that the taking into care of their son, Gabriel, had violated their rights under Article 8 of the Convention, the relevant parts of which read as follows: “1.     Everyone has the right to respect for his ... family life .... 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 respondent Government admitted that the taking into public care of Gabriel constituted an interference with the applicants’ right to respect for their family life as ensured by Article 8 § 1, but maintained that the interference had been justified under the terms of Article 8 § 2. In claiming that the interference had been “necessary in a democratic society”, they submitted, inter alia , the following. The decisions of the national authorities on compulsory care had been based on Gabriel’s special physical needs as well as his need of stimulation and training due to the medical complications that he had suffered in connection with his birth. Several serious incidents had showed that the applicants had been unable to meet those needs. Furthermore, the compulsory care had been preceded by the provision of various supportive measures and by several careful investigations. The Government maintained that the taking into care had been based on grounds which were both relevant and sufficient for the purposes of Article 8 § 2. Having regard to the margin of appreciation, they were of the opinion that the interference in the case had been proportionate to the aim pursued, namely the protection of Gabriel’s health and development. The applicants did not submit any observations in reply. As is well established in the Court’s case-law, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention. The impugned measures, as was not disputed, evidently amounted to interferences with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under Article 8 § 2 and can be regarded as “necessary in a democratic society” (see, inter alia , K. and T. v. Finland [GC], judgment of 12 July 2001, Reports 2001-VII, p. 227, §   151). The Court is satisfied that the impugned measure had a basis in national law and aimed at protecting the health and development of Gabriel, which falls under the protection of “health or morals” and “the rights and freedoms of others”. In determining whether the measure was “necessary in a democratic society”, the Court will consider whether the reasons adduced to justify it were relevant and sufficient for the purposes of Article 8 § 2. In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. The Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (see K. and T. v. Finland , judgment cited above, pp. 227-228, §§154-155, with further references). Turning to the present case, the Court observes that Gabriel was taken into public care and placed in a family home through the decision of the Social Council of 29 January 2004, ultimately confirmed by the Supreme Administrative Court’s decision of 25 August 2004 to refuse leave to appeal. The applicants’ sole complaint in the present case concerns the taking into care; they did not complain about the actual care that Gabriel received thereafter or about any lack of contact with him during his stay at the family home. It is therefore the Court’s task to determine whether, at the time when the domestic decisions to take Gabriel into care were issued, the impugned measure was supported by relevant and sufficient reasons. Gabriel was born three months prematurely and serious medical complications set in immediately, including two cerebral haemorrhages. The investigations carried out afterwards have shown that his motor and psychosocial development has been slow and delayed. It is thus evident that his needs in terms of care, stimulation and training were – and, apparently, still are – much greater than the normal needs of a child of his age. In regard to the applicants’ abilities to meet the special needs of Gabriel, the Court has regard to the material in the case file, according to which especially the second applicant, his mother, showed clear deficiencies in this respect. Both during the period when Gabriel was undergoing treatment at the hospital and later, after he had moved to his parents, there were several incidents which, in the Court’s opinion, showed that the second applicant was unable to give the care and support required on account of Gabriel’s fragile state. While this, to some extent, may be explained by the traumatic events connected to his birth, it must be borne in mind, in this context, that the second applicant had psychological problems and was on early retirement for this reason. Moreover, her three elder children were living with their respective fathers and an investigation by the social authorities in early 2003 had led to the conclusion that the needs of the youngest of those three were not met in the applicant’s home. It transpires from the documents in the case that the first applicant had a better contact with Gabriel and his older brother. Nevertheless, he was considered to lack the ability to take care of a child as demanding as Gabriel, especially as he would not get much support from his wife. The Court further takes into account that the applicants had difficulties in taking care of Gabriel despite the fact that they were receiving extensive help from the social authorities and that the second applicant, at the hearing of the Administrative Court of Appeal, had expressed a very negative attitude towards various support measures. Having regard to the above and keeping in mind that the domestic authorities’ primary task was to safeguard the interests of Gabriel, the Court finds that, at the time when the care order was issued, the authorities could consider, within their margin of appreciation, that compulsory placement in public care was called for rather than continuation of open-care measures on a voluntary basis. While the applicants have not specifically complained about the way in which the public care was carried out, the Court is nevertheless of the opinion that the implementation of the care order could not be said to have been harsh or exceptional. It notes, in this respect, that the applicants have had extensive and increasing contact with their son. Accordingly, in the circumstances of the case, the Court is satisfied that the taking of Gabriel into public care was based on reasons which were not only relevant but also sufficient for the purposes of Article 8 § 2. It follows that the application is manifestly ill-founded pursuant to Article 35 § 3 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Boštjan M. Zupančič   Registrar   President