European Court of Human Rights



        In the case of Olsson v. Sweden (no. 2)*,

 

        The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court, as a Chamber composed of

the following judges:

 

        Mr  R. Ryssdal, President,

        Mr  F. Matscher,

        Mr  L.-E. Pettiti,

        Mr  B. Walsh,

        Mr  C. Russo,

        Mr  S.K. Martens,

        Mrs E. Palm,

        Mr  A.N. Loizou,

        Mr  A.B. Baka,

 

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

Registrar,

 

        Having deliberated in private on 24 April and

30 October 1992,

 

        Delivers the following judgment, which was adopted on the

last-mentioned date:

 

_______________

Notes by the Registrar

 

* The case is numbered 74/1991/326/398.  The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number).  The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating

applications to the Commission.

 

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

 

PROCEDURE

 

1.      The case was referred to the Court on 20 August 1991 by the

Government of the Kingdom of Sweden ("the Government"), within the

three-month period laid down in Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention.  It originated in an

application (no. 13441/87) against Sweden lodged with the European

Commission of Human Rights ("the Commission") under Article 25

(art. 25) by two Swedish citizens, Mr Stig and Mrs Gun Olsson,

on 23 October 1987.

 

        The object of the application was to obtain a decision as to

whether or not the facts of the case disclosed a breach by the

respondent State of its obligations under Article 8 (art. 8) of the

Convention.

 

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 and designated the

lawyer who would represent them (Rule 30).

 

3.      The Chamber 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 28 September 1991 the President

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

seven other members, namely Mr F. Matscher, Mr L.-E. Pettiti,

Mr B. Walsh, Mr C. Russo, Mr S.K. Martens, Mr A.N. Loizou and

Mr A.B. Baka (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) and, through the Registrar, consulted the Agent of

the Government, the Delegate of the Commission and the

representative of the applicants on the organisation of the

procedure (Rules 37 para. 1 and 38).

 

        In accordance with the orders made in consequence the

registry received, on 23 January 1992, the applicants' memorial and,

on 6 February, the Government's.  On 6 April the Secretary to the

Commission informed the Registrar that the Delegate would submit his

observations at the hearing.

 

        On 7 and 27 April the Commission filed a number of documents

which the Registrar had sought from it on the President's

instructions.  These included some, but not all, of the documents

requested by the applicants.

 

5.      A number of documents were filed by the applicants and by

the Government on various dates between 3 February and

15 April 1992.

 

6.      As further directed by the President, the hearing took place

in public in the Human Rights Building, Strasbourg, on

22 April 1992.  The Court had held a preparatory meeting beforehand.

 

        There appeared before the Court:

 

(a) for the Government

 

    Mr C.H. Ehrenkrona, Legal Adviser,

       Ministry for Foreign Affairs,                    Agent,

    Mrs I. Stenkula, Legal Adviser,

       Ministry of Health and Social Affairs,

    Mrs B. Larson, Former Chief District Officer,

       Social Services in Gothenburg,                   Advisers;

 

(b) for the Commission

 

    Mr Gaukur Jörundsson,                               Delegate;

 

(c) for the applicants

 

    Mrs S. Westerberg, lawyer,                          Counsel,

    Mrs B. Hellwig,                                     Adviser.

 

        The Court heard addresses by Mr Ehrenkrona for the

Government, by Mr Gaukur Jörundsson for the Commission and by

Mrs Westerberg for the applicants, as well as replies to questions

put by the Court and by its President.

 

AS TO THE FACTS

 

I.      PARTICULAR CIRCUMSTANCES OF THE CASE

 

    A.  Introduction

 

7.      The applicants, Mr Stig and Mrs Gun Olsson, who are husband

and wife, are Swedish citizens and live at Angered, near Gothenburg

in Sweden.  There were three children of the marriage, namely

Stefan, Helena and Thomas, born in June 1971, December 1976 and

January 1979, respectively.

 

8.      The present proceedings, which concern mainly Helena and

Thomas, are a sequel to the case which the Court decided in its

judgment of 24 March 1988, Series A no. 130 (hereinafter referred to

as "Olsson I").  That case concerned the period from

16 September 1980, when the applicants' three children were taken

into public care, to 18 June 1987, when the public care of Helena

and Thomas was terminated (see paragraph 10 below).  The main issue

in that case was whether the decision to take the children into

care, the manner in which it had been implemented and the refusals

to terminate the care had given rise to violations of Article 8

(art. 8) of the Convention.  In the context of the case now under

review it is of importance to note that with regard to this issue

the Court held that "the implementation of the care decision, but

not that decision itself or its maintenance in force, gave rise to a

breach of Article 8 (art. 8)" (Olsson I, p. 38, para. 84).

 

        For the background to this case the Court refers in the

first place to Part I of Olsson I (pp. 9-19, paras. 8-32).

 

    B.  Proceedings relating to the applicants' requests for

        termination of the public care order

 

9.      A first request by the applicants for termination of the

public care order was dismissed by the Social District Council no. 6

in Gothenburg ("the Social Council") on 1 June 1982.  The dismissal

was upheld by the County Administrative Court (länsrätten) on

17 November and by the Administrative Court of Appeal (kammarrätten)

in Gothenburg on 28 December 1982.  The applicants applied

unsuccessfully for leave to appeal to the Supreme Administrative

Court (regeringsrätten).

 

        A fresh request, submitted to the Social Council in the

autumn of 1983, was, according to the Government, rejected on

6 December 1983.  Apparently, no appeal was lodged against this

decision.

 

10.     A further request by the applicants for termination of the

public care, apparently lodged on 16 August 1984, was rejected by

the Social Council on 30 October 1984 as far as concerns Helena and

Thomas and, after further investigations, on 17 September 1985 as

regards Stefan. Appeals by the parents against these decisions were

dismissed by the County Administrative Court on 3 October 1985 and

3 February 1986, respectively, after it had obtained expert opinions

from Chief Doctors Per H. Jonsson and George Finney and from a

psychologist, Mr Göran Löthman, on 22 and 30 August 1985 and held a

hearing on 20 September 1985 in the former case.

 

        The applicants thereupon appealed to the Administrative

Court of Appeal in Gothenburg, which joined the two cases.  On

12 February 1986 the court decided to request an opinion from the

County Administrative Board (länsstyrelsen), which it received on

15 April 1986.  A hearing was scheduled for 21 August 1986 but was

postponed until 4 February 1987. After the hearing, at which the

applicants gave evidence, the court, by judgment of

16 February 1987, directed that the public care of Stefan be

terminated and dismissed the appeal in so far as it concerned Helena

and Thomas.

 

        Following an appeal by the parents, the Supreme

Administrative Court, by judgment of 18 June 1987, directed that the

public care of Helena and Thomas should terminate, there being no

sufficiently serious circumstances to warrant its continuation.

 

    C.  Prohibition on removal and related proceedings

 

        1.      Decision to prohibit removal and refusal to suspend

                its implementation

 

11.     In the above-mentioned proceedings, the Supreme

Administrative Court pointed out that the question to be determined

in deciding whether care should be discontinued pursuant to

section 5 of the 1980 Act (see the above-mentioned Olsson I

judgment, pp. 25-26, para. 49) was whether there was still a need

for care.  The problems associated with the removal of a child from

a foster home and its possible detrimental effects on him and with

his reunion with his natural parents were matters to be considered

not under section 5 but in separate proceedings, namely an

examination under section 28 of the Social Services Act 1980

(socialtjänstlagen 1980: 620; see paragraph 57 below).

 

12.     On 23 June 1987 the Social Council prohibited, pursuant to

section 28 of the Social Services Act, the applicants from removing

Helena and Thomas from their respective foster homes.  This decision

referred, inter alia, to the two reports by Chief Doctors Jonsson

and Finney (see paragraph 10 above).  The latter report noted that

Thomas was no longer depressive but still had traits of a childhood

disturbance, in the form of delayed development and anguish in

unfamiliar situations.

 

        The Social Council's decision took account of the fact that

Helena and Thomas had not been under the care of the applicants for

a long time, that the contacts between the parents and the children

had been very sparse and that the children had become emotionally

attached to their respective foster families and environment.

Regard was also had to the fact that Thomas was showing signs of

greater stability, that Helena had expressed a wish not to move and

that increased demands had been placed upon the natural parents by

reason of Stefan's return to their home.  There was a risk, which

was not of a minor nature, that if Helena and Thomas were to be

removed from their foster homes, their physical and mental health

would thereby be harmed.

 

13.     On 25 June 1987 the County Administrative Court rejected a

request by the applicants for suspension (inhibition) of the

prohibition order.  That decision was confirmed by the

Administrative Court of Appeal on 2 July 1987 and, on 17 August, the

Supreme Administrative Court refused leave to appeal.

 

        2.      First set of proceedings challenging the prohibition

                on removal

 

14.     In the meantime, shortly after the decision of 23 June 1987

to prohibit removal, the applicants had appealed against it to the

County Administrative Court.  The court sought expert opinions from

Chief Doctors Jonsson and Finney.  According to these opinions,

dated 14 July and 3 September 1987, the prohibition was in Helena's

and Thomas's best interests because:

 

(a)     Helena had shown signs of anxiety at the prospect of being

        forced to return to her biological parents.  For instance,

        on learning about the lifting of the public care order, she

        had gone into hiding for two days; moreover, together with

        Thomas, she had worked out escape plans in the event of a

        return.  Whilst deriving a feeling of support from her

        foster parents and friends, she felt extremely uncertain,

        critical and hesitant about her natural parents.  Although

        the latter had demanded her return, they had not, in her

        view, indicated a willingness to form a relationship with

        her and this confused her.  Removing Helena from her foster

        home against her own wishes would entail a substantial risk

        to her mental well-being and also to her physical health if,

        in desperation, she were to carry out her plan of escaping

        from the applicants' home;

 

(b)     Thomas had suffered from certain childhood disturbances and

        had a retarded development.  It was especially on the

        emotional plane that he was handicapped; he was very

        dependent upon his foster mother and was in a fragile phase

        of his development.  To remove Thomas would have devastating

        effects on his mental development, both emotionally and

        intellectually.

 

        Further, the psychologist Löthman, also considered, in an

opinion supplied to the court on 3 September 1987, that remaining in

the foster home was in Thomas's best interests.  Mr Löthman observed

that Thomas had developed in a positive manner, although he

continued to be psychologically vulnerable and to have great

emotional needs.  His attachment to the foster family had clearly

been strong and positive; he had dismissed the idea, which gave rise

to fear and anxiety on his part, of returning to his natural

parents.  In that event he intended to escape.

 

        Both the Social Council and the guardian ad litem, Mr Åberg,

recommended that the appeal be rejected.  The applicants did not ask

for a hearing and the court did not hold one.  By judgment of

3 November 1987, it dismissed the appeal.

 

15.     The applicants appealed to the Administrative Court of

Appeal, asking it to revoke the prohibition on removal or, in the

alternative, to limit the measure in time, at the most until

6 January 1988.  Again they did not ask for a hearing; the Social

Council and the guardian ad litem recommended that the appeal be

dismissed.  The court examined the case on the basis of the

case-file and, by judgment of 30 December 1987, rejected the appeal.

 

16.     The applicants then proceeded with an appeal to the Supreme

Administrative Court, reiterating their request for revocation of

the prohibition on removal or, in the alternative, for limitation of

the measure in time, until 15 March 1988.  On this occasion they

asked for an oral hearing.

 

        Leave to appeal was granted on 4 February 1988.  On the same

date the court requested the National Board of Health and Welfare

(socialstyrelsen - "the Board") and the Social Council to submit

their opinions on the case, which they did on 22 and 23 March 1988,

respectively.

 

        Both opinions stressed the necessity of prohibiting removal

of the children.  The Social Council intended, should the appeal be

dismissed,  to ask for the custody of the children to be transferred

to their respective foster parents.

 

        The Board, for its part, pointed out that, having regard to

the long duration of the placement of the children in foster homes

and to the limited contacts they had had, further contacts must be

arranged under such conditions as would make the children feel

secure and would recognise their attachment to and feelings of

security in the foster homes.  Referring to the child psychiatrists'

and the psychologist's reports, the Board made mainly the same

observations as those mentioned above (see paragraphs 12 and 14).

It further noted, with regard to Thomas, that whilst it would take

time for a child of his character to build up confidence in adults,

his foster mother had succeeded in creating an environment in which

he could feel confident.  With regard to Helena, the Board also

stated that she had reached a phase of puberty and emancipation, the

normal course of which might be disturbed if she were forced to

leave the foster home.

 

        The Board further stressed that the relationship between the

natural parents and the children was of decisive importance for the

question of removal where, as in this case, the children had been

placed in foster homes for long periods of time.  In order to bring

about a good relationship, co-operation between - on the one hand -

the applicants and - on the other hand - the social welfare

authorities and the foster parents was essential.  It appeared from

the case-file that the applicants' lawyer had not sought to achieve

such co-operation, which was unfortunate for the children.  It had

had the consequence that no such relationship had been established

between the children and their parents as would make it possible for

the children to move to their parents without there being a serious

risk of harm to the children.  The Board recommended that the Social

Council examine the possibility of having the custody of the

children transferred to the foster parents.

 

17.     The Supreme Administrative Court rejected the applicants'

request for a hearing.  With regard to the merits, in a judgment of

30 May 1988 it dismissed their claim for revocation of the

prohibition on removal; it accepted, on the other hand, that the

measure should be limited in time and modified the decision under

appeal in such a way that the prohibition was to run until

30 June 1989.  The judgment contained the following reasons:

 

        "When section 28 ... is applied to this case a balance must

        be struck between, on the one hand, respect for the

        [applicants'] and their children's private and family life,

        including the [applicants'] rights as guardians according to

        the Parental Code, and, on the other hand, the need to

        safeguard the children's health (see the third paragraph of

        section 2 of Chapter 1 of the Instrument of Government

        [regeringsformen] and sections 1 and 12 of the Social

        Services Act; through these provisions the protection of

        private and family life referred to in Article 8 (art. 8)

        of the Convention ... can be ensured) ...

 

        ... When [public] care is terminated according to section 5

        of the 1980 Act reunion should normally take place as soon

        as possible [and] ... needs to be prepared in an active and

        competent manner.  Appropriate preparations should be made

        immediately after the care has been terminated.  This should

        be done even if a prohibition under section 28 ... has been

        issued ... . The character and the extent of the

        preparations, as well as the time required for them, depend

        on the circumstances in each case; one or more suitably

        arranged and successful visits by the children to their

        parents' home must always be required. The need for a

        prohibition on removal of a more permanent nature can

        normally only be assessed after appropriate preparations

        have been made.  It is the Social Council's responsibility

        to arrange the ... preparations for reuniting parents and

        children after the care has been terminated ... [This]

        responsibility includes an obligation to try persistently to

        make the parents and their lawyer participate, actively and

        in the children's best interests, in the preparations.  The

        Social Council is not discharged from its responsibility by

        the mere fact that [they], by appealing against the

        Council's decisions or in other ways, show that they dislike

        measures taken by the Council or its staff.  According to

        section 68 of the Social Services Act, the County

        Administrative Board should assist the Council with advice

        and ensure that the Council performs its tasks properly.

 

        Pending the beginning and completion of appropriate

        preparations for reunion of parents and children the

        question of a more temporary prohibition on removal under

        section 28 ... may also arise.  Such a prohibition should be

        seen as a temporary measure until the child can be separated

        from the foster home without any risk of harm as mentioned

        in that provision.

 

        ...

 

        It appears from the examination of the present case that no

        appropriate preparations have been made to reunite the

        parents and the children.  Instead, the time which has

        elapsed since the Supreme Administrative Court decided to

        terminate the public care seems to have been spent on

        litigation.

 

        The issue whether a prohibition on removal under section 28

        ... is needed in this case must therefore be examined

        without taking account of the effect of preparations that

        have been made.  The Supreme Administrative Court's decision

        should thus concern the kind of temporary prohibition on

        removal that, according to what has been stated above, can

        be issued pending more appropriate preparatory measures.

 

        From the examination - above all the opinion given by the

        Board and the medical certificates it quotes - it appears

        clearly that for the time being, before any preparations

        have been made, there is a risk which is not of a minor

        nature that Helena's and Thomas's physical and mental health

        would be harmed were they to be separated from their foster

        homes.  Accordingly, there are sufficient reasons for a

        prohibition on removal under section 28 ...

 

        As regards the duration of a prohibition on removal, the

        Supreme Administrative Court has in a previous decision (see

        Regeringsrättens Årsbok, RÅ 1984 2:78) stated inter alia the

        following: if, when the prohibition is issued, it is already

        possible to assess with sufficient certainty that there will

        be no such risk after a specific date - when some measures

        will have been taken or they will have had time to produce

        effects -, the prohibition must run only until that date.

        If, on the other hand, 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

        remain in force until further notice and the question of a

        removal ought to be raised again at a later stage, when the

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

 

        An application of this rule to the present case would mean

        that a prohibition on removal should remain in force until

        further notice.  However, the circumstances of this case are

        different from those of the previous case, as no appropriate

        preparations have been made to reunite the parents and the

        children, owing to the serious conflict between the Social

        Council, on the one hand, and the parents and their lawyer,

        on the other.  Furthermore it must be presumed in this case

        that only a fixed time-limit might induce the parties

        - without any further litigation - to co-operate in taking

        appropriate preparatory steps in the children's interest.

        If, within a certain time-limit, no such preparations have

        been made or their result is unacceptable, the Social

        Council may raise the question of a prolonged prohibition

        based on the circumstances pertaining at that time.

 

        Having regard to the foregoing, the Supreme Administrative

        Court finds that the prohibition on removal should remain in

        force until 30 June 1989.

 

        The European Court of Human Rights has, in its judgment of

        24 March 1988, found that Sweden violated Article 8 (art. 8)

        of the Convention in one respect ... . This violation

        concerned the implementation of the care decision and, inter

        alia, the fact that the children were placed in foster homes

        situated so far away from their parents.  The issue in this

        case is another, namely when and on what conditions the

        children can be reunited with their parents in view of the

        termination of the care by the Supreme Administrative Court

        on 18 June 1987. A prohibition on removal ... is therefore

        not in conflict with the judgment of 24 March 1988."

 

        3.      Request to return the children in accordance with

                Chapter 21 of the Parental Code

 

18.     A request made by the applicants on 10 August 1987 that

Helena and Thomas be returned to them in accordance with section 7

of Chapter 21 of the Parental Code (föräldrabalken; see paragraph 71

below) had been rejected by the County Administrative Court of

Gävleborg, after a hearing on 1 March 1988, by two separate

judgments of 15 March 1988.  The court had found that there was a

not insignificant risk of harming the children's mental health by

separating them from the foster homes.

 

        In a judgment of 11 July 1988 the Administrative Court of

Appeal dismissed the applicants' appeal.  On 23 September 1988 the

Supreme Administrative Court refused them leave to appeal.

 

        4.      Appointments of a guardian ad litem

 

19.     In connection with the above proceedings concerning the

prohibition on removal, the District Court (tingsrätten) of

Gothenburg, at the Social Council's request, had appointed

Mr Claes Åberg on 17 July 1987 as guardian ad litem for Helena and

Thomas (section 2 of Chapter 18 of the Parental Code).  The

appointment had not been notified to the applicants, who had not

been heard on the matter; when their representative had learned

about it, on 4 August, the time-limit for appealing against it had

expired.

 

        The applicants had asked the District Court to dismiss the

guardian ad litem.  It had done so on 26 October, on the ground that

Mr Åberg, by having applied for legal aid on the children's behalf

to the County Administrative Court on 31 July, had accomplished the

task for which he had been appointed.

 

20.     On 27 October 1987 the Social Council had again asked the

District Court to appoint Mr Åberg as guardian ad litem.  On this

occasion the court had invited the applicants to state their views

before it took a decision.  It had granted the request on

12 February 1988.

 

        The applicants appealed to the Court of Appeal (hovrätten)

for Western Sweden, which dismissed the appeal on 23 August 1988.

On 8 November 1988 the Supreme Court (högsta domstolen) refused them

leave to appeal.

 

        5.      Second set of proceedings challenging the

                prohibition on removal

 

21.     On 28 September 1988 the applicants made a fresh request to

the Social Council to lift the prohibition on removal, invoking - as

a new circumstance - the Commission's opinion in the Eriksson v.

Sweden case (annexed to the Court's judgment of 22 June 1989,

Series A no. 156, pp. 38-55).  The request was rejected.

 

22.     In a judgment of 12 December 1988 the County Administrative

Court dismissed an appeal by the applicants against the Social

Council's decision.  The court, referring to the reasoning in the

Supreme Administrative Court's judgment of 30 May 1988 (see

paragraph 17 above), pointed out that no appropriate preparatory

measures for reunion as mentioned therein had been taken.  It

considered that there would still be a risk of harm to the children

if the prohibition on removal were lifted.

 

23.     A further appeal by the applicants to the Administrative

Court of Appeal was rejected on 22 December 1988.  It noted that

Mr Olsson had met the children on 11 and 12 October 1988 at their

respective foster homes and schools and that the children had

visited the applicants' home on 16 and 17 December, accompanied by

the foster parents.  The court found, nevertheless, for the reasons

expressed in the County Administrative Court's judgment, that the

prohibition should be maintained.

 

        Leave to appeal was refused by the Supreme Administrative

Court on 14 February 1989.

 

        6. Renewal of prohibition on removal and

           related proceedings

 

24.     On 27 June 1989, a few days before the expiry of the

prohibition on removal, the Social Council decided to renew it until

further notice.  Moreover, it refused a request by the applicants

that the children spend their summer holidays with them in Alingsås

and visit them every weekend, unaccompanied by the foster parents

(see paragraph 50 below).

 

25.     On appeal, the County Administrative Court, by judgment of

4 September 1989, confirmed the prohibition on removal but decided

that it was to run only until 31 March 1990.  The court again relied

on the reasoning in the Supreme Administrative Court's judgment of

30 May 1988 and noted, moreover, that few measures had been taken in

preparation for removal.  It was highly unsatisfactory that, as long

as two years after the termination of the public care, the

conditions for executing that decision had not been fulfilled.  The

court considered that reasons still existed for maintaining the

prohibition on removal and that, accordingly, the Swedish judiciary

and public authorities had failed in this respect.  Even though the

applicants and their lawyer had not contributed to a desirable

extent to facilitating the children's reunion with their parents,

the main responsibility for doing this lay with the Social Council,

which, as stressed by the court, also had a duty to implement

judgments.

 

26.     Both the applicants and the Social Council appealed to the

Administrative Court of Appeal; the applicants sought to have the

prohibition lifted, whereas the Social Council asked for it to be

maintained until further notice.  By judgment of 23 January 1990 the

court confirmed the lower court's decision, but extended the time-

limit for the prohibition until 1 August 1990.

 

        The applicants were refused leave to appeal by the Supreme

Administrative Court on 8 March 1990.

 

        7.      Further renewal of the prohibition on removal and

                related proceedings

 

27.     The Social Council asked the County Administrative Court, on

12 July 1990, to issue a new prohibition on removal, to be effective

until further notice.  By judgment of 27 July 1990, the court

renewed the prohibition until 28 February 1991.  It noted that no

preparatory measures with a view to reuniting the children and the

parents had been taken; such measures were necessary in view of the

atmosphere of hostility that existed between the parties to the

proceedings, which was detrimental to Helena and Thomas.  There were

therefore good reasons to maintain the prohibition on removal.  The

need for this measure was also shown by the fact that the question

of a transfer of the custody of the children to the foster parents

was scheduled for examination by the District Court in the autumn

(see paragraphs 53-54 below).

 

        The applicants lodged an appeal against this judgment with

the Administrative Court of Appeal.  They have apparently asked the

court to stay the proceedings pending the final outcome of those

concerning the transfer of custody.

 

    D.  The applicants' access to the children subsequent to the

        entry into force of the prohibition on removal

 

28.     Prior to the termination of the public care of Helena and

Thomas on 18 June 1987, the applicants' contacts with the children

had been sparse.  Access had, since February 1983, been restricted

to one visit every third month in the foster homes.  However, no

such visits occurred during the period from June 1984 until April

1987, when Mr Olsson and the elder son Stefan visited them (for

further details, see the above-mentioned Olsson I judgment,

pp. 15-16, paras. 21, 24-26).  It does not appear that any formal

decision with regard to access was taken in connection with the

decision of 23 June 1987 to prohibit the applicants from removing

Helena and Thomas from the foster homes.

 

        1.      Particulars concerning the applicants' access to

                Helena and Thomas

 

29.     Since the prohibition on removal was imposed on

23 June 1987, the following meetings have taken place between the

applicants and Helena and Thomas:

 

(a)     22 July 1988: a meeting of a few hours in a park in

        Gothenburg, the children being accompanied by one of the

        foster parents;

 

(b)     11 and 12 October 1988: visits by Mr Olsson in the foster

        homes;

 

(c)     16 and 17 December 1988: visits by the children, accompanied

        by the foster mothers, in the applicants' home, the night

        being spent in a hotel;

 

(d)     8 and 9 April 1989: visits by the applicants in the foster

        homes;

 

(e)     16 and 17 June 1989: visits by the children, accompanied by

        the foster mothers, in the applicants' home, the night being

        spent in a hotel.

 

        2. Access claims and related proceedings

 

30.     Shortly after the decision of 23 June 1987 to prohibit

removal, the applicants, through their lawyer, asked the social

welfare authorities to arrange for Helena and Thomas to visit them

in their home in Gothenburg.  By letter of 27 October 1987 from the

social welfare officer, they were advised that they should first

visit the children so that they could get to know them better and

prepare for a visit by the children in Gothenburg together with the

foster parents.  Subject to prior consultation with the foster

parents, the applicants were free to decide on the further

arrangements for visits in the foster homes.  Finally, the letter

indicated a possibility of refunding travel and subsistence expenses

incurred by the applicants in connection with their visits.

 

        Throughout the autumn of 1987, there was an exchange of

letters between the applicants' lawyer and the social welfare

authorities - mainly the Chief District Officer - on the question of

access.  Whilst the applicants insisted that the children visit them

without the foster parents, the Chief District Officer, referring to

the justifications for the prohibition on removal, maintained that

since Mrs Olsson had not met the children since 1984, both

applicants should first visit them in their respective foster home

environment.  Moreover, in the event of a visit by the children in

the applicants' home, at least one of the foster parents should be

present.

 

31.     On 18 December 1987 the Chairman of the Social Council

refused a request by the applicants to visit Helena and Thomas

without the foster parents being present.  She found no reason to

amend the Chief District Officer's decision on the matter.  On

21 December the Social Council was informed of the refusal; it

decided to take note of it but did not take any specific measures.

 

32.     The applicants appealed against the Chairman's decision to

the County Administrative Court, asking it to confer on them a right

of access as requested.  In a decision of 8 March 1988, the court

found that it was not possible to appeal, under section 73 of the

Social Services Act (see paragraph 60 below), against measures

prescribed by the Social Council as to the manner, time and place of

access and refused the appeal.

 

        On 29 April 1988 the Administrative Court of Appeal upheld

that judgment, noting that the Chairman's decision had not been

taken under section 28 of that Act and did not fall into any other

category of measures which could be appealed against pursuant to

section 73.

 

33.     The applicants then proceeded with an appeal to the Supreme

Administrative Court, alleging that the Chairman's decision of

18 December 1987 was unlawful and that the absence of a right of

appeal against it constituted a violation of Article 13 (art. 13)

of the Convention.  The court granted leave to appeal and, in a

decision (beslut) of 18 July 1988, refused the appeal.  It 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 empowering the Social Council to restrict the

        right of access while the prohibition on removal is in force

        ..., the instructions given by the Chairman 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."

 

34.     On 15 August 1988 the applicants lodged a municipal appeal

(kommunalbesvär; see paragraph 63 below) with the Administrative

Court of Appeal against the Chairman's decision of 18 December 1987.

The court found that that decision could not form the object of a

municipal appeal and that, in so far as the appeal might be

considered as directed against the Social Council's failure to take

any specific measures when informed of the decision (see

paragraph 31 above), it was out of time.  The appeal was thus

dismissed on 10 October 1988.

 

35.     In the meantime, on 21 March and 11 April 1988, the social

welfare authorities had rejected requests by the applicants' lawyer

that Helena and Thomas be allowed to attend their grandmother's

funeral and a special burial ceremony and, in this connection, stay

for one night at the applicants' home.  The social welfare

authorities had pointed, inter alia, to the fact that the children

hardly knew their grandmother and to the need to arrange contacts in

an environment in which the children could feel safe and confident.

 

36.     In June and July 1988 the social welfare officer contacted

the applicants and arranged for talks involving Mr Olsson and the

foster parents, to plan the meeting which took place in Gothenburg

on 22 July 1988 (see paragraph 29 above).  Mrs Olsson did not

participate in these preparations, as she insisted on having access

on her own terms.  However, as suggested by the social welfare

officer, Helena's foster mother was invited to the applicants' home

after a preparatory meeting.  On one occasion the officer asked

Mr Olsson for his and his wife's telephone number in order to

facilitate contacts, but he declined to give it.

 

        After the meeting on 22 July 1988, Mr Olsson told the social

welfare authorities that he had been disappointed; he had felt that

he was being watched and controlled and Helena had called her foster

mother "mummy".

 

37.     On 8 August 1988 the social welfare authorities dismissed a

request made by the applicants on 2 August that Helena and Thomas be

allowed to join them - on 5 August or at the latest on 8 August -

for the rest of the summer holidays, on the ground that meetings

should be arranged in such a way as not to jeopardise the children's

health and development.

 

38.     On 11 August 1988 the applicants' lawyer demanded that the

children be permitted to visit them every weekend and school holiday

until 30 June 1989.  At a meeting with two social welfare officers

on 17 August 1988, Mr Olsson showed understanding of the view that

such visits were not appropriate and stated that he would recommend

a "soft line" in the efforts to bring about suitable access.  On his

suggestion, the next meetings were planned to take place in the

foster homes in October.  On 18 August the Social Council rejected

the request of 11 August.

 

39.     On 19 August 1988 the applicants' lawyer reiterated the

request for access at weekends.  In reply, the social welfare

officer informed her of the discussion with Mr Olsson on 17 August

(see paragraph 38 above).  A few days later, Mr Olsson told social

welfare officers that he was dissatisfied, on account of their

attempts to delay access as much as possible.  They reminded him

that he had himself proposed that the next meeting with the children

should be in October.  The meetings were held on 11 and

12 October 1988 (see paragraph 29 above).  On this occasion the

social welfare authorities booked and paid for air tickets and hotel

rooms for two persons, but Mrs Olsson declined to go.

 

        3.      Access plan

 

40.     On 7 December 1988 the Chief District Officer recommended an

access plan to the Social Council.  The recommendation referred,

inter alia, to two expert opinions, one by Chief Doctor Jonsson and

another by Chief Doctor Finney and the psychologist, Mr Löthman,

dated 10 and 12 October 1988, dealing specifically with the question

of access.  The former noted, with respect to Helena, that it was

important to place emphasis on her own wishes, to improve her

possibilities of knowing about her natural parents and to arrange

the access in a manner which would make it an everyday event; she

should meet the applicants together with the foster parents.  The

latter opinion stressed, with regard to Thomas, that access should

be resumed only if he so wished to which end certain preparatory

measures aimed at motivating him should be made - and only if

meetings were attended by the foster parents.  It was essential that

the natural parents and the foster parents co-operate in the child's

best interests.

 

        The plan envisaged access as follows:

 

(a)     on 16 and 17 December 1988: visit by the children,

accompanied by the foster mothers, in the applicants' home; if this

was successful:

 

(b)     visit by the applicants in the foster homes over two days in

February 1989; if this went well:

 

(c)     visit by the applicants to Thomas in his foster home and to

Helena, if she so wishes, in April 1989; again, if this went well:

 

(d)     visit similar to that mentioned at (a), to be organised over

a few days in June 1989 with a possibility of letting the children

choose to spend the night at the applicants' home rather than at a

hotel, provided that the foster mother accompany them;

 

(e)     in addition to the above, the applicants should be able to

arrange visits by agreement with the foster parents.

 

41.     The applicants met Helena and Thomas as envisaged at (a)

and, on 20 December 1988, the Social Council adopted the plan.  It

was communicated to the applicants and their lawyer for comments,

but they objected to it.

 

        4. Further access claims

 

42.     During 1989 and 1990 the applicants, through their lawyer,

continued to make a large number of requests for access; in

particular, they demanded that the children visit them during

weekends at their own home and without the foster parents being

present.

 

        Several of these requests were refused by the social welfare

authorities for such reasons as the children being opposed to

visiting the parents and wishing to be visited by them instead

(letters of 27 September 1989 and 7 February 1990) or too short

notice having been given to organise the visits (letters of 28 March

and 13 September 1989) or indications by Mr Olsson that he would

give the children a certain period to reflect on the matter during

which he would not claim access (letter of 11 October 1989).

 

        Moreover, the social welfare authorities dismissed on

21 April and 26 May 1989 requests that Helena and Thomas attend the

birthday celebrations of their grandfather and their brother Stefan.

In the former case, regard was had to the fact that Helena did not

wish to go and, in the latter case, to the fact that the date in

question was inconvenient, being the last day of the school year.

 

        Furthermore, on 21 March 1989 the Social Council refused

access for the purposes of a medical examination, which the

applicants had requested in order to obtain a medical certificate to

be used in the proceedings before the Commission.  The decision was

based on an opinion by the Board that further examination of the

children might be harmful to them and would be of no assistance in

those proceedings.

 

43.     In a report of 30 May 1989 to the social welfare

authorities, Chief Doctor Finney recommended that access should

continue to some extent between the applicants and Thomas and should

be arranged in his foster home, not in the applicants' home.  A

similar view was expressed by the psychologist, Mr Löthman, in his

report of the same date.  According to a report of 13 June supplied

by Chief Doctor Jonsson to the social authorities, Helena found that

travelling to the applicants' home was a trying experience and

preferred being visited by them.  In his view, contacts served to

fulfil her need to be kept informed about the applicants.

 

        The Chief District Officer, in a report of 15 June 1989,

made the following assessment of the question of access.  Having

regard to the fact that visits by the children in the applicants'

home would not only conflict with expert opinions but were also not

welcomed by the children, access arrangements should primarily

consist of the parents visiting the children in the foster homes.

However, should the children express an interest in visiting the

applicants, the social welfare authorities would assist in arranging

such contacts.  In the light of these considerations, the Chief

District Officer adopted a plan for visits by the parents in August

and October 1989 and then by the children in December 1989.  The

applicants were invited to contact the social welfare authorities on

the matter, but did not do so.  The reason for this, as later

explained by Mr Olsson, was that on a previous occasion he had not

been received properly by the social welfare officer responsible for

their case.

 

44.     By letter of 16 November 1989, the applicants again asked

for the children to be allowed to visit them every weekend; they

also sought permission, firstly, for themselves and their son Stefan

to visit the children in one of the foster homes without the foster

parents being present and, secondly, for their lawyer to meet Helena

and Thomas to inform them of the applicants' and Stefan's situation

and to explain to them why they had been taken into public care and

why the applicants did not wish to visit them in the foster homes in

the foster parents' presence.

 

        The Head of the Social Service (socialförvaltningen) in

Gothenburg replied by letter of 20 November 1989 that the social

welfare officer would contact them as soon as possible with a view

to making a suitable arrangement for their next meeting with the

children.

 

45.     On 21 November 1989 the social welfare authorities received

a letter from the applicants' lawyer reiterating the claims of

16 November.  A further letter was received on 22 December,

requesting access to the children in one of the foster homes in the

absence of the foster parents.  In reply to the latter, the social

welfare authorities informed the lawyer on 27 December that they

would contact the foster parents directly on the matter.

 

46.     On 21 December 1989 the applicants had reported the officer

in charge of their case to the Public Prosecution Authority

(åklagarmyndigheten) of Gothenburg for misuse of power and asked for

her immediate arrest.  The reason for this action was her failure to

comply with their request of 16 November 1989.  On 30 January 1990

the Public Prosecution Authority discontinued the criminal

investigation, finding no indication that a criminal offence had

been committed.

 

47.     In a letter dated 25 January 1990, the social welfare

authorities invited the applicants to talks in order to find a

solution to the problem of access but, by letter received on

1 February from the applicants' lawyer, they were advised that such

talks would serve no purpose.

 

48.     In response to letters from the applicants' lawyer, dated

13 February and 2 March 1990 and mainly reiterating their requests

made in November and December 1989, the social welfare authorities,

by letter of 8 March, pointed out that they were not opposed to

meetings; they invited the applicants to contact the foster parents

to make arrangements, failing which the applicants would be

contacted by the latter.

 

49.     On 14 May 1990 the applicants' lawyer demanded that the

children be left to be met by the parents at Gothenburg airport on

certain specified dates and, on 5 June, she requested that this be

arranged every weekend.  In the meantime, on 17 May, the social

welfare authorities had replied that Thomas's foster mother would

write to them and had also asked the applicants to contact the

foster parents by telephone, as the former had a secret telephone

number.  On 6 June the lawyer asked the Social Council to grant

- immediately after 1 July (the date of the entry into force of the

1990 Act; see paragraphs 64 and 67 below) - access every weekend at

the applicants' own home and in the absence of the foster parents.

 

        In this connection, the Chief District Officer submitted to

the Social Council a report, dated 2 July 1990, making observations

similar to those in her report of 15 June 1989 (see paragraph 43

above) and recommending that the request be dismissed.  The report

noted, inter alia, that since the meeting in June 1989, the children

had become strongly opposed to visiting their parents but were open

to being visited by them.  The applicants' demands as to the forms

of access had had the effect of increasing the gap between them and

the children.

 

        On 4 September 1990 the Social Council dismissed the

applicants' request for access every weekend at their own home,

finding that access should instead take place in the foster homes in

conformity with the children's wishes.

 

        5.      Further proceedings concerning access

 

50.     The applicants' lawyer, in her capacity as a member of the

municipality of Gothenburg, filed two municipal appeals (see

paragraph 63 below) with the Administrative Court of Appeal: one was

against the Social Council's decision of 27 June 1989 (see

paragraph 24 above) in so far as it concerned access and the other

against its decision of 20 December 1988 adopting an access plan

(see paragraphs 40-41 above).

 

        With regard to the first appeal, the court found, by

judgment of 8 January 1990, that the contested part of the Social

Council's decision of 27 June 1989 was unlawful and annulled it.

 

        As to the second appeal, the court held, in another judgment

of the same date, that the adoption of the plan formed part of the

measures considered necessary by the Social Council in order to

permit removal of the children without there being any risk of harm

to them.  The plan was not a formal decision on the applicants'

right of access, especially since it provided that they could visit

the children in accordance with the latter's wishes.

 

        On 8 March and 27 December 1990, respectively, the Supreme

Administrative Court refused the applicants' lawyer leave to appeal

against the second judgment and the Social Council leave to appeal

against the first.

 

51.     Moreover, on 28 July 1989 the applicants complained to the

Parliamentary Ombudsman (justitieombudsmannen) who, in an opinion of

2 May 1990, stated, inter alia, that it appeared from the

examination of the case that the Social Council had acted solely out

of consideration for the children.  In view of this fact and of the

lacunae in the Social Services Act 1980 on the question of

regulation of access (see paragraph 62 below) - which had led to

legislative amendments in 1990 (see paragraphs 64 and 67 below) -,

she declared the matter closed.

 

52.     The applicants also lodged an appeal with the County

Administrative Court against the Social Council's decision of

4 September 1990 (see paragraph 49 above).  It was dismissed by

judgment of 12 December 1990.  The court found that the applicants'

allegation that the foster parents had influenced the children

against their natural parents was not borne out by the

investigations in the case; on the contrary, they showed that the

children wished to meet their parents, albeit on their terms.

Moreover, the sort of access requested did not take the children's

interests into account and would not benefit them.  There was

therefore no ground for allowing access during weekends, as

requested by the applicants.  The court did not examine their claim

for access during school holidays as this had not been dealt with by

the Social Council.

 

        The applicants further appealed to the Administrative Court

of Appeal.  They appear to have asked the court to keep their appeal

in abeyance pending the outcome of the transfer of custody

proceedings (see paragraphs 53-54 below).

 

        E.      Transfer of custody

 

53.     Although the present judgment is not concerned with the

question of transfer of custody, the decisions by the Swedish

authorities on the matter are described below in so far as they may

shed light on the case.

 

        The Social Council decided on 31 October 1989 to institute

proceedings in the District Court of Alingsås for a transfer of the

custody of Helena and Thomas to their respective foster parents.

After holding a preliminary hearing on 27 February 1990, the court,

by judgment of 24 January 1991, transferred the custody.  It ordered

that the applicants should each year receive three day-time visits

from the children at their home and be able to visit them at the

foster homes for three weekends.

 

54.     The applicants appealed against the District Court's

judgment to the Court of Appeal for Western Sweden.  The latter held

a hearing at which it took evidence from two welfare officers who

had been responsible for the case, the children's respective foster

parents, Chief Doctors Jonsson and Finney, as well as Helena and a

contact person (kontaktman) of hers within the social services.  The

applicants maintained, inter alia, that the foster parents were

unsuited as custodians.  In particular, they contended that they had

learned after the District Court judgment that Helena's foster

father, Mr Larsson, had been charged in 1986-87 with assault,

including sexual assault, and sexual exploitation of a minor, namely

another foster girl called "Birgitta".  Mr Larsson had been

acquitted by Hudiksvall District Court due to lack of evidence.

However, he had stated during the police investigations that he had

acted in a manner which, according to the applicants, constituted

sexual assault, although it had not been covered by the charges.

The public prosecutor had appealed against the acquittal but had

subsequently withdrawn the appeal.

 

        By judgment of 24 January 1992, the Court of Appeal upheld

the Alingsås District Court's judgment.  It stated, inter alia,

that, having regard to Helena's and Thomas's age and degree of

maturity, great importance should be attached to their views about

the questions of custody and access.  It was clear that they both

wanted to remain in their foster homes.  Moreover, contacts between

the applicants and the children had been very infrequent, especially

in recent years.  According to the applicants, they had been

prevented from exercising their right of access partly because they

had previously felt unwelcome and been badly treated by the foster

parents, and partly because the social welfare authorities had been

opposed to providing financial assistance for journeys to meet the

children.  However, these allegations were refuted by the social

welfare officers and the foster parents.  In the view of the Court

of Appeal, the absence of contacts was due rather to lack of desire

and initiative on the part of the applicants to visit the children.

In addition, the applicants had kept their telephone number secret.

 

        The claim that the foster parents were unsuited as

custodians was mainly directed against Helena's foster father,

Mr Larsson.  The court found that when giving evidence before it, he

had left an impression of reliability and honesty, despite the fact

that he must have been under pressure due to his wife's illness and

the manner in which he was questioned by the applicants' lawyer.

Further, the court observed that the conditions in the Larssons'

home had been examined carefully on a number of occasions during the

relevant period; Helena had good contacts with people in her

environment and had since recently had a contact person who had been

heard by the court; moreover, she had visited the applicants on her

own in March 1991: on no occasion had she said that she had been

assaulted by Mr Larsson or shown any sign to this effect.  At the

hearing before the court, she had emphatically denied that he had

behaved improperly towards her.  The court found that there was no

evidence to support the allegation that Helena had been, or ran a

risk of being, a victim of improper conduct on the part of

Mr Larsson.  As regards Mrs Larsson's illness, the Court of Appeal

noted that she spent most of her time at home and that both

Mr Larsson's and Helena's statements indicated that the emotional

ties between Helena and Mrs Larsson had been strengthened, rather

than weakened, since she became ill.  The illness could thus not

constitute an obstacle to the transfer of custody.  Finally, the

investigations provided no evidence to suggest that Thomas's foster

parents, Mr and Mrs Bäckius, were unsuited.  On the contrary, what

emerged in the proceedings was that both children were well cared

for in the foster homes, in a secure and stimulating environment.

 

        A further appeal by the applicants to the Supreme Court is

currently pending.

 

II.     RELEVANT DOMESTIC LAW

 

    A.  The Child Welfare Act 1960 and the 1980 legislation

        replacing it

 

55.     Decisions concerning the applicants' children were based on

the Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960

Act"), the Social Services Act 1980 (socialtjänstlagen 1980:620) and

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").

 

        The Social Services Act 1980 contains provisions regarding

supportive and preventive measures effected with the approval of the

individuals concerned.  The 1980 Act (1980:621), which provided for

compulsory care measures, complemented the Social Services Act 1980;

when they entered into force on 1 January 1982, they replaced the

1960 Act.  In general, decisions taken under the 1960 Act, which

were still in force on 31 December 1981, were considered to have

been taken under the 1980 Act.  As from 1 July 1990 the relevant

legislation has been amended (see paragraphs 64-67 below).

 

56.     It is primarily the responsibility of the municipalities to

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

municipality has a Social Council, composed of lay members assisted

by a staff of professional social workers.

 

        1. Prohibition on removal

 

57.     The Social Council could, after the termination of public

care (for details of the Swedish law on compulsory care, see the

Olsson I judgment, pp. 20-27, paras. 35-50), issue a prohibition on

removal under section 28 of the Social Services Act, which read 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 four 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 preparatory work (Prop. 1979/80:1, p. 541) relevant to

this provision mentioned that a purely passing disturbance or other

occasional disadvantage to the child was not sufficient ground for

issuing a prohibition on removal.  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 (Socialutskottets betänkande 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.

 

58.     According to the case-law of the Supreme Administrative

Court (RÅ 1984 2:78), while a prohibition on removal is in force,

the Social Council is under a duty to ensure that appropriate

measures aimed at reuniting parents and child are taken without

delay.

 

59.     Section 28 of the Social Services Act did not apply to

children who were being cared for in foster homes under section 1 of

the 1980 Act.  As long as such care continued, the right of the

guardian to determine the domicile of the child was suspended.

Whilst that right in principle revived on the termination of such

care, it could be further suspended by an application of section 28

by the social welfare authorities.

 

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

taken under section 28 could 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.

 

        2. Regulation of access

 

61.     While a child was in public care under the 1980 Act, the

Social Council was empowered to impose restrictions on the parents'

right of access to him, in so far as necessary for the purposes of

the care decision (section 16).  Such restrictions could be appealed

against to the administrative courts by both the parents and the

child.

 

62.     The legal position concerning restrictions on access during

a prohibition on removal was different.  As held by the Supreme

Administrative Court on 18 July 1988, a decision by the Social

Council to restrict the access rights of Mr and Mrs Olsson - who

were the appellants in that case - while a prohibition on removal

under section 28 of the Social Services Act was in force had no

legal effect and no appeal to the administrative courts would lie

against such a decision (see paragraph 33 above).

 

        3. Municipal appeal

 

63.     Pursuant to sections 1 and 2 of Chapter 7 of the 1977

Municipal Act (kommunallagen 1977:179), a member (medlem, e.g. a

resident) of a municipality may lodge a municipal appeal

(kommunalbesvär) with the Administrative Court of Appeal against

decisions by municipalities on the following grounds: failure to

observe the statutory procedures, infringement of the law, ultra

vires conduct, violation of the complainant's own rights, or other

unfairness.  The appeal has to be filed within three weeks from the

date on which approval of the minutes of the decision has been

announced on the municipal notice-board.  If the court upholds the

appeal, it may quash the decision, but not give a new decision.

 

    B.  New legislation

 

64.     The provisions of the Social Services Act which related to a

prohibition on removal are now contained, in amended form, in the

1990 Act with Special Provisions on the Care of Young Persons (lagen

1990:52 med särskilda bestämmelser om vård av unga - "the 1990

Act").  This entered into force on 1 July 1990.

 

65.     Section 24 of the 1990 Act, which corresponds to the

previous section 28 of the Social Services Act (see paragraph 57

above), provides that the County Administrative Court may, on

application by the Social Council, impose a prohibition on removal

for a certain time or until further notice.  The condition for such

a prohibition is that there must be

 

        "an apparent risk (påtaglig risk) that the young person's

        health and development will be harmed if he is separated

        from the home".

 

        Although this wording differs from that of section 28 of the

1980 Act, it was not intended, according to the preparatory work

(Prop. 1989/90:28, p. 83), to introduce a new standard.

 

66.     According to section 26 of the 1990 Act, the Social Council

shall, at least once every three months, consider whether a

prohibition on removal is still necessary.  If it is not, it shall

lift the prohibition.

 

67.     Pursuant to section 31, the Social Council may decide to

regulate the parents' access to the child if it is necessary in view

of the purposes of the prohibition on removal.  Such decisions may,

under section 41, be appealed against to the administrative courts.

 

    C.  The Parental Code

 

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

of judgments or decisions regarding custody and other related

matters.

 

69.     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.

 

70.     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.

 

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

than the person entitled to 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 70 above).

 

PROCEEDINGS BEFORE THE COMMISSION

 

72.     In their application of 23 October 1987 to the Commission

(no. 13441/87), Mr and Mrs Olsson alleged a series of violations of

Article 8 (art. 8) of the Convention on the ground, inter alia, that

the Swedish social welfare authorities had hindered their reunion

with Helena and Thomas and had prevented the applicants from having

access to them.  They also complained of a number of breaches of

Article 6 (art. 6) and, in addition, invoked Articles 13 and 53

(art. 13, art. 53).

 

73.     On 7 May 1990 the Commission declared the application

admissible.

 

        In its report dated 17 April 1991 (Article 31) (art. 31),

the Commission expressed the opinion:

 

        (a)     unanimously, that there had been a violation of

        Article 8 (art. 8) on the ground that the restrictions on

        access were not "in accordance with the law";

 

        (b)     by seventeen votes to three, that there had been a

        violation of Article 8 (art. 8) with regard to the

        prohibition on removal;

 

        (c)     unanimously, that there had been a violation of

        Article 6 para. 1 (art. 6-1) on the ground that the

        applicants did not have access to court to challenge the

        restrictions on access to the children;

 

        (d)     by fourteen votes to six, that there had been no

        violation of Article 6 para. 1 (art. 6-1) as a result of the

        duration of the proceedings concerning the termination of

        the public care of Stefan, Helena and Thomas;

 

        (e)     by nineteen votes to one, that there had been no

        violation of Article 6 para. 1 (art. 6-1) with regard to the

        duration of the proceedings under Chapter 21 of the Parental

        Code;

 

        (f)     by nineteen votes to one, that there had been no

        violation of Article 6 para. 1 (art. 6-1) on the ground that

        the Supreme Administrative Court did not hold a hearing on

        the applicants' appeal concerning the prohibition on

        removal;

 

        (g)     unanimously, that there had been no violation of

        Article 6 para. 1 (art. 6-1) in relation to the first

        appointment of a guardian ad litem;

 

        (h)     unanimously, that there had been no violation of

        Article 6 para. 1 (art. 6-1) as a result of the duration of

        the proceedings relating to the second appointment of a

        guardian ad litem;

 

        (i)     unanimously, that it was not necessary to examine

        whether there had been a violation of Article 13 (art. 13)

        in respect of the restrictions on access;

 

        (j)     unanimously, that there had been no violation of

        Article 13 (art. 13) in respect of the first appointment of

        a guardian ad litem.

 

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

opinion contained in the report is reproduced as an annex to the

present judgment*.

 

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 250 of

Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

 

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

 

74.     At the hearing on 22 April 1992, the Government confirmed

the final submission in their memorial admitting violations of the

Convention in that, for a certain period, the restrictions on access

decided by the Social Council were not "in accordance with the law"

and that the applicants had not had a court remedy in respect of

those restrictions.  On the other hand, they invited the Court to

hold that there had been no violation of the Convention in the

present case other than those admitted by them.

 

AS TO THE LAW

 

I.      SCOPE OF THE CASE BEFORE THE COURT

 

75.     The present application of 23 October 1987, as declared

admissible by the Commission, raised a series of complaints as to

(1) the prohibition on removal, its maintenance in force and the

restrictions on the applicants' access to the children while the

prohibition was in force; (2) the length of certain specific

domestic proceedings and the lack of a hearing on appeal; and (3)

alleged violations of the right of access to a court or to an

effective remedy with respect to certain decisions (see the

Commission's decision on admissibility, under the heading

"Complaints", and paragraphs 95 and 176-185 of its report).

 

        In their subsequent pleadings, the applicants appeared to

raise a number of further complaints relating to (a) the decision to

transfer custody of Helena and Thomas to their respective foster

parents (see paragraphs 53-54 above); (b) the independence and

impartiality of the courts which made or upheld this decision; and

(c) the total length of the national proceedings (which had started

in 1980 and were not yet terminated).

 

        These new complaints were, however, not covered by the

Commission's decision on admissibility.  It is true that, on certain

conditions, the rule that the scope of the Court's jurisdiction is

determined by the Commission's admissibility decision may be subject

to qualifications (see, inter alia, the Olsson I judgment, p. 28,

para. 56), but the complaints in question do not meet those

conditions.  The Court therefore has no jurisdiction to entertain

them.

 

        Accordingly, it will not go into the applicants'

circumstantial allegations before the Court to the effect that the

foster parents of Helena and Thomas were for various reasons

unsuited as carers.  The Court presumes, as the Government evidently

did, that these allegations were made solely in support of the

complaints made by the applicants in respect of the transfer of

custody proceedings.  The Court notes, however, that the allegations

were rejected after careful examination by the Court of Appeal for

Western Sweden in those proceedings (see paragraph 54 above).

 

II.     ALLEGED VIOLATIONS OF ARTICLE 8 (art. 8) OF THE CONVENTION

 

    A.  Introduction

 

76.     The applicants' complaints under Article 8 (art. 8) of the

Convention concerned the period from 18 June 1987, when the public

care of Helena and Thomas was terminated (see paragraph 10 above),

to 24 January 1991, when the custody of these children was

transferred to their respective foster parents (see paragraphs 53-54

above).  The applicants contended that the prohibition on removal,

its maintenance in force and the restrictions on access had given

rise to breaches of Article 8 (art. 8) of the Convention, which

provides 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 admitted that there had been a violation of

Article 8 (art. 8) in that until 1 July 1990 the restrictions on

access had no basis in domestic law, but otherwise contested the

applicants' allegations.  The Commission reached a corresponding

conclusion with respect to the restrictions on access, but also

expressed the opinion that the maintenance in force of the

prohibition on removal, without any meaningful contact between the

applicants and their children being established and without any

other effective measure to resolve the existing problems,

constituted a violation of Article 8 (art. 8).

 

    B.  Was there an interference with the applicants' right to

        respect for family life?

 

77.     The prohibition on removal and its maintenance in force, as

well as the restrictions on access, clearly constituted, and this

was not disputed, interferences with the applicants' right to

respect for family life (see, amongst other authorities, the above-

mentioned Eriksson judgment, Series A no. 156, p. 24, para. 58).

 

        Such interference entails a violation of Article 8 (art. 8)

unless it is "in accordance with the law", has an aim or aims that

is or are legitimate under Article 8 para. 2 (art. 8-2) and is

"necessary in a democratic society" for the aforesaid aim or aims

(ibid.).

 

    C.  Were the interferences justified?

 

        1. "In accordance with the law"

 

78.     In the applicants' submission, the measures taken by the

Swedish authorities had, contrary to Swedish law, been intended to

prevent them from being reunited with Helena and Thomas and from

having appropriate access to them.  On the other hand, the

applicants did not seem to question the lawfulness of access

restrictions imposed after the entry into force of the 1990 Act on

1 July 1990 (see paragraph 67 above).

 

                (a) Prohibition on removal

 

79.     The Court observes that the prohibition on removal and its

maintenance in force were based until July 1990 on section 28 of the

Social Services Act 1980 and then on section 24 of the 1990 Act,

which replaced section 28.  Furthermore, it does not appear from the

material before the Court that these measures were motivated by any

considerations other than those mentioned in the relevant

provisions, namely the protection of the children's health.  There

is no evidence for the contention that they were taken in order to

prevent the reunion of Helena and Thomas with their parents.

 

        Moreover, the measures had been upheld on appeals to, or

been renewed by, the administrative courts, albeit in some instances

subject to certain time-limits (see paragraphs 14-17, 22-23 and

25-27 above).  In this connection, it is to be recalled that it is

primarily for the national authorities, notably the courts, to

interpret and apply domestic law (see, inter alia, the Margareta and

Roger Andersson v. Sweden judgment of 25 February 1992, Series A

no. 226-A, pp. 27-28, para. 82).

 

80.     Having regard to the foregoing, the Court, like the

Commission and the Government,  considers that the prohibition on

removal and its maintenance in force were "in accordance with the

law".

 

                (b) Restrictions on access

 

81.     On the other hand, according to an authoritative

interpretation of Swedish law by the Supreme Administrative Court in

the present case, the imposition of restrictions on access while a

prohibition on removal under the Social Services Act 1980 was in

force lacked any legal effect, as there was then no legal provision

on which such restrictions could be based (see paragraph 33 above

and the above-mentioned Eriksson judgment, Series A no. 156, p. 25,

para. 65).  This situation lasted from 23 June 1987 to 1 July 1990,

when the 1990 Act entered into force.  During this period, the

impugned restrictions - as conceded by the Government - were not "in

accordance with the law" for the purposes of Article 8 (art. 8).

 

82.     There has accordingly been a violation of Article 8 (art. 8)

of the Convention in so far as concerns the restrictions on access

between 23 June 1987 and 1 July 1990.

 

        2. Legitimate aim

 

83.     According to the applicants, the aim of the contested

measures was to prevent their reunion with Helena and Thomas.

Moreover, they claimed that they had not been allowed to meet them

on their own because the social welfare authorities and the foster

parents had been afraid that the children might disclose information

about unsatisfactory living conditions in the foster homes.

 

84.     However, as already stated above (see paragraph 79), there

is no evidence that the purpose of the prohibition on removal and

its maintenance in force was to hinder reunion; the Court shares the

view of the Commission and the Government that this measure was

aimed at protecting the children's "health" and "rights and

freedoms".

 

85.     The Court considers that on this occasion it should examine

the aims of all the restrictions on access, irrespective of their

periods of application.  It does not find it established that any of

them was aimed at preventing the family's reunion or the disclosure

of information of the kind indicated by the applicants.  On the

contrary, it is convinced that they pursued the same legitimate aims

as the measures referred to in paragraph 84 above.

 

        3. "Necessary in a democratic society"

 

86.     According to the applicants, the interferences were not

"necessary in a democratic society".  The Government contested this

allegation but the Commission accepted it.

 

87.     In exercising its supervisory jurisdiction the Court must

determine whether the reasons given for the prohibition on removal,

its maintenance in force until the transfer of custody and the

restrictions on access which were in operation throughout this

period were "relevant and sufficient" in the light of the case as a

whole (see the Olsson I judgment, p. 32, para. 68).  This

determination must start with the Social Council's decision of

23 June 1987 - immediately after the Supreme Administrative Court's

judgment of 18 June 1987 terminating the public care - to prohibit

removal of Helena and Thomas from their respective foster homes.

 

        That decision - which was unanimously upheld, at three

levels, by administrative courts which had the benefit of reports

from child psychiatrists and a psychologist as well as from

specialised agencies was essentially based on the consideration that

separating the children from their foster homes would, in the

circumstances obtaining at the time, involve a serious risk of harm

to the children's physical and mental health (see paragraphs 12-17

above).

 

        The prohibition on removal order must be evaluated against

the following background which appears from the file.

 

        Helena and Thomas had been cared for in the foster homes for

a long period that had begun at the end of 1980, in fact for most of

their lives.  Their contacts with their natural parents had been

very sparse indeed: they had not met their mother since 1984, they

had since seen their father only once and there had been no other

contacts with their parents.  They had become strongly attached to

their respective foster families and environment, in which they had

developed in a positive and harmonious manner.  Both children had

expressed a strong wish to remain in the foster homes, had shown

anxiety about the possibility of being forced to return to their

natural parents and had indicated that they would run away were they

to be so returned.  Helena was in an important phase of her personal

development, which might be impaired if she were to be returned

against her own wishes.  Thomas had suffered from certain childhood

disturbances and was still psychologically very vulnerable as well

as emotionally dependent upon his foster parents.  Separating him

from the latter was likely to cause him considerable and

long-lasting psychological harm.

 

        Against this background the reasons for ordering the

prohibition on removal were, in the Court's opinion, both relevant

and sufficient.

 

88.     The prohibition on removal lasted until the transfer of

custody, that is, for a total of three and a half years (June 1987 -

January 1991).  The original order was upheld in three sets of

proceedings and was twice renewed, in 1989 by the Social Council and

in 1990, under the 1990 Act, by the County Administrative Court.

The applicants appealed each time, but these appeals were

unanimously dismissed (see paragraphs 14-17 and 21-27 above).

 

        In all of these decisions the national courts found that

there remained a serious risk that separating the children from

their foster homes would harm them; they pointed out in particular

that there had been insufficient preparatory contacts between them

and the applicants.

 

        Given that the factors indicated in paragraph 87 above did

not essentially change during the period under review, the Court

finds that the reasons for the maintenance in force of the

prohibition on removal were in any case "relevant".  Whether they

were also "sufficient" cannot be ascertained without inquiring why,

despite the fact that as early as the first set of proceedings

relating to the prohibition on removal the Swedish courts had time

and again stressed the crucial importance of adequate preparatory

contacts, these contacts remained insufficient during the whole

period.  It is in this context that the restrictions on access have

to be assessed.

 

89.     The restrictions on access which applied throughout this

period amounted to the following: while the applicants were free to

visit the children in their foster homes as often as they wished,

meetings outside those homes would be organised or allowed only

under such conditions as would dispel the children's apprehensions.

 

        These restrictions - which were supported by opinions of two

psychiatrists and a psychologist (see paragraphs 40, 43 and 49

above) and, above all, were in accordance with the repeated wishes

of the children - were based on reasons similar to those underlying

the prohibition on removal.  The authorities took the view that not

only the children's interests but also their rights under Article 8

(art. 8) of the Convention prevented the authorities from allowing

requests for access under conditions which were unacceptable to the

children.

 

        In view of the situation which obtained, the Court finds

that the restrictions on access were based on reasons which were

"relevant" when it comes to ascertaining whether these restrictions

were "necessary in a democratic society".  It remains to be seen

whether they also were "sufficient": for this purpose they must be

assessed in the context indicated at the end of paragraph 88 above.

 

90.     In doing so, the Court notes firstly that, both under

Swedish law and under Article 8 (art. 8) of the Convention, the

lifting of the care order implied that the children should, in

principle, be reunited with their natural parents.  In cases like

the present, Article 8 (art. 8) includes a right for the natural

parents to have measures taken with a view to their being reunited

with their children (see, as the most recent authority, the Rieme v.

Sweden judgment of 22 April 1992, Series A no. 226-B, p. 71,

para. 69) and an obligation for the national authorities to take

such measures.

 

        However, neither the right of the parents nor its

counterpart, the obligation of the national authorities, is

absolute, since the reunion of natural parents with children who

have lived for some time in a foster family needs preparation.  The

nature and extent of such preparation may depend on the

circumstances of each case, but it always requires the active and

understanding co-operation of all concerned.  Whilst national

authorities must do their utmost to bring about such co-operation,

their possibilities of applying coercion in this respect are limited

since the interests as well as the rights and freedoms of all

concerned must be taken into account, notably the children's

interests and their rights under Article 8 (art. 8) of the

Convention.  Where contacts with the natural parents would harm

those interests or interfere with those rights, it is for the

national authorities to strike a fair balance (see, mutatis

mutandis, the Powell and Rayner v. the United Kingdom judgment of

21 February 1990, Series A no. 172, p. 18, para. 41).

 

        In sum, what will be decisive is whether the national

authorities have made such efforts to arrange the necessary

preparations for reunion as can reasonably be demanded under the

special circumstances of each case.

 

        It is for the Court to review whether the national

authorities have fulfilled this obligation.  In doing so, it will

leave room for a margin of appreciation, if only because it has to

base itself on the case-file, whereas the domestic authorities had

the benefit of direct contact with all those concerned.

 

91.     In this connection the Court notes in the first place that

the judgments rendered by the Swedish courts during the period under

consideration contain some passages which might be understood as

criticising the social welfare authorities for deficiencies in the

making of appropriate preparations for reunion, but equally as

urging them not to let themselves be influenced by the antagonistic

course taken by the applicants and their counsel.  However, the

judgments which were given afterwards, in the transfer of custody

proceedings, clearly take the view that the main responsibility for

the necessary preparations not having been made lay with the

applicants.

 

        Indeed, the Swedish courts repeatedly stressed that in order

to arrange adequate preparatory contacts, good co-operation between

the social welfare authorities and the foster parents on the one

hand and the applicants on the other hand was essential.

Nevertheless, the applicants, although they knew that the access

restrictions corresponded to the children's wishes, refused to

accept them.  They visited the children at the foster homes only

twice (see paragraph 29 above) and also neglected other possible

forms of contact, such as contact by telephone.  Rather than follow

the course of co-operation recommended by the courts, the applicants

instead chose that of continuous hostility: again and again they

demanded access at their home without the foster parents' presence,

which, as they were well aware, was unacceptable not only to the

social welfare authorities but also to the children.  In addition,

they responded to the failure to comply with their demands by

lodging complaints with the police and numerous appeals (see

paragraphs 32-34, 46 and 50-52 above).

 

        The social welfare authorities, for their part, tried to

persuade the applicants to visit the children in their foster homes,

offering to make the necessary arrangements and reimburse their

travel costs and subsistence expenses.  Furthermore, they organised

a meeting in Gothenburg and, after consultation with two experts,

drew up an access plan which cannot be said to have been unduly

restrictive and seems to have satisfied the exigencies of the

situation.  Although this plan was rejected by the applicants, the

social welfare authorities tried, with partial success, to put it

into effect (see paragraphs 29 and 41 above).

 

        In the light of the foregoing, the Court, having regard to

the margin of appreciation to be left to the national authorities,

has come to the conclusion that it has not been established that the

social welfare authorities failed to fulfil their obligation to take

measures with a view to the applicants being reunited with Helena

and Thomas.

 

        Accordingly, the maintenance in force of the prohibition on

removal and the restrictions on access were based on reasons that

were not only "relevant" but also, in the circumstances,

"sufficient" (see paragraph 88 above).

 

92.     The question whether the interferences with the applicants'

right to respect for family life were "necessary" must therefore be

answered in the affirmative.  Consequently, their complaint under

Article 8 (art. 8) fails on this point.

 

III.    ALLEGED VIOLATION OF ARTICLE 53 (art. 53) OF THE CONVENTION

 

93.     The applicants complained that, despite the Court's Olsson I

judgment, the Swedish authorities had continued to prevent their

reunion with Helena and Thomas; the applicants had still not been

allowed to meet the children under circumstances which would have

enabled them to re-establish parent-child relationships.  In their

view, Sweden had continued to act in breach of Article 8 (art. 8)

and had thereby failed to comply with its obligations under

Article 53 (art. 53) of the Convention, which reads as follows:

 

        "The High Contracting Parties undertake to abide by the

        decision of the Court in any case to which they are

        parties."

 

        This allegation was disputed by the Government, whereas the

Commission did not express an opinion on the matter.

 

        By Resolution DH (88)18, adopted on 26 October 1988,

concerning the execution of the Olsson I judgment, the Committee of

Ministers, "having satisfied itself that the Government of Sweden

has paid to the applicants the sums provided for in the judgment",

declared that it had "exercised its functions under Article 54

(art. 54) of the Convention".

 

94.     The Court further notes that the facts and circumstances

underlying the applicants' complaint under Article 53 (art. 53)

raised a new issue which was not determined by the Olsson I judgment

(p. 29, para. 57) and are essentially the same as those which were

considered above under Article 8 (art. 8), in respect of which no

violation was found (see paragraphs 87-92 above).

 

        In these circumstances, no separate issue arises under

Article 53 (art. 53).

 

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

        CONVENTION

 

95.     Mr and Mrs Olsson also complained of several violations of

Article 6 para. 1 (art. 6-1), which provides:

 

        "In the determination of his civil rights and obligations

        ... everyone is entitled to a ... hearing within a

        reasonable time by [a] ... tribunal ..."

 

    A.  Judicial review of restrictions on access

 

96.     The Government, like the Commission, accepted the

applicants' contention that there had been a violation of

Article 6 para. 1 (art. 6-1) on the ground that it was not possible

for them, until the entry into force of the 1990 Act on 1 July 1990,

to have the restrictions on their access to Helena and Thomas

reviewed by a court (see paragraphs 33, 34, 51, 62, 73 and 74

above).

 

97.     For the reasons set out in the above-mentioned Eriksson

judgment (Series A no. 156, p. 29, paras. 80-81), the Court agrees.

Accordingly, there has been a violation of Article 6 para. 1

(art. 6-1) on this point.

 

    B.  Length of certain proceedings

 

98.     The applicants alleged that the duration of several of the

domestic proceedings in their case had, contrary to Article 6

para. 1 (art. 6-1), exceeded a reasonable time.

 

        The Government contested this allegation, which was rejected

by the Commission.

 

99.     The reasonableness of the length of proceedings is to be

assessed in the light of the criteria laid down in the Court's case-

law, in particular the complexity of the case, the conduct of the

applicant and that of the relevant authorities.  On the latter

point, what is at stake for the applicant in the litigation has to

be taken into account in certain cases (see, for instance, the X v.

France judgment of 31 March 1992, Series A no. 236, pp. 89-90,

para. 32).

 

        1.      The proceedings relating to one of the requests made

                by the applicants for termination of the public care

 

100.    The applicants maintained that the examination of one of

their requests for termination of the public care of Helena, Thomas

and Stefan (see paragraph 10 above) had not been concluded within a

"reasonable time".

 

101.    The Court considers - and this was not in dispute before

it - that the starting-point for the relevant periods was

16 August 1984, when the applicants submitted their request to the

Social Council. The periods in question ran until 16 February 1987,

when the public care of Stefan was revoked by the Administrative

Court of Appeal, and 18 June 1987, when that of Helena and Thomas

was terminated by the Supreme Administrative Court, thus lasting

approximately two years and six months and two years and ten months,

respectively.

 

102.    The proceedings concerning Stefan lasted approximately

thirteen months before the Social Council, four and a half months

before the County Administrative Court and twelve months before the

Administrative Court of Appeal; those in respect of Helena and

Thomas took approximately two and a half months before the Social

Council, eleven months before the County Administrative Court,

sixteen and a half months before the Administrative Court of Appeal

and four months before the Supreme Administrative Court.

 

        The proceedings were of a complex nature, involving

difficult assessments and requiring extensive investigations.

Hearings were held before the County Administrative Court in the

case of Helena and Thomas and before the Administrative Court of

Appeal in the case of all three children.

 

103.    There are only two instances in which it is questionable

whether the competent authorities proceeded with proper diligence.

 

        Firstly, it took the Social Council thirteen months to

decide on the request concerning Stefan.  However, the Government

explained that this had been due to certain investigations deemed to

be necessary and the Court accepts this argument.

 

        Secondly, the Administrative Court of Appeal had initially

scheduled a hearing for 21 August 1986, but postponed it until

4 February 1987.  Whilst indicating that they could not state with

any certainty the reasons for this delay, the Government drew

attention to the fact that, between 17 July and 20 November 1986,

the case-file had not been with the Administrative Court of Appeal,

but with the Supreme Administrative Court, which had had before it

another appeal by the applicants.  However, this does not

sufficiently explain why the hearing was postponed for six months.

In view of the nature of the interests at stake, it was of great

importance, as the Commission also noted, that such matters be dealt

with swiftly.

 

        Nevertheless, having regard to the complexity of the case,

the delay was not so long as to warrant the conclusion that the

total duration of the proceedings was excessive.

 

        2.      The proceedings relating to the applicants' request

                under Chapter 21 of the Parental Code

 

104.    Mr and Mrs Olsson further claimed that the proceedings

concerning their request to have Helena and Thomas returned to them,

in accordance with section 7 of Chapter 21 of the Parental Code (see

paragraph 18 above), had exceeded a reasonable time.

 

        Both the Government and the Commission disagreed.

 

        In their main submission the Government disputed the

applicability of Article 6 para. 1 (art. 6-1), on the ground that

the proceedings in issue had been concerned only with the

enforcement of existing rights and not with the determination of the

existence or the content of such rights.

 

        The Court has come to a different conclusion.  There is no

doubt that the outcome of the proceedings in issue affected, in a

decisive manner, the exercise by the applicants of an essential

aspect of their rights in respect of the custody of the children

(see, amongst many authorities, the Skärby v. Sweden judgment of

28 June 1990, Series A no. 180-B, p. 36, para. 27).  Their

application to the County Administrative Court for the transfer of

the children thus gave rise to a "contestation" (dispute) over one

of their "civil rights" for the purposes of Article 6 para. 1

(art. 6-1).  Consequently, this provision is applicable to the

proceedings in question.

 

105.    As to whether the proceedings complied with the requirement

of reasonable time, the Court observes that they lasted for a period

of thirteen and a half months and comprised three levels of

jurisdiction.  Like the Commission, it does not find this to be

excessive for the purposes of Article 6 para. 1 (art. 6-1).

 

        3.      The proceedings relating to the second appointment

                of a guardian ad litem

 

106.    The applicants further contended that the proceedings

concerning the second appointment of a guardian ad litem (see

paragraph 20 above) had exceeded a "reasonable time".

 

        These proceedings lasted a little more than a year and

included three levels of jurisdiction.  The Court agrees with the

Commission that they were concluded within a reasonable time.

 

        4.      Conclusion

 

107.    There has accordingly been no breach of Article 6 para. 1

(art. 6-1) on the three above-mentioned points.

 

V.      MISCELLANEOUS ALLEGATIONS OF VIOLATIONS OF ARTICLES 6 PARA.1

        AND 13 (art. 6-1, art. 13)

 

108.    Before the Commission the applicants submitted that, in the

first set of proceedings challenging the prohibition on removal,

there had been a breach of Article 6 para. 1 (art. 6-1), in that the

Supreme Administrative Court had refused to hold a hearing (see

paragraph 17 above).  They also alleged that, contrary to this

provision, they had not been able to challenge the District Court's

first appointment, on 17 July 1987, of a guardian ad litem for

Helena and Thomas, since they had not been informed of this decision

(see paragraph 19 above).  In addition, they complained that they

did not have an effective remedy within the meaning of Article 13

(art. 13) in respect of the restrictions on access and the decision

of 17 July 1987 to appoint a guardian ad litem.

 

        These complaints, which in the Commission's opinion were

unfounded or did not need examination, were not mentioned by the

applicants before the Court, which does not consider it necessary to

examine them of its own motion.

 

VI.     APPLICATION OF ARTICLE 50 (art. 50)

 

109.    Mr and Mrs Olsson sought just satisfaction under Article 50

(art. 50), according to which:

 

        "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

 

110.    Under this provision the applicants sought 5,000,000 Swedish

kronor for damage.  In support of their claim they maintained, inter

alia, that, despite the Olsson I judgment, the Swedish authorities

had continued to deal with them in the same way.  The compensation

awarded by the Court in that judgment had had no impact; a

significantly higher sum was therefore called for in the present

case.

 

        The Government considered the claim to be "out of

proportion".  They submitted that, should the Court uphold their

contentions on the merits, only a symbolic amount should be granted.

 

111.    The present judgment has found only violations of Article 8

(art. 8), on account of the restrictions on the applicants' access

to Helena and Thomas imposed, for a certain period, without a proper

basis in Swedish law, and of Article 6 para. 1 (art. 6-1), owing to

the absence of a court remedy against the restrictions (see

paragraphs 81-82 and 97 above).  The Court considers that the

applicants must, as a result, have suffered some non-pecuniary

damage which has not been compensated solely by the findings of

violation.  Deciding on an equitable basis, it awards 50,000 Swedish

kronor to the applicants jointly under this head.

 

    B.  Legal fees and expenses

 

112.    The applicants claimed reimbursement of fees and expenses,

totalling 1,286,000 Swedish kronor, in respect of the following

items:

 

(a)     1,269,000 kronor for 625 hours' work by their lawyer in

        respect of the domestic and the Strasbourg proceedings and

        for 80 hours for the preparation of her oral pleadings and

        her appearance before the Court as well as for her journey

        to Strasbourg (in each case at 1,800 kronor per hour);

 

(b)     expenses relating to journeys by the lawyer to meet a former

        foster daughter of the Larsson family in Northern Sweden

        (7,000 kronor) and to attend a court hearing in Gävle

        (2,000 kronor);

 

(c)     3,000 kronor in respect of a further journey to see the

        applicants and an appearance before the District Court in

        Alingsås as well as photocopying and telephone calls;

 

(d)     5,000 kronor to cover work by a translator checking the

        manuscript of the lawyer's oral pleadings before the Court.

 

        With regard to item (a), the Government submitted that costs

referable to the domestic proceedings did not warrant compensation

under Article 50 (art. 50); such costs could have been paid under

the Swedish legal aid scheme had the applicants applied for legal

aid. Furthermore, in their view, the way in which the lawyer for the

applicants conducted the proceedings before the Commission should be

taken into consideration.  The Government questioned whether the

time which she claimed to have spent on the case was necessary and

considered the hourly rate charged too high.

 

        Items (b) and (c), the Government pointed out, seemed to be

related, at least partly, to the domestic proceedings.  They were

prepared to pay reasonable compensation for item (d).

 

113.    As regards item (a), the Court notes that the applicants'

lawyer agreed to act on the basis that she would not ask for fees

under the Swedish legal aid scheme.  Her clients have therefore

incurred liability to pay fees to her.  Legal fees referable to

steps taken, in both the domestic and the Strasbourg proceedings,

with a view to preventing or obtaining redress for the matters found

by the Court to constitute violations of Articles 6 para. 1 and 8

(art. 6-1, art. 8) of the Convention, were necessarily incurred and

should be reimbursed in so far as they were reasonable (see, for

instance, the Olsson I judgment, Series A no. 130, p. 43,

para. 104).

 

        Bearing in mind that the applicants have succeeded only on

the points mentioned in paragraph 111 above and making an assessment

on an equitable basis, the Court considers that the applicants

should be awarded under this head 50,000 kronor, from which must be

deducted the 6,900 French francs already received from the Council

of Europe in respect of legal costs.

 

114.    Items (b) and (c) must be rejected as there is no evidence

that they were necessarily incurred.  On the other hand, the Court

is satisfied that item (d) - translation costs - was necessarily

incurred and was reasonable as to quantum.

 

FOR THESE REASONS, THE COURT

 

1.      Holds by six votes to three that there has been no violation

        of Article 8 (art. 8) of the Convention in respect of the

        prohibition on removal;

 

2.      Holds unanimously that there has been a violation of

        Article 8 (art. 8) on account of the restrictions on access

        imposed between 23 June 1987 and 1 July 1990;

 

3.      Holds by six votes to three that there has been no violation

        of Article 8 (art. 8) on account of the restrictions on

        access imposed after 1 July 1990;

 

4.      Holds unanimously that there has been a violation of

        Article 6 para. 1 (art. 6-1) in that no court remedy was

        available to challenge the restrictions on access imposed

        between 23 June 1987 and 1 July 1990;

 

5.      Holds unanimously that there has been no violation of

        Article 6 para. 1 (art. 6-1) as regards any of the other

        points raised by the applicants before the Commission and

        the Court;

 

6.      Holds by seven votes to two that no separate issue arises

        under Article 53 (art. 53);

 

7.      Holds unanimously that it is not necessary to examine the

        other complaints, under Articles 6 para. 1 and 13 (art. 6-1,

        art. 13), which the applicants made before the Commission

        but did not reiterate before the Court;

 

8.      Holds unanimously that Sweden is to pay to the applicants

        jointly, within three months, 50,000 (fifty thousand)

        Swedish kronor for non-pecuniary damage, and, for legal fees

        and expenses, 55,000 (fifty-five thousand) Swedish kronor

        less 6,900 (six thousand nine hundred) French francs to be

        converted into Swedish kronor at the rate applicable on the

        date of delivery of the present judgment;

 

9.      Dismisses 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

27 November 1992.

 

Signed: Rolv RYSSDAL

        President

 

Signed: Marc-André EISSEN

        Registrar

 

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

Convention and Rule 53 para. 2 of the Rules of Court, the partly

dissenting opinion of Mr Pettiti, joined by Mr Matscher and

Mr Russo, is annexed to this judgment.

 

Initialled: R.R.

 

Initialled: M.-A.E

 

         PARTLY DISSENTING OPINION OF JUDGE PETTITI, JOINED BY

                      JUDGES MATSCHER* AND RUSSO

 

_______________

* Except as regards the penultimate paragraph on page 46.

_______________

 

                             (Translation)

 

        I did not vote with the majority of the Chamber for the non-

violation of Article 8 (art. 8) of the European Convention on Human

Rights as regards the prohibition on removal and restrictions on

access (points 1 and 3 of the operative provisions).  I consider, on

the contrary, that there has been a serious violation of that

Article (art. 8) in respect both of the prohibition on removal and

of the restrictions on access after 1 July 1990, on the same lines

as the findings in the Olsson I judgment (see particularly

paragraph 81 which set out the reasons for concluding that Sweden

had failed to comply with Article 8 in that case) (art. 8).

 

        It appears clear that the social welfare officials did not

take all the steps that they should have done in the light of that

judgment with a view to promoting the exercise of the right of

access and the right to have the children to stay which would have

prepared the way for returning custody of the children to their

parents.

 

        Where the child has been separated from his parents over a

long period (as was the case here and this was a situation for which

the social welfare authorities bore some responsibility in respect

of the period covered by the Olsson I judgment), flexible and

sensitive measures must be taken.

 

        In order to put reflection on the Olsson II judgment more

clearly in context, it is helpful to recall the principal reasoning

of the Olsson I judgment (in which a violation was found by twelve

votes to three):

 

        "82.    There is nothing to suggest that the Swedish

        authorities did not act in good faith in implementing the

        care decision.  However, this does not suffice to render a

        measure 'necessary' in Convention terms ...: an objective

        standard has to be applied in this connection.  Examination

        of the Government's arguments suggests that it was partly

        administrative difficulties that prompted the authorities'

        decisions; yet, in so fundamental an area as respect for

        family life, such considerations cannot be allowed to play

        more than a secondary role.

 

        83.     In conclusion, in the respects indicated above and

        despite the applicants' unco-operative attitude ..., the

        measures taken in implementation of the care decision were

        not supported by 'sufficient' reasons justifying them as

        proportionate to the legitimate aim pursued.  They were

        therefore, notwithstanding the domestic authorities' margin

        of appreciation, not 'necessary in a domestic society'."

 

        The Committee of Ministers confined itself to declaring that

the pecuniary awards made under Article 50 (art. 50) of the

Convention had been duly paid by the Government.

 

        For all the periods considered, the authorities should have

taken steps to ensure: the psychological preparation of the children

and the progressive organisation repeated at least each month of

meetings, at first short ones, if necessary even in the presence of

a psychologist; these meetings could subsequently have been extended

to a day, a weekend, a part of the holidays, under different

conditions to those obtaining for the five series of meetings

referred to in the judgment.  The aim would be to avoid a situation

in which the child, being conditioned by the foster family, adopted

a deliberately obstructive attitude to these visits, which evidently

posed a problem.  It would also have been helpful to make a greater

effort to prepare the parents for the progressive stages, making

allowance for their frustration, for a degree of maladroit

resistance on their part as well as for the difficulties arising

from the need to travel because of the unfortunate choice of the

foster families in terms of the geographical location of their home.

The most important thing was to take account of the parents'

persistent efforts to secure the return of their children, despite

all the obstacles, which confirmed their parental attachment and

their legitimate and consistent claim.  In my view, neither the

social welfare authorities nor the majority of the European Court

sitting as a Chamber gave sufficient weight to the strength and

extent of this attachment.  From 23 June 1987 to 16 June 1989, there

were only five actual meetings (see paragraph 29 of the judgment),

and then no more during the relevant period.

 

        It is true that since the Olsson I judgment these five

attempts at meetings have taken place; the results were

unsatisfactory but that could have been a temporary situation.

 

        However, in view of the large number of misunderstandings

which had built up over the years, these attempts had no chance of

succeeding without an adequate psychological preparation of the

parties concerned.  It is the duty of the social welfare

authorities, and this is one of the most elementary principles of

the methods of educative assistance practised in Europe, where this

type of conflict is frequent, to make specific arrangements.

 

        It is impossible to overcome in a matter of a few hours

years of mutual incomprehension.  Thousands of learned works by

judges, lawyers, doctors, psychiatrists or psychologists, have been

written on this subject.  The technique of using neutral ground for

meetings and progressive contacts is common, under judicial

supervision.  In any event it is always counterproductive for the

parents to have to meet their children on the home ground of the

foster family or in the latter's presence, because that often leads

to the failure of the attempt.

 

        The social welfare authorities displayed what was almost

contempt both for the national courts and the European Court.  It is

somewhat surprising that neither the courts nor the governmental

authorities managed to force the "imperialism" of the social

services to give ground.

 

        At no time did the social welfare authorities take the least

account of the love for their children that the parents sought to

express, a love that was demonstrated by the years of struggle in

proceedings to seek to obtain the return of the children and the

respect of their most sacred rights.

 

        Clearly, the Olsson parents' attitude was not always

helpful, particularly after 1989, and they must therefore bear a

part of the responsibility.  Yet one must not forget their despair

after the repeated failures with which they met even after the

favourable decisions of the European Court and the national courts

(see paragraph 53 et seq. of the present judgment).

 

        Adopting the tactics employed by their lawyers, which were

perhaps too extreme, they hardened their position, but legally they

had a number of valid reasons for doing so.  In any case, the

authorities were under a duty to exert a positive influence, by

showing understanding and making repeated interventions, instead of

reinforcing the differences.

 

        In this type of situation it is necessary to seek to

organise more and more meetings, to educate the children and the

parents, to defuse conflicts. It is unfair to give priority to the

obstinacy of the children and the foster families.

 

        In the same connection, the long delays between each

proceedings or intervention made the situation worse, whereas in

other States and in other jurisdictions, hearings would have been

held at shorter intervals by means of an urgent procedure before a

children's judge.  One is left with the impression that the

authorities were content to allow the intransigence of the parents

to strengthen the position of the social welfare authorities,

despite the fact that the latter had never disguised their

preference for the foster families, as if they sought to accord

greater weight to material comfort than to paternal and maternal

ties.

 

        Viewed from the outside this attitude towards the parents

may seem somewhat "inhuman".

 

        It is to be regretted that reference was not made to the

United Nations Convention on the Rights of the Child so as to permit

the intervention of the children assisted by their lawyers, who

could have played a useful role as mediators.

 

        Whatever the case may be, the general and overall conduct of

the authorities was such that the parents are permanently separated

from their children, and this situation is now irreparable as a

result of the refusal to allow access, a right which is not even

refused to criminal parents in other countries.  The Olsson parents

have been definitively cut off from any family relationship.  It is

difficult to think of a more serious case of a violation of the

fundamental rights protected by Article 8 (art. 8).

 

        As I voted for the violation of the prohibition on removal

and the restriction on access before and after 1990, I also consider

that the Court should have examined the case under Article 53

(art. 53) and analysed the decision of the Committee of Ministers in

the light of the European Court's judgment in the first Olsson case.

 

        It is paradoxical that in the year of the implementation of

the United Nations Convention on the Rights of the Child, which

stresses the importance of parent-child relations, there should have

been such a failure in the application of Article 8 (art. 8) of the

European Convention.