European Court of Human Rights



In the Eriksson case*,

 

_______________

*  Note by the Registrar.  The case is numbered 11/1988/144/209.

   The second figure indicates the year in which the case was

   referred to the Court and the first figure its place on the list

   of cases referred in that year; the last two figures indicate,

   respectively, the case's order on the list of cases and of

   originating applications (to the Commission) referred to the

   Court since its creation.

_______________

 

The European Court of Human Rights, sitting in plenary session

pursuant to Rule 50 of the Rules of Court and composed of the

following judges:

 

        Mr R. Ryssdal, President,

        Mr J. Cremona,

        Mr Thór Vilhjálmsson,

        Mrs D. Bindschedler-Robert,

        Mr F. Gölcüklü,

        Mr F. Matscher,

        Mr J. Pinheiro Farinha,

        Mr L.-E. Pettiti,

        Mr B. Walsh,

        Sir Vincent Evans,

        Mr R. Macdonald,

        Mr C. Russo,

        Mr R. Bernhardt,

        Mr A. Spielmann,

        Mr J. De Meyer,

        Mr J. A. Carrillo Salcedo,

        Mr N. Valticos,

        Mr S. K. Martens,

        Mrs E. Palm,

        Mr I. Foighel,

 

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

 

Having deliberated in private on 22-23 February and on 22-23 May 1989,

 

Delivers the following judgment, which was adopted on the

last-mentioned date:

 

PROCEDURE

 

1.      The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 September 1988 and by the

Government of the Kingdom of Sweden ("the Government") on

8 November 1988, within the three-month period laid down in

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention

for the Protection of Human Rights and Fundamental Freedoms ("the

Convention").  It originated in an application (no. 11373/85) against

the Kingdom of Sweden lodged with the Commission under Article 25

(art. 25) by a Swedish national, Mrs Cecilia Eriksson, acting on

behalf of herself and of her daughter Lisa Eriksson, on

7 December 1984.

 

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Sweden recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46).  The

purpose of the Government's application and of the request was to

obtain a decision from the Court as to whether the facts of the case

disclosed a breach by the respondent State of its obligations under

Articles 6 para. 1, 8 and 13 (art. 6-1, art. 8, art. 13) of the Convention

and under Article 2 of Protocol No. 1 (P1-2).

 

2.      In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent them (Rule 30).

 

3.      The Chamber of seven judges to be constituted included ex

officio Mrs E. Palm, the elected judge of Swedish nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)).  On 29 September 1988, in

the presence of the Registrar, the President drew by lot the names of

the other five members, namely Mrs D. Bindschedler-Robert,

Sir Vincent Evans, Mr C. Russo, Mr R. Bernhardt and Mr N. Valticos

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

 

4.      Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5).  On 15 December 1988, having consulted - through the

Registrar - the Agent of the Government, the Delegate of the

Commission and the lawyer for the applicants, he decided that there

was no need at that stage for memorials to be filed (Rule 37 para. 1) and

directed that the oral proceedings should commence on 20 February 1989

(Rule 38).

 

On 16 January 1989 the Registrar received the applicants' claims under

Article 50 (art. 50) of the Convention and certain documents relating

to the domestic proceedings.

 

5.      On 26 January 1989 the Chamber decided to relinquish

jurisdiction forthwith in favour of the plenary Court (Rule 50).

 

6.      The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day.  The Court had held a preparatory

meeting immediately beforehand.

 

There appeared before the Court:

 

(a)  for the Government

 

     Mr H. Corell, Ambassador,

        Under-Secretary for Legal and Consular

        Affairs, Ministry for Foreign Affairs,       Agent;

 

     Mr L. Lindgren, Legal Adviser,

        Ministry of Health and Social Affairs,

 

     Mr C.-H. Ehrencrona, Legal Adviser,

        Ministry for Foreign Affairs,

 

     Mrs I. Wetter, Legal Counsel for Lidingö

         Municipality,                               Advisers;

 

(b)  for the Commission

 

     Mrs G. H. Thune,                                Delegate;

 

(c)  for the applicants

 

     Mrs S. Westerberg, lawyer,                      Counsel.

 

The Court heard addresses by Mr Corell for the Government, by

Mrs Thune for the Commission and by Mrs Westerberg for the

applicants, as well as their replies to its questions.

 

AS TO THE FACTS

 

I.      THE CIRCUMSTANCES OF THE CASE

 

7.      Mrs Cecilia Eriksson and her daughter Lisa Eriksson were born,

respectively, in 1942 and on 24 February 1978 and are both Swedish

citizens.   In January 1979 Cecilia Eriksson married Lisa's father and

in January 1981 they also had a son, Jonas.  They divorced in

February 1986 and Cecilia was granted the custody of both children.

Since March 1978, Lisa has been living in a foster home at Oskarström.

Her mother resided first in Köttkulla, near Ulriceham, but in 1987 she

moved to Köping.

 

A.  The taking of Lisa Eriksson into public care and her mother's

efforts to have care terminated

 

8.      On 23 March 1978 the Southern Social District Council (södra

sociala distriktsnämnden) of Lidingö ("the Social Council") decided

that Lisa should be taken into care pursuant to sections 25(a)

and 29 of the Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the

1960 Act"; see paragraph 36 below) on the ground that the conditions

in the home were unsatisfactory.  She was placed in the foster home at

Oskarström.

 

At that time the mother, Cecilia Eriksson, had personal difficulties.

She had been convicted for dealing in stolen goods and for possession

of narcotics and sentenced to 14 months' imprisonment.  Later, while

in prison, Cecilia Eriksson went through a religious conversion and

she is now a member of the Philadelphia congregation (Pentecostal

movement).

 

9.      In May 1980 the Social Council rejected an application by

Cecilia Eriksson for the termination of the care of her daughter.  Her

appeal to the County Administrative Court (länsrätten) of Stockholm

was dismissed on 22 October 1981 as was, on 11 March 1982, her further

appeal to the Administrative Court of Appeal (kammarrätten) of

Stockholm.

 

10.     On 1 January 1982 the public care of Lisa under the 1960 Act

was transformed into care pursuant to section 1(1) of the 1980 Act

containing Special Provisions on the Care of Young Persons (lagen

1980:621 med särskilda bestämmelser om vård av unga - "the 1980 Act";

see paragraph 36 below).

 

11.     In March 1982 Cecilia Eriksson again applied to the Social

Council requesting that care be terminated.  She also requested

permission to meet Lisa in her home in Köttkulla.  Both requests were

rejected and Cecilia Eriksson appealed to the County Administrative

Court.

 

On 3 November 1982 the court dismissed the appeal concerning the

question of care since there had not been sufficient preparatory

contacts between Lisa and her natural parents; it referred the access

question back to the Social Council for reconsideration.  Cecilia

Eriksson appealed to the Administrative Court of Appeal.

 

B.  The termination of the public care - the prohibition on removal

and the regulation of access

 

12.     However, on 21 January 1983 the Social Council found that

there were no longer any reasons for care under the 1980 Act and

decided:

 

(a)  that, with effect from 15 February 1983, the care of Lisa should

terminate in accordance with section 5(1)(a) of the 1980 Act;

 

(b)  to prohibit until further notice, pursuant to section 28 of the

Social Services Act 1980 (socialtjänstlagen 1980:620; see paragraph 42

below), the natural parents from removing Lisa from the foster home

(flyttningsförbud);

 

(c)  to request recommendations from the Children's and Juveniles'

Psychiatric Clinic (barn- och ungdomspsykiatriska kliniken - "the

Psychiatric Clinic") of Halmstad as to the contacts between Lisa and

the natural parents, against the background that the long-term aim of

the Social Council was that Lisa should return to the latter's home;

 

(d)  that the said recommendations should also contain the Psychiatric

Clinic's view on a proposal that Lisa should stay with her natural

parents during the summer holiday period;

 

(e)  that the contacts between the natural parents and Lisa should

consist of one meeting before 1 March 1983, at which at least one of

the foster parents and also one other person should be present.

 

The prohibition on removal was based on, inter alia, five medical

certificates from the Psychiatric Clinic, signed by Mrs Essving-Levay,

registered physician, and Mrs Gulli Tärn, curator.  According to these

certificates, Lisa was deeply rooted in the foster home and her

transfer to her natural parents' home would jeopardise her mental

health and development.

 

13.     In these circumstances the Administrative Court of Appeal

found no reason to examine the case further (see paragraph 11 above).

 

14.     On 24 February 1983 the Psychiatric Clinic, in a new medical

certificate signed by the same persons, recommended access once every

second month.  The certificate also stated that it was too early for

Lisa to stay with her natural parents during the summer.  The

recommendations were based on the assessment that the child ought to

stay with the foster parents and not be moved to her natural parents

in the near future.

 

On 31 March 1983 the Social Council decided that Cecilia Eriksson

should have a right of access to Lisa in the foster home every second

month.

 

C.  First set of proceedings challenging the prohibition on removal

 

15.     Cecilia Eriksson, represented by legal counsel, appealed to

the County Administrative Court of Stockholm against the Social

Council's decision to issue a prohibition on removal, claiming that it

should be quashed or, in the alternative, limited in time.  The court

held a hearing on 13 September 1983, when evidence was given by

Mrs Essving-Levay, by Lisa's natural father and by an expert from the

County Administrative Board (länsstyrelsen - "the Board").  The Board

had also submitted a written opinion, which contained the following

passage:

 

"The [Board] considers that Lisa should remain in the foster home.

This proposal is, in the Board's opinion, in line with the intentions

of section 28 of the Social Services Act concerning prohibition on

removal.  Lisa has at present enough difficulty in living with the

knowledge that she is not the foster parents' own child and with the

threat that she may be forced at any time to leave the only security

she knows.  Experience shows that, when Lisa grows older, she will

become more curious concerning her natural parents and her own origin.

Only then will she be mature enough to take the first steps towards

reunification.  The [Board] considers that, until then, a removal to

the natural parents would be in conflict with the child's best

interest."

 

16.     The Social Council submitted to the County Administrative

Court a further medical certificate from the Psychiatric Clinic.  This

certificate, dated 7 September 1983 and signed by the same persons as

the previous ones, stated, inter alia, that it was self-evident that

Lisa must stay in the foster home and that her removal would involve a

risk for her mental health which was not of a minor nature.

 

17.     On 10 October 1983 the County Administrative Court allowed the

appeal in part, in that it set a time-limit of 31 March 1984 on the

prohibition on removal.  The court's reasons read, inter alia, as

follows:

 

"The natural parents' contacts with Lisa have become more regular only

during the last two years, with the assistance of, among others,

Mrs Essving-Levay.  Thus, in 1982 there were meetings between Lisa and

the parents in June and in August at Halmstad, in September at

Köttkulla and in November at Oskarström.  Lisa met her mother on some

occasions during 1983, the latest being on 25 August, when the

brother, Jonas, also accompanied the mother to Oskarström.  What has

been established about the circumstances surrounding the meetings

suggests that Cecilia Eriksson's behaviour is probably not the only

reason for their not having been more frequent.  The foster parents

and also the attitudes of other persons involved in the question of

Lisa's removal have probably had an important influence.  In several

written opinions and at the court's oral hearing, Mrs Essving-Levay

has expressed the opinion that the child-psychiatric treatment of Lisa

has had, as its main objective, not the promotion of Lisa's immediate

removal but instead an improvement of the contacts between her and the

natural parents.  At the same time it has been made clear that the

psychiatric treatment of Lisa takes as its starting point

Mrs Essving-Levay's opinion that Lisa should remain in the foster

home.  Finally, it should be mentioned that the [Social Council], in

connection with the decision under appeal, stated that Lisa's removal

should be the long-term aim for its work in the matter.

 

Lisa has lived in the foster home since shortly after her birth.

Obviously she has now, at the age of five years, strong roots in this

home.  She has met her natural parents but rarely.  A removal of Lisa

to the natural parents must therefore be presumed to involve

considerable risks for her health.  However, it has been established,

inter alia through Mrs Essving-Levay's testimony, that Lisa is a

normally developed five-year-old girl who intellectually is rather

over than under the average level.  This and the other circumstances

make it sufficiently probable that a removal of Lisa - in any case

after certain further preparatory contacts with the natural parents -

will entail no more than a passing disturbance in her development.

The County Administrative Court has therefore finally concluded in the

case that the decision appealed against should be limited in

accordance with Cecilia Eriksson's second motion.  As a result the

prohibition on removal may, during a clearly limited period, be used

in order to build up further the relations between Lisa and her

parents."

 

18.     The Social Council appealed to the Administrative Court of

Appeal of Stockholm, requesting that the prohibition be unlimited in

time.  Cecilia Eriksson, represented by legal counsel, submitted that

the prohibition should be quashed or, in the alternative, that the

judgment of the County Administrative Court should be confirmed.

 

19.     The Administrative Court of Appeal held a hearing at which

Mrs Essving-Levay and Lisa's foster mother gave evidence.  At the

court's request, the National Board of Health and Welfare

(socialstyrelsen) submitted, on 13 February 1984, its opinion on the

risks that would be involved if Lisa were removed from the foster

home.  The opinion stated, inter alia:

 

"As regards the assessment from a child-psychiatric point of view, it

is noted that the [Psychiatric Clinic] has clearly expressed the view

that Lisa should not be removed from the foster home.  This view is,

in the opinion of the National Board of Health and Welfare,

well-founded, as it is based on knowledge of the development and needs

of children applied to Lisa's special situation.

 

It is the opinion of the National Board of Health and Welfare that a

change of the persons responsible for the upbringing of a child always

constitutes a serious interference and should not take place unless

there are strong reasons, for instance that the child is badly cared

for where it is living.  Child psychological research and clinical

experience demonstrate that separations can imply a risk of serious

mental harm to the child.  In this case Lisa, who is now six years

old, has lived since a very young age in the present foster home,

where she has developed well together with the adults to whom she is

attached.  She is in an important phase of development and has not yet

attained the age and maturity where she can decide for herself.  She

ought not to be placed in a situation of choice of this kind.  There

are no established contacts with the natural parents, despite the

efforts which have been made.  The documents reveal that the father

has not participated in the meetings with the foster parents which

were arranged during 1983.  He has not seen Lisa since 1982.

 

In this case new facts have come to light which change the picture of

the parents' home.  [The documents received from the court] showed

only that the rehabilitation of the parents has developed well.  A

telephone conversation with the social director of Ulriceham

on 17 January 1984 disclosed that the father had lost his temporary

job and had started to drink alcohol again.  He has been convicted of

drunken driving and lost his driving licence.  The mother's post as a

child-minder is temporary, while the usual employee is on maternity

leave.  However, no criticism is levelled against the mother as

regards her work.

 

The assessment of the National Board of Health and Welfare, against

the background of the facts of this case, is that Lisa will, if moved

from the foster family, be subjected to a risk, which is not of a

minor nature, of harm to her psychological health and development.  It

is therefore important that she can remain in the foster home.  The

Board finds that section 28 of the Social Services Act is applicable.

However, it considers that Lisa's security from a legal point of view

should be regulated for the future.  The [Social Council] should

therefore, in view of the changed conditions in the natural parents'

home, investigate whether the [1980 Act] has become applicable again.

The [Social Council] could also consider the possibility of requesting

a transfer of custody to the foster parents under Chapter 6,

section 8, of the Parental Code [föräldrabalken; see paragraph 50

below]."

 

20.     On 6 March 1984 the Administrative Court of Appeal amended the

judgment of the County Administrative Court by setting the time-limit

for the prohibition on removal at 30 June 1984.  Its reasons included

the following:

 

"The investigation in the case has revealed nothing which gives reason

to doubt that Cecilia Eriksson is well suited to take care of

children.  Lisa's younger brother Jonas lives in Cecilia's home where,

as a municipal child-minder, she also takes care of a further child.

 

In its decision of 31 March 1983 the [Social Council] decided that

Cecilia Eriksson should have a right of access to Lisa in the foster

home every second month.  At the hearing before the Administrative

Court of Appeal, it appeared that one or more representatives of the

[Social Council] had been present on these sporadic occasions of

contact decided by the Council, that Cecilia Eriksson had never been

given the opportunity on these occasions to be alone with Lisa and

that the foster mother had not considered that the time was yet ripe

to inform Lisa that it was her mother who was visiting the foster

home.  Cecilia Eriksson has not so far been allowed to meet Lisa in

her own home.

 

The Administrative Court of Appeal makes the following assessment.

More than one year has elapsed since the [Social Council] decided that

the care under the [1980 Act] should terminate and that it should

promote the reunification of Lisa and her natural parents.  The

investigation of the case does not suggest that Cecilia Eriksson has

not accepted the [Social Council's] directives regarding her access to

Lisa during this period.  The Administrative Court of Appeal finds

that what the [Social Council] has done so far, by way of preparatory

measures for the removal of Lisa, has obviously not been calculated to

promote to any measurable extent the conditions for such a

reunification.  The situation today as regards the child's removal to

the parents can be regarded as no different from what it was one year

ago.  Lisa still does not even know that it is her mother who visits

her in the foster home.  According to the information supplied to the

Administrative Court of Appeal at the hearing, the antagonism which

the County Administrative Court found to exist between the foster

mother and Cecilia Eriksson still prevails.  This antagonism is

however, in the opinion of the [court], not necessarily an absolute

obstacle to active preparatory measures for the child's transfer.

 

It is undisputed that a transfer of Lisa to the parents' home without

preparatory measures must be presumed to carry considerable risks for

her health.  Cecilia Eriksson has declared that she is well aware of

these risks and that she does not wish to take the child home for good

until this can be done without any risk of harming her.  Making an

overall assessment of what has been established in the case, the

Administrative Court of Appeal nevertheless finds that there are

reasons for a temporary prohibition on removal.  In view of what has

been established, it is reasonable to limit the prohibition on removal

in time.  The preparatory measures which have been taken until now

have, as far as it appears, not been such that the child can be

removed within the time-limit prescribed by the County Administrative

Court.  The Administrative Court of Appeal - which assumes that the

[Social Council], in pursuing its aim of reuniting the child and the

natural parents, will as soon as possible try new possibilities and

intensify its work in this respect - finds that some more time for

preparatory measures is necessary before the prohibition on removal

can be lifted."

 

21.     Both Cecilia Eriksson, with the assistance of legal counsel,

and the Social Council appealed to the Supreme Administrative Court

(regeringsrätten).  The mother later withdrew her appeal.

 

22.     In its judgment of 11 October 1984 the Supreme Administrative

Court allowed the appeal by the Council by confirming the latter's

decision of 21 January 1983 that the prohibition should be valid until

further notice.

 

The court gave the following reasons:

 

"Under section 28 of the Social Services Act, the Social District

Council may, where the interests of the child so require, prohibit the

guardian from removing a child from a foster home, provided that there

is a risk, which is not of a minor nature, of harming the child's

physical or mental health if it is moved from the home.  When a child

is placed in a foster home, the aim should normally be to reunite the

child and his parents.  A prohibition under section 28 of the Social

Services Act ought to be regarded as a temporary measure pending the

arrival of an appropriate moment for moving the child from the foster

home without the risk of such detrimental effects as are indicated in

the said section.

 

The circumstances to be considered when deciding on a prohibition on

removal include the child's age, stage of development, character and

emotional relations; the time he has been taken care of by someone

other than his natural parents; his present and prospective living

conditions; and the contacts between the parents and the child whilst

they were separated.

 

Since Cecilia Eriksson has withdrawn her appeal against the judgment

of the Administrative Court of Appeal, the Supreme Administrative

Court must determine whether the prohibition on removal should remain

in force until further notice, as claimed by the [Social Council], or

should be limited in time, in accordance with the position adopted by

the [mother].

 

The question of the duration of a prohibition on removal must be

examined in the light of the existing risk to the child's physical or

mental health if separated from his home.  If, at the time the

prohibition is issued, it is already considered, with sufficient

certainty, that such a risk will not obtain after a certain date - by

when certain steps may have been taken or produced their effects -,

the prohibition ought to be limited until that date.  However, if it is

uncertain when the child could be transferred to the parents without

this involving a risk which is not of a minor nature, the prohibition

ought to be in force until further notice and the question of a

transfer ought to be raised again at a later stage when the risk of

harming the child's health can be better assessed.  Irrespective of

the duration of the prohibition, the [Social Council] is obliged to

see to it that appropriate measures aimed at reuniting parents and

child are taken without delay.  Such measures are required in

particular when the Council, in accordance with what has just been

said, has found reasons for issuing a prohibition until further

notice.  Otherwise there is a great risk that the child will, in the

meantime, become more closely linked to the family he is about to

leave.

 

The efforts to establish contacts between Lisa and her natural

parents, which already began some three years ago, have, as far as can

be seen from the documents, not progressed beyond the point that Lisa

has occasionally seen them together with her present family and

generally - as a result of the [Social Council's] directives - also in

the presence of an adult outsider.  The meetings have been coloured by

the antagonism between the adults of the two families, and both before

and afterwards, Lisa, who appears to have realised only at a late

stage who her natural parents are, has shown signs of anxiety and a

psychological state of strain.  The evidence concerning the intensity

of Lisa's reactions clearly shows that a period of time longer than

that decided by the lower courts is required before a transfer can be

made.  Since appropriate measures aimed at reunification have not yet

been taken there is, at the moment, no basis for setting a date on

which the transfer could be made without jeopardising Lisa's mental

health.  The prohibition on removal shall therefore remain in force

until further notice."

 

D.  Second set of proceedings challenging the prohibition on removal

 

23.     On 28 November 1984 Cecilia Eriksson requested the Social

Council that her child be returned to her custody.  This request was

dismissed on 18 January 1985 on the ground that the risk for the

child's mental health resulting from a removal from the foster home

would be the same as when the Supreme Administrative Court delivered

its judgment of 11 October 1984 (see paragraph 22 above).

 

24.     The mother appealed to the County Administrative Court.  She

requested that the prohibition on removal be quashed and that the

child be returned to her in accordance with the rules laid down in

Chapter 21 of the Parental Code (see paragraphs 46-49 below).

On 8 October 1985 she withdrew her appeal and, as a result, the court

struck the case off its list on 23 October.

 

25.     According to Cecilia Eriksson, her reason for withdrawing was

the following.  The Social Council had informed her through a private

team of psychologists, to which the Council had turned in January 1985

to solve the question of her contacts with Lisa, that as long as she

continued to bring proceedings in the matter she would not be able to

meet her daughter alone, but that this would be possible - at certain

weekends - if she withdrew her action.  As she knew that one condition

for her being reunited with her child was that they got to know one

another, she abandoned the appeal.

 

The Government dispute these affirmations.  According to them, Cecilia

Eriksson herself, in a telephone conversation with a social welfare

officer on 7 November 1985, denied that she was given any such

information and stated that her counsel had "exaggerated a lot" when

describing the situation as something similar to blackmail.  The

Government concede, however, that the psychologists had explained to

Cecilia Eriksson that meetings would be facilitated if Lisa was not

faced with the threat of being forced to move to her mother as a

result of the proceedings pending before the courts.

 

E.  The Social Council's refusal to decide the question of access

 

26.     On 6 August 1985, prior to withdrawing her appeal,

Cecilia Eriksson lodged with the Social Council a request for access

to the child every second weekend.  On 16 August the Council decided

"not to decide at present on the access and the frequency of access".

It noted that it could not indicate any avenues of appeal since there

was no legal provision on which a decision on access could be based.

 

F.  Third set of proceedings challenging the prohibition on removal

 

27.     On 15 January 1987 Cecilia Eriksson made a fresh request to

the Social Council that the prohibition on removal be lifted.

On 13 March 1987 the Council decided to investigate the consequences

for Lisa of such a course.

 

28.     On 21 May 1987 the Psychiatric Clinic sent to the Social

Council a report signed by Mrs Essving-Levay and by a registered

psychologist, Mrs Anne Christiansson.  It contained the following

passage:

 

"How will Lisa react to a possible removal to Cecilia, in our opinion?

She will regress.  There is a great risk that the regression will go

so far that she loses contact with reality, i.e. becomes psychotic, a

state which is extremely difficult to treat and is very likely to

become permanent.  Inter alia, she will withdraw within herself and

will not adapt herself to the world around her.  She will not be able

to go to school since she will be preoccupied by her inner anxieties

and chaos.  She will perceive her removal from her foster parents as

very treacherous on their part.  In making this pessimistic

assessment, we base ourselves on material and reactions which came to

light during Lisa's therapy.  Lisa is weak, lacking in confidence and

does not have adequate mental resources to cope with separation.  The

conversations that we have had with her this year have been of a

horrifying nature.  She says that she does not want to live if she has

to move to Cecilia.  For many years she has lived in fear of being

taken away from her home by Cecilia.

 

In our opinion Lisa must be able to stay in her foster home for good.

If Lisa is to be separated from her home and moved to Cecilia, there

is a risk, which is not of a minor nature, that Lisa's mental health

will be irrevocably harmed; in addition there is a risk for her life."

 

29.     On 5 June 1987 the Social Council decided not to lift the

prohibition on removal.  Cecilia Eriksson appealed to the County

Administrative Court of Stockholm.  Her appeal was accompanied by an

application for an immediate transfer of Lisa to her pursuant to

Chapter 21, section 7, of the Parental Code (see paragraph 49 below).

 

30.     The County Administrative Court held a hearing on

26 August 1987 after which it decided to appoint as its expert

(sakkunnig) a psychologist who had not taken part in the earlier

investigations.  The decision of the court contained the following

observations:

 

"The court's problem is that the law in force does not quite reflect

the latest fundamental principles which are generally recognised

within medical and behavioural sciences, namely that a child in Lisa's

situation should never be transferred to his or her parent even if

that parent is the child's guardian.  The true meaning of the law,

especially as interpreted in certain decisions of higher courts, is

that there is a very high level of tolerance regarding the suffering

and the risks to which a child can be exposed when being transferred

to its parent in order to let the parent have access to the child or

in order for the child to be definitely transferred to the parent.

These levels can be lowered if the risks for the child's future health

and development after reunification are considered serious and/or

likely to subsist for a considerable time.  This legal assessment also

has to take into account the child's state of health before the

reunification.  The court feels that it would be correct to say that

the parents' right to bring up and take care of their children

themselves is still recognised by the law in force to a larger extent

than by modern medical and behavioural sciences, which have concern

for the child's well-being as sole guideline.  When examining the case

the court therefore has to strike a balance between Cecilia Eriksson's

right to be with Lisa and to bring her up and the risks involved

regarding Lisa's future health and development if Cecilia Eriksson's

legitimate demands are met."

 

31.     Both the appeal concerning the prohibition on removal and the

application under the Parental Code were dismissed by the County

Administrative Court on 15 June 1988.

 

In its judgment the court stated, inter alia:

 

"In the opinion of the court, it is evident that high demands must be

placed on the Social District Council when it comes to taking measures

to facilitate meetings between Cecilia and Lisa in order to prepare

the ground for a reunification.  It is therefore no excuse that the

contacts between the persons involved, the authorities and the

personnel giving treatment, have been strained.  Passivity is, by way

of example, shown by the fact that the Council has taken no measure in

view of the deteriorating relations between Cecilia Eriksson and

Söderling-Gard [a family consultant engaged by the Social Council].

Söderling-Gard has expressed the opinion that Cecilia Eriksson should

never get Lisa back and she has been engaged to convince Cecilia

Eriksson of that ...

 

It is remarkable that the Council did not in these circumstances,

which must have been obvious to it for a long time, take any measures

to ensure that Söderling-Gard would either act herself in accordance

with the judgment of the Supreme Administrative Court or otherwise

engage someone else in order to ensure that this was effectively done.

 

The Council has not taken active measures, as intended, to promote

access and reunification effectively.  By not doing so the Council

has, on the contrary, contributed to reducing the possibilities of

lifting the prohibition on removal.  The Council has rather, by its

relative passivity, achieved the result that the prohibition on

removal has become self-fulfilling."

 

32.     An appeal by Cecilia Eriksson against the judgment of the

County Administrative Court to the Administrative Court of Appeal was

dismissed in a judgment of 31 October 1988.  On 9 December 1988 the

Supreme Administrative Court rejected her application for leave to

appeal against the latter judgment.

 

G.  The request for a transfer of custody to the foster parents

 

33.     The Social Council introduced an action before the District

Court (tingsrätten) of Sjuhäradsbygden requesting that the custody of

Lisa be transferred to the foster parents pursuant to Chapter 6,

section 8, of the Parental Code (see paragraph 50 below).  The court

held a hearing on 10 October 1987, after which it ordered that the

competent Social Council should submit an opinion.  The court also

rejected the Social Council's request for an interim order, pending

the final judgment, that the custody of the child be transferred to

the foster parents.

 

H.  Particulars concerning the contacts between the applicants

 

34.     A total of eight meetings took place between Cecilia Eriksson

and Lisa between 1978, when Lisa was taken into public care, and 1983,

when the care was terminated.

 

35.     Thereafter and up to September 1987, mother and daughter have

met on 29 (according to the Government) or 25 (according to

Cecilia Eriksson) different occasions, as follows: six in 1983, five

in 1984, five in 1985, nine in 1986 and at least four in 1987

(according to the Government).  Cecilia Eriksson has alleged that of

these meetings only four, lasting two hours each, have not been

supervised by the foster parents and/or social welfare officers.

 

II.     RELEVANT DOMESTIC LAW

 

A.  The Social Services Act 1980 and the 1980 Act containing Special

Provisions on the Care of Young Persons

 

36.     From 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 of the individuals concerned.  Decisions which had

been taken under the previous legislation, the 1960 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.

 

1.  Compulsory care

 

37.     Where the parents do not give their consent to the necessary

measures, compulsory care may be ordered under the 1980 Act.

 

Section 1, paragraphs 1 and 2, of this Act read:

 

"Care is to be provided pursuant to this Act for persons under

eighteen years of age if it may be presumed that the necessary care

cannot be given to the young person with the consent of the person or

persons having custody of him and, in the case of a young person aged

fifteen or more, with the consent of the young person.

 

Care is to be provided for a young person if

 

1.      lack of care for him or any other condition in the home

entails a danger to his health or development, or

 

2.      the young person is seriously endangering his health or

development by abuse of habit-forming agents, criminal activity or any

other comparable behaviour."

 

38.     It is primarily the responsibility of the municipalities to

promote a positive development for the young.  For this purpose each

municipality has a Social District Council, composed of lay members

assisted by a staff of professional social workers.

 

39.     If the Social Council deems it necessary to take a child into

care, the 1980 Act specifies that the Council has to apply to the

County Administrative Court for a decision to this effect.  Decisions

by the County Administrative Court may be appealed to the

Administrative Court of Appeal.  A further appeal lies to the Supreme

Administrative Court if it grants leave.

 

40.     Once a decision on public care has been taken, the Social

Council has to execute the decision, take care of the practical

details of where to place the child, what education and other

treatment to give him, etc.  The law requires the care of the child to

be carried out in such a way as to enable him to have close contact

with his relatives and to be able to visit his home.  This requirement

may mean that the child returns to his home, after a period, to live

there, although he is still formally under public care.

 

The Social Council may, under section 16 of the 1980 Act, regulate

visits to and by parents and also decide not to disclose the

whereabouts of the child to them.  Such decisions may be appealed to

the administrative courts by both the parents and the child.

 

41.     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 "shall decide to terminate care under the Act when

such care is no longer necessary".

 

2.  Prohibition on removal

 

42.     The Social Council may issue a prohibition on removal under

section 28 of the Social Services Act, which reads as follows:

 

"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 separated from that home.

 

If there are reasonable grounds to assume 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 4 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."

 

The Government Bill mentioned that a purely passing disturbance or

other occasional disadvantage to the child was not sufficient ground

for issuing a prohibition on removal (1979/80:1, page 541).  It stated

that the factors to be considered when deciding whether or not to

issue such a prohibition included the child's age, degree of

development, character, emotional ties and present and prospective

living conditions, as well as the time he had been cared for away from

the parents and his contacts with them while separated.  If the child

had reached the age of 15, his own preference should not be opposed

without good reasons; if he was younger, it was still an important

factor to be taken into account.

 

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 harm to the child's physical

or mental health, thus even where no serious objections existed in

regard to the guardian.  The Committee also stressed that the

provision was aimed at safeguarding the best interests of the child

and that those interests must prevail whenever they conflicted with

the guardian's interest in deciding the domicile of the child.  It

also took as its point of departure the assumption that a separation

generally involved a risk of harm to the child.  Repeated transfers

and transfers which took place after a long time, when the child had

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 should be decisive.

 

43.     Section 28 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.  Whilst that right in principle revives on the

termination of such care, it may be further suspended by an

application of section 28 by the social authorities.

 

44.     Under section 73 of the Social Services Act, a decision taken

under section 28 may be appealed to the administrative courts.  In

practice, besides the natural parents both the child concerned and the

foster parents have been allowed to lodge such appeals.  In the

proceedings before the administrative courts, a special guardian may

be appointed to protect the interests of the child, should these come

into conflict with those of the child's legal guardian.

 

45.     In a recent decision (no. 2377 of 18 July 1988), the Supreme

Administrative Court held that a decision by the Social Council to

restrict the access rights of the appellants, Mr and Mrs Olsson, while

a prohibition on removal under section 28 of the Social Services Act

was in force had no legal effect and that no appeal to the

administrative courts would lie against such a decision.  The court

stated:

 

"Under section 16 of the [1980 Act] ..., a Social Council may restrict

the right of access in respect of children taken into public care

under this Act.  As regards the right of access to children while a

prohibition on removal is in force, no similar power has been vested

in the Social Council in the relevant legislation.  As there is no

legal provision giving the Social Council power to restrict the right

of access during the validity of the prohibition on removal ..., the

instructions given by the President of the Social Council in order to

limit the right of access have no legal effect.  Nor can any right of

appeal be inferred from general principles of administrative law or

from the European Convention on Human Rights."

 

B.  The Parental Code

 

46.     Chapter 21 of the Parental Code deals with the enforcement of

judgments or decisions regarding custody and other related matters.

 

47.     Section 1 specifies that actions for the enforcement of

judgments or decisions by the ordinary courts concerning the custody

or surrender of children or access to them are to be instituted before

the County Administrative Court.

 

48.     According to section 5, enforcement may not take place against

the will of a child who has reached the age of 12 unless the County

Administrative Court finds enforcement to be necessary in the child's

best interests.

 

49.     Under section 7, if the child is staying with someone other

than the holder of custody, the child's custodian may, even when no

judgment or decision as described in section 1 exists, seek from the

County Administrative Court an order for the transfer of the child to

him.  Such an order may be refused if the best interests of the child

require that the question of custody be examined by the ordinary

courts.

 

When taking decisions under this section, the County Administrative

Court shall also observe the requirements laid down in section 5

(see paragraph 48 above).

 

50.     Under Chapter 6 of the Parental Code, the Social Council may,

in certain cases, request the ordinary courts to transfer custody from

the child's parents to the persons who are in fact taking care of the

child.  Section 8 of this Chapter reads:

 

"If a child has been permanently cared for and brought up in a private

home other than its parental home and if it is obviously in the best

interest of the child that the prevailing relationship may continue

and that custody be transferred to the person or persons who have

received the child or to one of them, the court shall appoint the said

person or persons to exercise custody of the child as specially

appointed guardians."

 

Such a transfer of custody is, apart from adoption, the most severe

measure available against the natural parents.  Although they retain

certain rights and obligations, such as the right of access and the

obligation to pay maintenance, their legal position as guardians is

definitively transferred to the foster parents.

 

51.     A report (SOU 1986:20) from the Social Commission

(socialberedningen), appointed by the Government, has proposed that

there be a co-ordination between compulsory care and prohibition on

removal in order to avoid a duplication of procedures.  A similar

proposal has been made in a report (Ds S 1987:3) submitted in

April 1987 by a special investigator appointed by the Government.

 

PROCEEDINGS BEFORE THE COMMISSION

 

52.     In their application of 7 December 1984 to the Commission

(no. 11373/85), Mrs Cecilia Eriksson and her daughter Lisa alleged

violations of Articles 6 para. 1, 8 and 13 (art. 6-1, art. 8, art. 13)

of the Convention and of Article 2 of Protocol No. 1 (P1-2).  They also

complained that, contrary to Article 25 (art. 25) of the Convention, the

exercise of their right to petition the Commission had been hindered

as a result of the domestic authorities' decision not to grant legal

aid for the purpose of bringing the application before the Commission.

 

53.     On 11 May 1987 the Commission declared the application

admissible although it decided to take no action with respect to the

complaint under Article 25 (art. 25).

 

In its report of 14 July 1988 (Article 31) (art. 31), the Commission

expressed the opinion:

 

(a)     by eight votes to two, that there had been a breach of

Article 6 para. 1 (art. 6-1) of the Convention in respect of the claim for

access to Lisa (see paragraph 26 above);

 

(b)     by nine votes to one, that the rights of both applicants under

Article 8 (art. 8) of the Convention had been violated;

 

(c)     unanimously, that there had not been a violation of the

Convention or Protocol No. 1 as regards the remaining complaints.

 

The full text of the Commission's opinion and of the dissenting

opinion and the concurring opinion contained in the report is

reproduced as an annex to this judgment.

 

AS TO THE LAW

 

I.      SCOPE OF THE ISSUES BEFORE THE COURT

 

54.     In the course of their submissions, the applicants made a

number of general complaints concerning the alleged incompatibility

with the Convention of, firstly, Swedish child-care law, in particular

the 1980 Act in combination with section 28 of the Social Services

Act, and, secondly, the practice of the Swedish courts.

 

The Court recalls that in proceedings originating in an application

lodged under Article 25 (art. 25) of the Convention it has to confine

itself, as far as possible, to an examination of the concrete case

before it.  Its task is accordingly not to review the aforesaid legal

provisions and practice in abstracto, but to determine whether the

manner in which they were applied to or affected Mrs Eriksson and her

daughter Lisa gave rise to a violation of the Convention.

 

55.     The Court notes that no complaint was raised before it as

regards the initial decision to take Lisa into public care or its

implementation.

 

II.     THE MOTHER'S COMPLAINTS

 

A.  ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION

 

56.     Mrs Eriksson alleged that the decision to prohibit her for an

indefinite period from removing her daughter from the foster home, the

maintenance in force of this prohibition for more than six years, the

restrictions imposed on her access to the child and the Social

Council's failure to reunite the applicants violated 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 Government contested this allegation whereas the Commission

accepted it.

 

1.  Existence of interferences

 

57.     The Government accepted that the issuing and maintenance in

force of the prohibition on removal constituted an interference with

the mother's right to respect for her family life.  Nevertheless, they

pointed out that if a decision had been taken to reunite Lisa with her

mother following the lifting of the care order in January 1983, this

could have been regarded as an interference with Lisa's right to

respect for her family life with the foster family.

 

The measures taken after the lifting of the care order, notably the

restrictions imposed on the mother's access to her daughter, did not,

in the Government's view, amount to a separate interference.

 

58.     The mutual enjoyment by parent and child of each other's

company constitutes a fundamental element of family life; furthermore,

the natural family relationship is not terminated by reason of the

fact that the child has been taken into public care (see the Olsson

judgment of 24 March 1988, Series A no. 130, p. 29, para. 59).

 

The prohibition on removal and its maintenance in force for an

unlimited period certainly amounted to an interference with

Mrs Eriksson's right to respect for family life in the above-mentioned

sense.  The existence of such an interference is not affected by the

daughter's relationship with her foster parents.

 

As regards the other measures, there can be no doubt that at least the

restrictions on access imposed by the social authorities also

constituted an interference with this right (see further paragraph 81

below).

 

For an interference to be justified according to Article 8 para. 2

(art. 8-2), it has to be shown to be "in accordance with the law", to

have an aim or aims that is or are legitimate under this paragraph and

to be "necessary in a democratic society" for the aforesaid aim or

aims.

 

2.  "In accordance with the law"

 

(a)  The prohibition on removal

 

59.     The prohibition on removal was based on section 28 of the

Social Services Act.  To the extent that Cecilia Eriksson's allegation

that Swedish legislation is not in conformity with the Convention (see

paragraph 54 above) concerns the quality of this section as a "law"

for Convention purposes, the Court recalls the following requirements

which flow from the phrase "in accordance with the law": the law must

be sufficiently precise; there must be a measure of protection against

arbitrary interferences by the public authorities with, inter alia,

the right to respect for family life; if the law confers a discretion,

its scope and manner of exercise must be indicated with sufficient

clarity to afford such protection (see the above-mentioned Olsson

judgment, Series A no. 130, p. 30, para. 61).

 

60.     Section 28 itself is admittedly worded in rather general terms

and confers a wide measure of discretion.  However, it is scarcely

feasible to set out in advance all the circumstances in which the

removal of a child from a foster home may cause a serious risk of

harming his physical or mental health.  If the authorities'

entitlement to act were to be confined to cases where actual harm had

already occurred, the effectiveness of the protection which the child

requires would be unduly reduced.  Moreover, in interpreting and

applying this section, the relevant preparatory work (see paragraph 42

above) provides guidance as to the exercise of the discretion it

confers and the administrative courts have competence to review at

several levels the decisions made pursuant to this section.

 

Taking these safeguards against arbitrary interferences into

consideration, the scope of the discretion conferred on the

authorities by the section in question appears to the Court to be

reasonable and acceptable for the purposes of Article 8 (art. 8).

 

61.     Mrs Eriksson also submitted that the prohibition on removal

had not been issued in accordance with Swedish law as there was no

evidence of any risk to Lisa's health if she were to be moved.

Moreover, she claimed that the domestic courts had in fact applied

section 28 incorrectly, in that they had based their judgments,

upholding the prohibition, on what they considered to be "the most

suitable and happiest solution" for Lisa and not on the risks to her

health.

 

62.     The Court would first recall that its power to review

compliance with domestic law is limited; it is in the first place for

the national authorities, notably the courts, to interpret and apply

that law (see, for example, the Chappell judgment of 30 March 1989,

Series A no. 152, p. 23, para. 54).

 

Like the Commission, the Court observes that the prohibition on

removal has been examined by the administrative courts

(see paragraphs 15-22 and 27-32 above) and that nothing in their

judgments suggests that it was contrary to Swedish law.

 

63.     The interference resulting from the prohibition on removal was

thus "in accordance with the law".

 

(b)  The restrictions on access

 

64.     Before the Court, Mrs Eriksson alleged that the restrictions

imposed on her access to her daughter (see paragraphs 14, 26 and 34-35

above) lacked any basis in domestic law.  This allegation was accepted

by the Delegate of the Commission.  The Government disagreed: they

maintained that the restrictions had the aim of protecting the

daughter's welfare and that this aim provided a standard which, as

such, fulfilled the requirement of being "in accordance with the law"

even if the standard was not laid down explicitly in a specific

provision.

 

65.     As was pointed out by the Delegate of the Commission, the

imposition of restrictions on access while a prohibition on removal is

in force has been found by the Supreme Administrative Court to lack

all legal effect as there are no legal provisions on which any such

restrictions could be based (see paragraph 45 above).  Having regard

to this authoritative interpretation of Swedish law, the Court

concludes that the interference in question with Mrs Eriksson's right

to respect for family life did not have the requisite basis in

domestic law and was therefore not "in accordance with the law" for

the purposes of Article 8 (art. 8).

 

3.  Legitimate aim

 

66.     The Commission accepted that the aims of the measures

complained of were, as stated by the Government, "the protection of

health" and "the protection of the rights and freedoms of others",

that is, in the instant case, of Lisa.  Before the Court, Mrs Eriksson

disputed the legitimacy of the aims behind the interference.  She

maintained that the child's best interests had been completely

disregarded from the very beginning and that no risk to her health had

ever been established in connection with the prohibition on removal.

 

67.     Section 28 is clearly designed to protect the legitimate

interests of children when a care order is lifted.  The Court has also

found (see paragraph 62 above) that there is nothing to suggest that

the prohibition on removal was not imposed in accordance with this

section.  It accordingly concludes that that measure did have the aims

invoked by the Government.

 

Although the Court has found that the restrictions on access had no

basis in domestic law (see paragraph 65 above), it does not doubt that

they were imposed with the legitimate aims of protecting Lisa's health

and rights.

 

4.  "Necessary in a democratic society"

 

68.     It has also to be considered whether the measures at issue

could be regarded as "necessary in a democratic society".  The

Government maintained that this requirement was met, but the

Commission came to the conclusion that this was not the case.

 

69.     The notion of necessity implies that the interference must be

proportionate to the legitimate aim pursued; in determining whether an

interference is "necessary in a democratic society", the Court will

take into account that a margin of appreciation is left to the

Contracting States (see, amongst many authorities, the above-mentioned

Olsson judgment, Series A no. 130, pp. 31-32, para. 67).

 

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 child.

The care order had been lifted, and there was no doubt as to the

suitability of Mrs Eriksson to take care of children or of the

conditions in her home (see paragraph 20 above).  The Social Council's

decision of 21 January 1983 (see paragraph 12 (c) above) made it clear

that once the care order was no longer in force, the aim was the

reuniting of parent and child.  Furthermore the Supreme Administrative

Court stated, in its judgment of 11 October 1984 (see paragraph 22

above), that "[i]rrespective of the duration of the prohibition, the

[Social Council] is obliged to see to it that appropriate measures

aimed at reuniting parents and child are taken without delay".

 

However, it appears that under Swedish law Mrs Eriksson did not, after

the lifting of the care order, have any enforceable visiting rights

while the prohibition on removal was in force.  Furthermore, and in

particular on account of the restrictions on access, she was in fact

denied the opportunity to meet with her daughter to an extent and in

circumstances likely to promote the aim of reuniting them  or even the

positive development of their relationship.  In this situation she has

not been able to have the prohibition on removal lifted.  The

resulting stress on the relations between the applicants and the

uncertainty with regard to Lisa's future have already continued for

more than six years, causing great anguish to both applicants.

 

The Government admitted that the system as implemented had failed on

this occasion, but argued that situations such as the present could

not be prevented whatever system would have been applied, as all

depended on the persons involved.  The Court recognises that

difficulties may arise in consequence of the termination of public

care of young children, especially where the child has been taken into

care at a very young age and has spent many years away from his

natural parents' home.  However, the unsatisfactory situation that has

ensued in the present case seems to a large extent to stem from the

failure to ensure any meaningful access between mother and daughter

with a view to reuniting them.

 

Having regard to the foregoing and notwithstanding Sweden's margin of

appreciation, the Court concludes that the severe and lasting

restrictions on access combined with the long duration of the

prohibition on removal are not proportionate to the legitimate aims

pursued.

 

72.     Accordingly, Article 8 (art. 8) of the Convention has been

violated.

 

B.  ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION

 

73.     Mrs Eriksson also complained of a number of violations of

Article 6 para. 1 (art. 6-1) of the Convention, which reads:

 

"In the determination of his civil rights and obligations ... everyone

is entitled to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law.  ..."

 

Before the Court, the Government maintained that there had been no

such violations, although they withdrew their initial plea that this

Article (art. 6-1) was not applicable.

 

1.  Proceedings concerning the prohibition on removal

 

(a)  Fairness of the proceedings

 

74.     Mrs Eriksson submitted in essence that the administrative

court proceedings following her first challenge of the prohibition on

removal (see paragraphs 15-22 above) were unfair since she was at a

disadvantage compared with the social authorities and the foster

parents, who had Lisa under their control and were therefore able to

influence her attitudes.

 

She also complained that the administrative courts took their

decisions without having before them any opinion from an independent

medical expert, and that she was herself unable to challenge the

evaluations by the Social Council's experts as she was allegedly not

allowed to have her daughter examined by an expert of her own choice.

 

75.     The first of the above complaints relates not to the fairness

of the proceedings, but to the factual situation in the case.  As

regards the second complaint, the Court is satisfied from the

information before it that proper steps were taken to obtain

sufficient expert medical opinion for the purposes of the proceedings.

 

Considering the proceedings as a whole, the Court concludes, like the

Commission, that they were not incompatible with Article 6 para. 1

(art. 6-1).

 

(b)  Length of the proceedings

 

76.     Mrs Eriksson further claimed that the first set of proceedings

(see paragraphs 15-22 above) had not been concluded within a

reasonable time.

 

77.     The period to be taken into consideration for this purpose is

approximately 20 months.  The Court agrees with the Commission that

the duration of these proceedings, at three levels of jurisdiction, is

not excessive for the purposes of Article 6 para. 1 (art. 6-1).

 

(c)  Withdrawal of an appeal

 

78.     Mrs Eriksson claimed that there was a further violation of her

right to access to the courts in the second set of proceedings, in

that she was allegedly forced by the Social Council to withdraw her

appeal against its decision of 18 January 1985 (see paragraphs 23-25

above).

 

79.     The material before the Court does not substantiate this

allegation, which was contested by the Government.  Besides, the

applicant has not brought any complaint before any Swedish authority

empowered to examine matters of this kind.  No violation of

Article 6 para. 1 (art. 6-1) on this point has therefore been established.

 

2.  Judicial review of the restrictions on access

 

80.     Mrs Eriksson asserted that she did not have any remedy before

a court with regard to the restrictions imposed on her access to Lisa.

 

In its decision of 18 July 1988 in the Olsson case, the Supreme

Administrative Court held that no administrative appeal lay against a

decision by the Social Council to restrict access (see paragraph 45

above).  The Government admitted that this was so, but submitted that

Mrs Eriksson could have had a court review of the reasons underlying

the restrictions by challenging the prohibition on removal or by

requesting the return of her child under Chapter 21, section 7, of the

Parental Code.  In their opinion, the question of access was so

closely connected to the question where the child should remain and

for how long, that the two questions were really elements of the same

problem.

 

81.     Like the Commission, the Court is unable to accept this

argument.  Especially in cases of the present kind, the question of

access is quite distinct from the question of whether or not to uphold

the prohibition on removal (see, mutatis mutandis, the W v. the United

Kingdom judgment of 8 July 1987, Series A no. 121-A, pp. 35-36, para. 81):

only if sufficient access is first permitted will there be real

possibilities of having the prohibition on removal lifted.  The

recourse available in the administrative courts in the form of a

challenge to the prohibition on removal is thus not sufficient for the

purpose of the mother's claim for access rights.  An application under

section 7 of Chapter 21 of the Parental Code must also be considered

irrelevant for this purpose, as such an application will in principle

succeed only in the same circumstances as a challenge to a prohibition

on removal (see paragraph 49 above).

 

82.     There has accordingly been a violation of Article 6

(art. 6) on this point.

 

C.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)

 

83.     Mrs Eriksson submitted that there was a violation of Article 2

of Protocol No. 1 (P1-2) to the Convention as the prohibition on

removal and the restrictions on access prevented her from giving her

daughter an education according to the beliefs of the Pentecostal

movement.  The relevant part of Article 2 (P1-2) reads:

 

"In the exercise of any functions which it assumes in relation to

education and to teaching, the State shall respect the right of

parents to ensure such education and teaching in conformity with their

own religious and philosophical convictions."

 

This claim was contested by the Government and rejected by the

Commission.

 

84.     Lisa was taken into care and placed in the foster home, where

she has lived ever since, before her mother's religious conversion and

it does not appear from the material before the Court that the

question of Lisa's religious upbringing was ever pursued before the

domestic authorities.

 

In these circumstances, the Court concludes that the mother's

complaint is unsubstantiated.

 

D.  ALLEGED VIOLATIONS OF ARTICLE 13 (art. 13) OF THE CONVENTION

 

85.     Mrs Eriksson contended that there were also violations of

Article 13 (art. 13) of the Convention, which reads:

 

"Everyone whose rights and freedoms as set forth in [the] Convention

are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity."

 

The Government contested this claim.

 

86.     Mrs Eriksson complained in the first place of the lack of any

remedies against the restrictions on access imposed on her.

 

Having regard to its conclusion under Article 6 para. 1 (art. 6-1)

(see paragraph 82 above), the Court does not consider it necessary to

examine this aspect of the case also under Article 13 (art. 13).

 

87.     The applicant further claimed that no remedy was available to

her in respect of the alleged breach of Article 2 of Protocol No. 1

(P2-1).

 

In the circumstances of the case (see paragraph 84 above), she cannot

be said to have an arguable claim on this point for the purposes of

Article 13 (art. 13), which provision has therefore not been violated.

 

III.    THE DAUGHTER'S COMPLAINTS

 

88.     Mrs Eriksson, acting as her daughter's legal guardian and

natural parent, also alleged that Lisa had been the victim of the same

violations as she claimed that she herself had suffered.

 

The Government questioned whether Mrs Eriksson could properly

represent her daughter, in view of their conflicting interests.

However, they have raised no formal objection and the Court does not

consider that this point is one which prevents it from examining the

complaints put forward on Lisa's behalf.

 

A.  ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION

 

89.     The factual and legal situation concerning the possibilities

for the applicants to meet and develop their relationship with a view

to being reunited constitutes an interference with Lisa's right to

respect for family life as well as with the mother's and, for the

reasons given in paragraphs 65 and 71 above, in particular the

uncertainty regarding Lisa's future, there has been a violation of

Article 8 (art. 8) also in respect of her.

 

B.  ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION

 

90.     In its report, the Commission found that the daughter could

not be considered to be a victim of the alleged violations of

Article 6 para. 1 (art. 6-1).  Before the Court, neither the Government

nor the Delegate of the Commission dealt with these issues.

 

91.     In the proceedings relating to the prohibition on removal (see

paragraphs 74-79 above), Lisa was never formally a party.  The Court

does not find it necessary to decide whether Article 6 para. 1 (art. 6-1)

is applicable also to the complaints put forward on her behalf

concerning these proceedings: it has found above (see paragraphs 75,

77 and 79) that their conduct did not violate this Article

(art. 6-1) with regard to the mother and there is nothing before the

Court that could warrant a different conclusion in respect of the

daughter.

 

92.     As regards the lack of any court remedy to challenge the

decisions concerning access, Article 6 para. 1 (art. 6-1) applies in the

present case to the daughter in the same way as it applies to the

mother (see paragraph 73 above).

 

For the same reasons as set forth in paragraphs 80-81 above, there has

accordingly been a violation of this Article (art. 6-1) on this point

in the case of the daughter too.

 

C.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2), TAKEN ALONE OR

TOGETHER WITH ARTICLE 13 OF THE CONVENTION (art. 13+P1-2)

 

93.     The complaint under Article 2 of Protocol No. 1 (P1-2)

is based only on its second sentence, which guarantees a right of

parents, and not on the first, which states that "no person shall be

denied the right to education".  Lisa therefore cannot claim to be the

victim of the alleged violation of Article 2 (P1-2), taken alone

or together with Article 13 (art. 13+P1-2) of the Convention.

 

D.  ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH

ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 13+6-1)

 

94.     Having regard to its conclusion regarding Article 6 para. 1

(art. 6-1) (see paragraph 92 above), the Court does not consider it

necessary to examine under Article 13 (art. 13) the complaint

regarding the lack of any court remedy in respect of the restrictions

on access.

 

IV.     APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

 

95.     Under Article 50 (art. 50) of the Convention,

 

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

 

A.  Damage

 

96.     The applicants sought under this provision 5,000,000 Swedish

Crowns (SEK) each for non-pecuniary damage, which claim both the

Government and the delegate of the Commission considered excessive.

 

97.     There can be no doubt, in the Court's view, that both

applicants have for a long time suffered substantial anxiety and

distress as a result of the violations found in the present case.  In

addition, the mother has been exposed to much embarrassment and has

had to devote much time and effort to trying to bring about such

conditions regarding her contacts with her daughter as would be likely

to promote the aim of reuniting them.

 

98.     These various factors do not readily lend themselves to

precise quantification.  Making an assessment on an equitable basis,

as is required by Article 50 (art. 50), the Court awards Mrs Eriksson

200,000 SEK and her daughter Lisa 100,000 SEK for non-pecuniary

damage.

 

B.  Legal fees and expenses

 

99.     Mrs Eriksson also claimed 270,000 SEK for 300 hours' work

performed by the lawyer, Mrs Westerberg, in the proceedings before the

Commission and the Court.

 

The Government questioned whether all the 300 hours' work had really

been necessary, especially since Mrs Westerberg was well acquainted

with the case as a result of the domestic proceedings.  With regard to

the hourly rate charged, they accepted as reasonable only 700 SEK, as

against 900 SEK claimed.  The Delegate of the Commission made no

comments.

 

100.    Taking into account the relevant legal aid payments made by

the Council of Europe and making an assessment on an equitable basis,

the Court considers that Mrs Eriksson is entitled to be reimbursed,

for legal fees and expenses, the sum of 100,000 SEK.

 

FOR THESE REASONS, THE COURT

 

1.  Holds unanimously that there have been violations of Article 8

(art. 8) of the Convention as regards both applicants;

 

2.  Holds unanimously that there has been a violation of Article 6 para. 1

(art. 6-1) as regards Cecilia Eriksson, in that no court remedy was

available to challenge the restrictions on access;

 

3.  Holds by fifteen votes to five that, on the last-mentioned point,

there has been a violation of Article 6 para. 1 (art. 6-1) as regards

Lisa Eriksson also;

 

4.  Holds unanimously that, as regards both applicants, it is not

necessary to examine this same point also under Article 13 (art. 13)

of the Convention;

 

5.  Holds unanimously that there have been no other violations of

Article 6 para. 1 (art. 6-1);

 

6.  Holds unanimously that there has been no violation of Cecilia

Eriksson's rights under Article 2 of Protocol No. 1 (P1-2),

taken alone or together with Article 13 (art. 13+P1-2) of the Convention;

 

7.  Holds unanimously that Lisa Eriksson cannot claim to be a victim

of the alleged violation of Article 2 of Protocol No. 1 (P1-2), taken

alone or together with Article 13 (art. 13+P1-2) of the Convention;

 

8.  Holds unanimously that Sweden is to pay, for non-pecuniary damage,

200,000 (two hundred thousand) Swedish Crowns to Cecilia Eriksson and

100,000 (one hundred thousand) Swedish Crowns to her daughter Lisa

and, for legal costs and expenses, 100,000 (one hundred thousand)

Swedish Crowns to Cecilia Eriksson;

 

9.  Rejects unanimously the remainder of the claim for just

satisfaction.

 

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 22 June 1989.

 

Signed: Rolv RYSSDAL

        President

 

Signed: Marc-André EISSEN

        Registrar

 

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and

Rule 52 para. 2 of the Rules of Court, the following separate opinions are

annexed to this judgment:

 

(a) partly dissenting opinion of Mr Thór Vilhjálmsson,

Mrs Bindschedler-Robert, Mr Matscher, Mrs Palm and Mr Foighel;

 

(b) concurring opinion of Mrs Bindschedler-Robert,

Mr Pinheiro Farinha, Mr Pettiti, Sir Vincent Evans, Mr Macdonald,

Mr Carrillo Salcedo and Mr Valticos.

 

Initialled: R.R.

 

Initialled: M-A.E.

 

PARTLY DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON,

BINDSCHEDLER-ROBERT, MATSCHER, PALM AND FOIGHEL

 

Whilst we agree with the Court that there has been a violation of

Article 6 (art. 6) as regards Mrs Eriksson, we cannot agree with the

Court's conclusion on this point in respect of the daughter.

 

Lisa has not, herself, shown any interest whatsoever in reuniting with

her mother.  She has lived with her foster family almost since she was

born and she wants to stay with them.  Equally she has never sought to

have a review of the restrictions on access imposed in the present

case.  Even if Lisa, because of her young age, has not been able to

take any legal action herself, she would certainly have been able to

put to the social authorities, with which she had close contacts, any

requests she might have had.  Indeed there is nothing in the material

before the Court that shows anything else than that Lisa, however

reluctantly, agreed to see her mother but did not wish to have closer

contacts.

 

In these circumstances, it is not in our view established that Lisa

has suffered any detriment as a result of the lack of any court

remedy.  As she was thus not actually affected by the impugned

deficiency of the Swedish system, she cannot be considered a victim of

the violation of Article 6 (art. 6) alleged on her behalf (see, mutatis

mutandis, the Norris judgment of 26 October 1988, Series A no. 142,

pp. 15-16, paras. 30 and 33).

 

The reasoning above can to a certain degree be applied to argue for a

non-violation of Article 8 (art. 8).  But there is a clear distinction

between the two situations.  The opportunity for Lisa to be reunited

with her mother was undoubtedly taken away from her.  Thus there was

an interference with the respect due to her family life and a

violation of Article 8 (art. 8).

 

CONCURRING OPINION OF JUDGES BINDSCHEDLER-ROBERT, PINHEIRO FARINHA,

PETTITI, SIR VINCENT EVANS, MACDONALD, CARRILLO SALCEDO AND VALTICOS

 

The Court has noted in paragraph 91 of its judgment that Lisa Eriksson

was never formally a party to the proceedings relating to the

prohibition on removal.  Nevertheless her interests were directly

affected by those proceedings and could not be assumed to be

consistent with those of any of the other parties involved.  This is a

consideration relevant to the fairness of the proceedings on the part

of Lisa.  It appears that under Swedish law a special guardian could

have been appointed to protect her separate interests (see

paragraph 44 of the Court's judgment).  There is no evidence that this

procedure was followed in the present case.  No complaint in this

respect has been made on her behalf before the Court.  In our opinion,

however, the appointment of a special guardian would appear to have

been an appropriate and desirable step in the circumstances of the

case.